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
Table of Contents
MEMORANDUM and ORDER for JUDGMENT
Following the decision of Beal v. Doe, 1977, 432 U.S. 438, 97 S. Ct. 2366, 53 L. Ed. 2d 464; Maher v. Roe, 1977, 432 U.S. 464, 97 S. Ct. 2376, 53 L. Ed. 2d 484, and Poelker v. Doe, 1977, 432 U.S. 519, 97 S. Ct. 2391, 53 L. Ed. 2d 528, the decision in the present case preliminarily enjoining the enforcement of the so-called Hyde Amendment to the Act making Medicaid appropriations for fiscal 1977 (D.C., 421 F. Supp. 533) was vacated by the Supreme Court (433 U.S. 916, 97 S. Ct. 2993, 53 L. Ed. 2d 1103) and the case was remanded "for further consideration in light of Maher v. Roe . . . and Beal v. Doe ". The Court denied plaintiffs' application for a stay of the execution of the order vacating the decision in this court, 434 U.S. 1301, 98 S. Ct. 27, 54 L. Ed. 2d 11 and plaintiffs' petition for rehearing, 434 U.S. 881, 98 S. Ct. 244, 54 L. Ed. 2d 165. A temporary restraining order entered in this court on July 28, 1977, was vacated on August 4, 1977.
The magnitude of abortion in contemporary societies appears, at least to an extent, from the published statistical data. The 1975 Abortion Surveillance Report of the Center for Disease Control ("CDC"), Department of Health, Education and Welfare, Public Health Service, supplemented by the prepublished tables for the 1976 Surveillance Report, analyzes the reported data on legal abortions in the United States. In the period 1969-1976, the number of legal abortions, the ratio of the abortions to live births, and the number of states reporting were as follows:
The data are not geographically uniform. For those states having 2,000,000 or more women aged 15-44 the figures were in 1976:
Surveys made by the Alan Guttmacher Institute ("AGI") give somewhat higher figures for abortions in the United States:
The percent distribution of legal abortions by classifying characteristics of the patients were given as follows in the prepublished CDC figures for the years 1972-1976:
The CDC data for 1976 give an age bracket distribution for 762,427 of the 988,267 abortions reported for that year. Of these abortions 241,845 were performed for women 19 or younger, 31.7% of the total, a slightly smaller percentage from that given by CDC in the more general "characteristics" table. Detailed age data for 184,938 of the 241,845 "teen age" abortions, reported by 26 states having such data available, showed the following age distribution:
The calculated ratio of abortions to live births by age classes, based on the 762,427 abortions for which there were age data, are given as follows in the CDC tables for 1975 and 1976:
The CDC tables for 1975 and 1976 give the following data from selected states distributing abortions by the number of the patient's previous live births:
The CDC Surveillance material gives some information on abortions in other countries. The data for those countries for which both 1975 and 1976 figures are given are as follows:
The prevalence of illegal abortions in this country before the state legislatures commenced to change the abortion laws, and before the decisions in Roe v. Wade, 1973, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, and Doe v. Bolton, 1973, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201, is not remotely determinable. A 1957 committee estimate of 200,000 to 1,200,000 abortions a year was often referred to, and the AGI Reports on Population/Family Planning, Number 14 (2nd Edition), December 1975, (page 15) found theoretical support for an estimate of 1,000,000 abortions a year. There was a history of maternal deaths due to abortion, and the Health Resources Administration of the Public Health Service (DHEW) had statistics of uncertain tenor covering the years 1960-1975. The figures indicate a distinct reduction in such deaths over the years.
Data supplied by Dr. Christopher Tietze of AGI (Reports on Population/Family Planning, Number 14 (2nd Edition), Supplement, December 1977, page 15) are comparable in trend:
Whatever the extent of illegal abortion before the 1973 decisions of the Supreme Court and the changes in state abortion laws, the opinion current in the medical world was that abortion-related deaths were in large part attributable to illegal induced abortions, and that the general availability of legal abortion services after the 1973 decisions radically reduced mortality due to illegal induced abortion See, e.g., W. Cater & R. W. Rochat, Illegal Abortions in the United States: 1972-1974, in Family Planning Perspectives, Vol. 8, No. 2, March-April 1976 (DHEW reprint).
Therapeutic abortions were long known to medical and hospital practice, and, in general, were performed under strict medical safeguards. There are few data on the number of therapeutic abortions, but data for 1963-1968 gathered from hospitals accounting for from 8% (in 1963) to 26% (in 1968) of live births in hospital if applied to whole number of live births in hospital indicate the following:
The data of the reporting hospitals, broken down by years, gave the following percentage distributions by categories of indications:
A discontinuous series of New York City data on therapeutic abortions performed in New York City in the period 1943-1967
gives the following summary figures, the data for two groups of years being extrapolated from incomplete data:
The New York City data showed a heavy concentration of the therapeutic abortions in the "Private Service" of the voluntary hospitals as against the "General Service" in such hospitals,
and marked concentration of such abortions among white patients as against "others". The data on "indications" for the therapeutic abortions are given and are divided by type of hospital and by service:
The Department of Health, Education and Welfare estimated that it annually financed between 250,000 and 300,000 abortions, principally under Title XIX of the Social Security Act (Medicaid), in the period after the decisions in Roe v. Wade and Doe v. Bolton and before the vacatur of the preliminary injunction and temporary restraining order in the present case. The plaintiff New York City Health and Hospitals Corporation has estimated that over the years 1970-1975 Medicaid financed from 46% to 50.8% of the 112,029 abortions performed in the municipal hospitals for residents of New York City, and financed over the same years from 31.8% to 35% of the 293,713 abortions performed for residents of New York City in other facilities in the city.
In forwarding to the Secretary in June 1977 a list of possible cost savings initiatives the Administrator of the DHEW Health Care Financing Administration included a section opening in this language:
"In 1973, about 3.6 percent of all women aged 15-44 eligible for Medicaid received abortions in States covering abortions. Add to this the proportion of unwanted pregnancies where abortion was rejected, and it is possible that close to half the welfare recipients of child-bearing age have unwanted pregnancies in a single year. In 1975, there were 3.5 million AFDC families, nearly all of whom have women of child-bearing age."
A 1977 study based on a 1973 survey conducted by the National Center for Health Statistics
reached the generalized conclusion that one-fifth of all births to mothers aged 15-44 would not have occurred if the women had given birth only to those babies they reported as "wanted" at the time of conception; the study notes that the survey dealt only with live births (excluding miscarriages and, of course, abortions), and that the answers did not signify that the babies, when born, became "unwanted children." A very small New York sample, from the period before the change in the New York abortion law, indicated that the incidence of pregnancies that were "unwanted" to the point of seeking to abort the birth cut across religious lines.
The Medicaid Act (42 U.S.C. §§ 1396a-1396k), added to the Social Security Act as Title XIX in 1965, authorized the appropriation in each fiscal year of sums sufficient to carry out the purposes of the Medicaid Act, that is, "enabling each State, as far as practicable under the conditions in such State, to furnish (1) medical assistance on behalf of families with dependent children and of aged, blind or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services to help such families and individuals attain or retain capability for independence or self-care." State plans for medical assistance must be submitted to the Secretary of the DHEW for approval; "medical assistance" means payment of all or part of the cost of inclusively described health care services for those eligible for assistance whose income and resources are insufficient to meet all of such cost (42 U.S.C. § 1396d(a)). Where states operate approved plans, the United States pays not less than 50% nor more than 83% of the cost of the medical assistance furnished under the plans.
Approved state plans must provide for making medical assistance available to all individuals receiving aid or assistance under any state plan approved under certain enumerated titles of the Social Security Act, including Part A of Title IV (Aid to Families with Dependent Children, "AFDC"), 42 U.S.C. § 601 et seq., and the plans must provide that the medical assistance so made available to any individuals shall not be "less in amount, duration, or scope than the medical assistance made available to any other such individual," nor less than the medical assistance made available to individuals not receiving assistance under the enumerated titles but deriving their entitlement to medical assistance under schemes within Section 1396a(a)(10)(C) for those who have "insufficient income and resources to meet the costs of necessary medical and remedial care and services." The state plan must provide for some institutional and some noninstitutional care and services, for some home health services for those entitled under the state plan to skilled nursing facilities services, and, in the case of those receiving AFDC, at least (1) inpatient hospital services, (2) outpatient hospital services, (3) other laboratory and x-ray services, (4) skilled nursing facility services for adults, early and periodic screening of eligible minors for, and diagnosis of, their physical and mental defects and such health care of defects and chronic conditions discovered thereby as the Secretary's regulations provide, and family planning services and supplies to eligible individuals of child-bearing age, including minors who can be considered to be sexually active; and (5) physicians' services furnished by a physician, whether the services are furnished in the office, the patient's home, a hospital, a skilled nursing facility, or elsewhere (Sections 1396a(a)(13)(A), (B), and 1396d(a)(1)-(5)). The state plan must "include reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan which . . . are consistent with the objectives of this Title". The Secretary's regulations impose the following general plan requirements (42 C.F.R. § 440.230):
"(a) The plan must specify the amount and duration of each service that it provides.
"(b) Each service must be sufficient in amount, duration, and scope to reasonably achieve its purpose.
"(c)(1) The medicaid agency may not arbitrarily deny or reduce the amount, duration, or scope of a required service under §§ 440.210 and 440.220 to an otherwise eligible recipient solely because of the diagnosis, type of illness, or condition.
"(2) The agency may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures."
(Service under § 440.210 is for the "categorically needy," such as those receiving AFDC; service under § 440.220 is for the "medically needy" provided for under 42 U.S.C. § 1396a(a)(10)(C); see 42 C.F.R. § 435.4).
Before the enactment of the Hyde amendment on September 30, 1976, as Section 209 of the Department of Labor and HEW Appropriations Act, 1977, 90 Stat. 1418, 1434, DHEW had regularly paid the federal share of the cost of abortions performed under approved State plans for medicaid eligibles; it was generally estimated that by 1976 there were approximately 250,000 to 300,000 federally funded abortions annually. The recorded legislative history of the Hyde amendment is comprised in principal part in the extended and bitter debates in the House of Representatives and in the Senate; that debate was renewed and extended in the even more contentious debates on the abortion funding issue in the following year, which ended with enactment on December 9, 1977, of Section 101 of Public Law 95-205, 91 Stat. 1460, of revised language restricting the funding of abortion. The language of the 1977 amendment was carried forward into the Appropriations Act for the fiscal year ending September 30, 1979, as Section 210 of Public Law 95-480 of October 18, 1978, 92 Stat. 1567, 1586, again not without debate. The content and tone of the debates cannot be fairly summarized within any reasonable compass. The accompanying Annex, not intended as a part of this decision but, rather, disclosed as the intermediate basis for statements made about the legislative history in the decision, does give by quotation and summary the course and sense of the debates. The detailed attention given to them is in part necessitated by the evidence adduced to show the nature and intensity of the conflicting pressures brought to bear on the members of both houses in the effort to influence their votes.
The Hyde amendment of September 1976 was introduced on the floor of the House as an amendment to an appropriations bill when efforts to bring the abortion issue to debate on a proposed constitutional amendment had failed. The debates made clear that the amendment was intended to prevent abortions, not shift their cost to others, and rested on the premise that the human fetus was a human life that should not be ended. Both houses viewed the issue as a moral and not a financial issue, sharply debated the place in any restrictive legislation of therapeutic abortion, the importance of leaving to the woman the decision between childbirth and abortion, the question whether a constitutional right to choose abortion rather than childbirth implied a right in the indigent to have the abortion paid for from medicaid funds, argued the issue of discrimination against the indigent woman who decided upon abortion, sought to quantify the practical consequences in death and health damage from illegal abortions that could result from denying funding, were pressed with the argument that the Hyde amendment would have a disproportionately heavy impact on blacks and Hispanics, and threshed out a basis for compromise exclusions from general prohibition against the funding that might be voted. The argument was made that the amendment was improper as an attempt to legislate through an appropriations bill; there were references in the House of Representatives to some members being fearful that they would be "punished at the polls" for their votes on the abortion issue; both houses adverted to the pendency in the Supreme Court of the Maher, Beal and Poelker cases; and throughout there were references to religion and morality and the moral implications of the positions taken in the debate. The House voted the Hyde amendment into the bill, the Senate rejected the amendment completely, and in conference the language of Section 209 was agreed on along with explanatory language in a Joint Statement accompanying the conference report. Section 209 provided:
"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."
The language in the Joint Statement that professed to express the intention of the conferees read:
"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."
After further debate both houses passed the bill, amended to include Section 209; the President vetoed the bill, but he expressed agreement with the restriction on the use of federal funds for abortion. The Congress overrode the veto and the bill became law on September 30, 1976. (See Annex pp. 743-772.) The Secretary did not implement the Hyde amendment until August 4, 1977 (42 F.R. 40486), after the Maher, Beal and Poelker cases were decided and the temporary restraining order in the present case was terminated. The Secretary's release was explicit that federal participation in the cost of abortions would be provided
. . . 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.
" "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."
(See Annex, p. 772.)
By the time the Secretary implemented the 1976 Hyde amendment the first two stages of the 1977 debates concerning imposing restrictions on abortion funding had been completed, the House of Representatives had voted to include in the Labor-HEW appropriations bill the language of the preceding year's Section 209, the Senate had disagreed, and the Senate requested a further conference with the House of Representatives. At that point in the debates the Senate had approved, and the House of Representatives had, in effect, rejected (in favor of the Hyde amendment language) the Brooke amendment, providing that
"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 victims. This section does not prohibit the use of drugs to prevent implantation of the fertilized ovum."
No agreement was reached before the fiscal year ended, and, as the disagreement on the abortion issue continued, resolutions were adopted continuing the appropriations of the previous year through October 31st, then through November 30th, and, finally, on December 7, 1977, a Joint Resolution was adopted appropriating such amounts as might be necessary for the projects or activities provided for in the Appropriation Act, 1978 that had been under debate (H.R. 7555), subject to certain limitations and provisions; Section 101 of the Joint Resolution contained a proviso in the following language:
"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.
"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."
The language was arrived at as the thirtieth version considered in conference committee or during floor debate. The floor debates were concerned with the positions to be taken on (a) rape and incest, (b) health risks of the mother where the threat to her health was not covered by the expression "the life of the mother would be endangered if the fetus were carried to term," (c) preventing fraudulent circumvention of statutory restrictions, (d) teenage pregnancies, (e) prenatally determined fetal defects, and (f) funding procedures not generally regarded as abortion, such as preventing the implantation of the fertilized ovum and terminating ectopic pregnancies. But underlying the long debate were premises of surprising clarity that were irreconcilable in controlling principle, but which were resolved in legislative terms at a point that satisfied neither side, at their extremes of view, and reflected a seeming middle position that at least in Senator Dole's telling phrase, seemed to express the sort of compromise
without which "a democracy would wither in its own indecision" (see Annex p. 835, 123 Cong.Rec. S 19438, daily edition). The major premise of the advocates of the Hyde amendment in its original form was that abortion was the taking of human life. The major premise of the opponents was that the woman's constitutionally protected right of privacy encompassed her medically advised decision whether or not to terminate her pregnancy; underlying that premise was the holding in Roe v. Wade that the unborn were not persons within the meaning of the Fourteenth Amendment.
The conflict in basic principle was reflected in the complexities of the debate about the victims of rape and incest: from the one point of view principle forbade any exception from the prohibition of funding abortions in the case of victims of rape and incest; the 1976 legislation allowed no such exception. From the other viewpoint the victim of rape or incest presented the paradigmatic instances in which there should be freedom of choice. The effort on the one side was to limit any exception for rape victims to victims of forced rape where the incident was promptly reported; the prompt report requirement was extended to incest, although it was assumed that the most general case was parental abuse of very young females. In the end the requirement of prompt report was retained and the limitation to "forced" rape was dropped; in the opinion of some members of the House of Representatives the Secretary should have interpreted the statutory language to exclude abortion from the "medical procedures" permitted to be funded where the rape or incest was promptly reported. From the standpoint of the supporters of the Hyde amendment the exception allowing the funding of abortions where the life of the mother would be endangered if the fetus were carried to term went far enough, if not too far, in preferring one human life over another, and in subjecting the fetal life to a physician's uncontrolled judgment. From the other side, the life endangerment exception was more restrictive than the law that preceded Roe v. Wade in stating too narrowly the occasions of therapeutically justified abortion. An effort to broaden the exception to cover abortion "where medically necessary" was met with the objection that it would allow so much medical discretion that it would amount to funding abortion on demand. The later substitution of the "severe and long-lasting physical health damage" language was objected to as little different from the "medically necessary" phrase; the insertion of the word "physical" at least arguably excluded purely psychiatric damage; yet, in the end, only the last minute addition of the "two physicians" requirement made enactment possible. Throughout much of the debate proponents of the restrictive amendment argued that to express the restriction in terms that depended to any significant extent on a physician's judgment was to maximize the risk of fraudulent impositions that would come to abortion on demand; even the "two physicians" requirement was seen as only mildly if at all diminishing the risk of fraud. On the other side the response was that whether or not to terminate an abortion for health reasons was intrinsically a medical question so many faceted that the Congress had not the expertise to draft criteria to define therapeutically justifiable abortions, and had no rational alternative to leaving medical questions to the decision of the medical profession; it was argued that Congress could not reasonably legislate on the assumption that the medical profession was untrustworthy. The problem of "teenage pregnancies" was much debated, and effort was directed to obtaining exception from the restriction on funding for, at least, those in the lower teens; those proposing exception emphasized the high incidence of permanent health damage due to teenage childbearing and the diminished health and nurture prospects of babies born to immature mothers. On the other side it was argued that the response to teenage pregnancy was not abortion but extension of family planning facilities directed to reducing the occasions for considering abortion as an alternative to childbearing, and improved health care and supportive measures for child mothers and their babies. The legislation as enacted made no exception for teenage pregnancies, except to the extent that deleting the word "forced" before "rape" might have that effect. Cf. 42 C.F.R. § 441.205; see "Response" and "Comment", 43 F.R. 31868, 31873. Opponents of restrictions on abortion funding sought exception for abortion funding in cases in which it was determined that the fetus, if carried to term would suffer serious health damage; it was indicated, too, that the "medically necessary" formulation, at one stage in 1977 approved in the Senate, would embrace judgments based on the health of the fetus; other conditions were referred to, but two, used as typical of what was intended, were Tay-Sachs disease and Down's syndrome (mongolism or trisomy 21 syndrome). Proponents of restrictions on abortion funding questioned the reliability of prenatal determinations of grave fetal abnormality and argued that fetal abnormality did not mean that the fetus was not a human being and that society should not destroy but find means of caring for such a fetus. The 1977 enactment did not provide any exception for cases of prenatally determined grave fetal abnormality. The provision for drugs or devices to prevent implantation of the fertilized ovum and for medical procedures necessary for the termination of ectopic pregnancies traced to the Joint Statement in the Conference Report of September 15, 1976, and to the Secretary's August 4, 1977, ruling (Annex pp. 763-764, 772). It occasioned little debate.
While the debate in both years was on a rider to the departmental appropriations bill, it was quickly established that the restriction on abortion funding was not an economy measure; it was recognized that if an abortion was not performed for a medicaid eligible woman, the medicaid and other costs of childbearing and nurture would greatly exceed the cost of abortion. Opponents of funding restriction were equally at pains, however, to make clear that they did not favor funding abortion as a means of reducing the government's social welfare costs. It was more than once stated that pressing the Hyde amendment was an alternative means of forcing the abortion issue to debate in both houses, a means employed only because efforts to bring a constitutional amendment on abortion to a vote in both houses had repeatedly failed. The debates demonstrate that the purpose of the funding restriction was to its proponents a means of preventing abortions. Representative Hyde described to a Maryland audience on October 29, 1977, the circumstances of the introduction of the 1976 Hyde amendment in these terms:
"(Representative) Bauman got me aside one day and said this bill was coming up that appropriated all sorts of money for abortions and wouldn't it be a nice idea if we could just sneak an amendment in there that would halt this nefarious practice . . .. I might add that (Representative Bauman) drafted the amendment and we waited and handed it up and the next thing I knew I was in the well addressing my colleagues on behalf of the right to life."
Opponents of the restrictions argued that denying funding would not prevent abortions, but would only deny to indigent women the means of safe abortion and result in increased resort to illegal and self-induced abortions with a consequent increase in maternal deaths and post-abortion health complications. But near the close of the 1978 debate Representative Bauman, an uncompromising supporter of the Hyde-Conte amendment in the 1976 form, felt able to assert (124 Cong.Rec. (95th Cong., 2d Sess). H 12518, daily edition):
"We do not have the final statistical analysis, but the past actions of Congress restricting abortions is having the desired effect. Children are being permitted to live. That is what the entire battle on this issue has been about from the beginning."
Proponents of the restrictions argued, too, that the Congress should not authorize the use of tax funds to pay for abortions when it knew that the majority of the citizens were opposed to abortion for any purpose except to preserve the life of the mother. Several times, in both houses, members cited the New York Times-CBS poll of July 1977 which reported on whether people thought the government should help poor women to pay for:
The argument was that taxpayers should not be required to pay for what they disapproved of on moral grounds. But the opponents of funding restrictions answered that precisely that argument, made by opponents of the Vietnam war, had been rejected by the Congress.
It was more than once agreed that the issue under debate was a moral one and that religious conviction entered into the positions taken; to the argument, at times made, that the proponents of funding restrictions were seeking to impose an inherently religious belief on those who did not share the belief, several answers were made: that abortion funding, too, reflected a moral view and imposed it on the unborn; that the view that human life began at, or soon after, conception was the teaching of biology not of theology, the religious view coming into play only through the familiar and universal precept that innocent human life cannot be taken; and that, in any case, much of statutory law embodies moral beliefs and gives moral precept the force of law. While it was argued that acceptance of the exception allowing funding where the life of the mother would be endangered if the fetus were carried to term was a compromise of principle that opened the way to a range of further exceptions, including exceptions for rape and incest, severe fetal abnormality, serious health damage to the pregnant woman and grave threats to mental and emotional stability, the proponents of restriction throughout considered the life endangerment exception, itself thought to be subject to abuse, the only arguably defensible exception to the prohibition. The debate, in ultimate terms, dealt only with therapeutic abortions and came down to determining what therapeutic abortions would be funded. "Abortion on demand," abortion for social convenience, abortion as an element of family planning, none of these found articulate sponsorship. Generalized health reasons were marshalled, although unsuccessfully, to support some special consideration for pregnant children in the lower teens, and to the health reasons were added arguments based on the usually unmarried indigent child-mother's inadequacy to care for her child, to support herself, and to complete her education to the point of self-sufficiency. To some extent opponents of restriction on funding argued that the Congress should not make by public law the decision that the Supreme Court had said that it was the constitutional right of the pregnant woman to make privately in consultation with her physician, but, particularly after the Maher, Beal and Poelker decisions, the answer made was that denial of funding was not a denial of the constitutional right.
Throughout opponents of restrictions on funding argued that such restrictions discriminated against the indigent; it was argued with some confidence before the Maher, Beal and Poelker decisions that the Court would invalidate the restrictions, and it was argued, after those decisions, on the other side, that they validated the Hyde-Conte amendment of 1976. The decisions, however, hardly changed the trend of debate; opponents of restrictions, saying that the Court meant that federal and state legislatures should define funding policy, argued, as before, that Congress should not discriminate against the indigent by denying to them the means of making effective their decisions to terminate their pregnancies. In this context both sides argued that the Government should be neutral: proponents of restrictions on funding argued that by not funding the Government simply withdrew a factor that favored and encouraged abortion; opponents of restrictions on funding argued that to withdraw funding of abortions while continuing to fund child-birth abandoned neutrality, and denied the indigent the right to choose one alternative.
The debates do reflect consciousness of the interest of the voters in the issue, and of the fact that some number of voters considered that a member's or a candidate's stand on the abortion issue alone would be decisive of how the voter used his or her ballot. The members of the House of Representatives were aware that they might be "punished at the polls" for their stand on abortion and abortion funding, and the debates refer more than once to the extent and zeal or organized advocacy, particularly on the side of the "right to life" group.
Nearly all who took part in the debates deplored the circumstance that the issue was being debated upon a proposed amendment to an appropriations bill. It was recognized that under the rules of the House such an amendment was, strictly, almost certainly not in order since it evidently imposed affirmative duties of action on officers of government; it was noted more than once that the consequence was that there were neither hearings nor committee reports on the subject matter of the amendment. There were references to the hearings that had been conducted on the proposed constitutional amendment,
and, as noted above, proponents of the funding restriction justified their course by reference to what they considered the unwholesome frustration of their efforts to bring a constitutional amendment respecting abortion to issue in both houses. Each side at one time or another charged the other with holding legislation hostage until the other side yielded on the issue. What is most remarkable in the long debates is that for all their complexity and occasional rhetorical brilliance neither side was remotely sensible of the evils that the other side saw clearly and sought to efface or at least ameliorate.
The legislation finally passed in 1977 and in 1978 was so far a compromise of principle that Representatives Bauman, Conte, Flood and Hyde, advocates of the original Hyde amendment, voted against it. The critical last votes in the Senate were not recorded.
The much shorter debates that led to the reenactment of the 1977 proviso as Section 210 of the 1979 Appropriation Act reflected no substantial change in the arguments made on both sides.
The bill became law on October 18, 1978.
Other enactments in October and November 1978 dealt with the abortion issue. The International Development and Food Assistance Act of 1978, in the past devoted to population planning and health planning, which emphasized reducing the rate of population growth in developing countries and motivation for small families, was amended to provide in 22 U.S.C. § 2151b(f)(1) that
"None of the funds made available to carry out this subchapter may be used to pay for the performance of abortions as a method of family planning or to motivate or coerce any person to practice abortions."
(P.L. 95-424, October 6, 1978, 92 Stat. 937, 946.) In the Foreign Assistance and Related Programs Appropriation Act, 1979, the Peace Corps appropriation provision read
"For expenses necessary for Action to carry out the provisions of the Peace Corps Act, as amended (22 U.S.C. § 2501 et seq.) $ 95,000,000; . . . Provided further, That none of the funds appropriated in this paragraph shall be used to pay for abortions."
(P.L. 95-481, 92 Stat. 1591, 1597). Section 863 of the Department of Defense Appropriation Act, 1979, enacted October 13, 1978 (P.L. 95-457, 92 Stat. 1231, 1254), was in exactly the language of Section 210 of the DHEW Appropriation Act, 1979 (92 Stat. 1567, 1586). The amendment of Title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy (designed to deal with a holding in Nashville Gas Co. v. Satty, 1977, 434 U.S. 136, 98 S. Ct. 347, 54 L. Ed. 2d 356) (P.L. 95-598 of November 6, 1978, 92 Stat. 2679) emerged as 42 U.S.C. § 2000e(k) in the following form:
"(k) The terms "because of sex' or "on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion."
The legislation providing for the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (P.L. 95-622, 92 Stat. 3412, 3439) provided (42 U.S.C. § 300v-1(a)(1)) that
"The Commission shall undertake studies of the ethical and legal implications of
(B) the matter of defining death, including the advisability of developing a uniform definition of death;
(C) voluntary testing, counseling, and information and education programs with respect to genetic diseases and conditions, taking into account the essential equality of all human beings, born and unborn."
Earlier, The Legal Services Corporation Act included a provision, 42 U.S.C. § 2996f(b), that no funds made available to the Corporation under the subchapter by grant or contract may be used
"(8) to provide legal assistance with respect to any proceeding or litigation which seeks to procure a nontherapeutic abortion or to compel any individual or institution to perform an abortion, or assist in the performance of an abortion, or provide facilities for the performance of an abortion, contrary to the religious beliefs or moral convictions of such individual or institution . . . ."
When subsection (b) was extensively amended by P.L. 95-222, on December 28, 1977, 91 Stat. 1619, 1622, the Congress reenacted subdivision (8) without change. The Civil Rights Commission in its 1975 report, "Constitutional Aspects of the Right to Limit Childbearing," page 101, had recommended amending the Act to permit abortion related suits.
The Hyde-Conte amendment of 1976 and its successors, coupled with the decisions in Maher, Beal and Poelker, have been dominant factors in state abortion legislation, state administration of medicaid in the abortion context, and in drastically reducing the number of federally funded medicaid abortions. The alterations in state law and administration precipitated a number of suits challenging the validity of the amended laws and altered regulations. After the Maher, Beal and Poelker decisions, and the termination of the restraining order in the present case, certain states which were already applying a "medically necessary" standard continued to do so (Alaska, California, Colorado, District of Columbia, Hawaii, Idaho, Illinois, Maryland, Massachusetts, Michigan, New Hampshire, New York, Oregon, Pennsylvania, South Dakota, Virginia, Washington, West Virginia, and Wisconsin) although the scant reported data indicate wide differences in administering the criterion. Twenty-five states
soon commenced to apply the standard of the Hyde-Conte 1976 amendment; they were states that had reported 288,363 of the 988,267 legal abortions reported to CDC for 1976. Three states restricted reimbursement to abortions performed to preserve the woman's life.
Wyoming provided reimbursement for abortions in the case of rape, incest and where the life of the mother is endangered. Minnesota had no effective regulations and stopped all reimbursement at September 1977 until after it enacted a "preservation of life" statute.
After the December 9, 1977, enactment the Secretary on January 26, 1978, issued regulations which were amended in July 1978; the states that had covered "medically necessary" abortions in the main continued to do so, or were required to do so, and litigation resulted in adding Illinois, New Jersey, and Massachusetts to the states providing "medically necessary" procedures. Seventeen states,
principally from among those that had adopted the Hyde-Conte 1976 standard, followed the federal lead in adopting the standard of the December 9, 1977, "Hyde amendment." Nine states have adhered to or adopted the standard of the Hyde-Conte amendment of 1976.
Iowa, California and Maryland have more recently provided funding for abortion where the fetus is physically deformed, mentally deficient, or afflicted with congenital illness.
Kentucky and South Dakota adopted a "preservation of life" standard like that earlier adopted by Rhode Island and North Dakota.
Litigation has to some extent modified the pattern of state law and administration governing abortion funding. Soon after Maher, Beal and Poelker, it was indicated in Emma G. v Edwards, E.D.La.1977, 434 F. Supp. 1048, 1050, that under Title XIX of the Social Security Act therapeutic abortions are medically necessary procedures, requests for payment for which should be processed and paid as are all other requests for payment for medically necessary services. The court invalidated the Louisiana statutory requirement that all abortions, including those performed in the first trimester, be performed in a licensed hospital. In a later decision in the same case (November 27, 1978) the court held that Louisiana statute forbidding the use of public funds for abortion "except when the abortion is medically necessary to prevent the death of the mother" violated the requirements of Title XIX by failing to cover "medically necessary" abortions; the court declined to pass on the effect of the 1976 and 1977 forms of the "Hyde amendment." Without passing either on the question of the interpretation of the Title XIX standard or the effect of the 1976 and 1977 "Hyde amendments," the court in Doe v. Kenley, 4th Cir. 1978, 584 F.2d 1362, held that, Virginia having adopted the policy of eliminating funding only for non-therapeutic abortions, as defined in Beal and Maher, the standard used in the required physician's certificate should be "substantial endangerment of health" and not "endangerment of life," and that the state health authorities should be directed immediately to issue a public notice for the benefit of recipients and a written communication to physicians and hospitals participating in the medicaid program which "clearly set forth the standard for reimbursement to be one based upon a physician's professional medical judgment that the health of the recipient would be substantially endangered if the fetus were carried to term and that such judgment shall "be exercised in light of all factors physical, emotional, psychological, familial, and the woman's age relevant to the well-being of the patient,' Beal v. Doe, 432 U.S. at 442, n. 3, 97 S. Ct. (2366) at 2369, n. 3, citing Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201". The court authorized changes in the certificate forms and in the regulations to conform to federal requirements for federal funding of abortions for which the state chose to seek federal funds. In Smith v. Ginsberg, S.D.W.Va.1978 (Civil Action No. 75-0380CH), the court decided that the state did not have to include coverage of unnecessary abortions in its plan but was required by Title XIX to cover all "necessary medical services," and, therefore, to fund "necessary (i. e., therapeutic) abortions"; the court expressed a doubt about the effect of the "Hyde amendment" and retained jurisdiction pending further consideration of that issue.
Roe v. Casey, E.D.Pa.1978, 464 F. Supp. 487, challenged the validity of the Pennsylvania law forbidding medical assistance payments for any abortions except those necessary to save the life of the mother. The plaintiffs were women whose pregnancies did not endanger their lives but whose physicians had certified that in their cases abortions were medically necessary: one plaintiff suffered from hyperemesis gravidorum and pregnancy complicated that condition; another plaintiff was a thirteen year old whose small pelvis implicated probable difficult labor and internal damage, increased incidence of pre-eclampsia and adverse affectation of her nutritional status; the third plaintiff, having a history of psychiatric problems, had been hospitalized because of an attempted suicide, and her physician certified that her pregnancy had increased her depression, that she was capable of suicide and that an abortion was necessary to avert severe psychological damage. The court held that Title XIX of the Social Security Act required participating states to provide all "medically necessary" services, including "medically necessary" abortions, to eligible participants and that by limiting medicaid reimbursement to those abortions that were necessary to save the mother's life the state arbitrarily discriminated among medically necessary abortions on the basis of diagnosis, type of illness or condition involved (cf. 42 C.F.R. § 440.230(c) as amended). The court considered that the 1977 "Hyde amendment" simply affirmed the conclusion in Beal that the states were not required to fund non-therapeutic abortions.
Preterm, Inc. v. Dukakis, 1st Cir. 1979, 591 F.2d 121, considered the validity (in terms of compliance with Title XIX and with the "Hyde amendment" of 1977) of the Massachusetts statute that limited state funding of abortion to those "necessary to prevent the death of the mother" and to those procedures "necessary for the proper treatment of the victims of forced rape or incest." The court held that Beal should not be read as a ruling that all services within the five types of service required to be furnished to the categorically needy (e.g., AFDC eligibles) that a patient's physician deems "medically necessary" must be provided by the state's plan; the legislature has first to decide what kinds of medical assistance are sufficiently necessary to be covered in its Title XIX plan; the physician decides whether his patient's condition warrants administering a type of medical assistance that the plan covers. The statute was to be tested by answering the question whether or not limiting abortions as it did was "reasonable" and "consistent with the objectives of" Title XIX, as 42 U.S.C. § 1396a(a)(17) requires. The court found that the Massachusetts statutory limitation violated the purposes of Title XIX and discriminated impermissibly among medically complicated pregnancies a discrimination based on medical condition that 42 C.F.R. § 440.230(c)(1) forbids. The court found that the 1977 "Hyde amendment" did not embody a reasonable standard consistent with the objectives of Title XIX (42 U.S.C. § 1396a(a)(17)), that the amendment could not be read as denying federal funding while nevertheless continuing the Section 1396a(a)(17) requirement that state plans embody reasonable standards consistent with the objectives of Title XIX, but that the amendment constituted a substantive policy decision concerning the public funding of abortions which left the states free to fund more abortions than those for which the amendment made federal funds available but did not require them to do so. Title XIX, "to the extent of its repugnancy with the Hyde Amendment, has therefore been altered by the Amendment." The court differed from the district court in concluding that Title XIX "does not mandate that a state provide all medically necessary services as determined by the physician." The case was remanded for consideration of the constitutionality of the "Hyde amendment," construed as a substantive alteration of Title XIX and thus requiring the states to establish plans that provide abortion services in no more than those instances specified in the amendment.
In Reproductive Health Services v. Walsh, W.D.Mo.1979 (No. 77-4171-CV-C) the court held that the Missouri regulation, limiting abortion funding to the cases in which the physician in his best judgment believes that full-term pregnancy and childbirth would cause cessation of the mother's life, contravened Title XIX and transgressed the equal protection clause; the court held that the state did not have to bear the cost of all "medically necessary" abortions but was required only to fund abortions for the needy insofar as it received medicaid reimbursement under the "Hyde amendment."
Zbaraz v. Quern, 7th Cir. 1979, 596 F.2d 196, followed Preterm, Inc. v. Dukakis, supra, in holding that the Illinois statute limiting funding to abortions necessary to preserve the life of the pregnant woman was violative of Section 1396a(a)(17) and 42 C.F.R. § 440.230(c)(1), and in holding that the "Hyde amendment" altered the substantive requirements of Title XIX. In remanding the case for consideration of the constitutionality of the "Hyde amendment" the court said (596 F.2d at 202):
"This consideration should include, inter alia, whether the Hyde Amendment, by limiting funding for abortions to certain circumstances 18 even if such abortions are medically necessary, violates the Fifth Amendment in view of the facts that no other category of medically necessary care is subject to such constraints and that abortion has been recognized as a fundamental right. Roe v. Wade, supra."
Footnote 18 reads:
"The constraints imposed by the Hyde Amendment on medically necessary abortions which are not imposed on other kinds of medically necessary care include (1) a greater degree of potential harm from withholding treatment (the threatened damage in the case of an abortion must be "severe and long-lasting'), (2) the threatened harm must be physical, and (3) two doctors must make the determination of likely harm."
Upon remand the district court on April 29, 1979, decided that both the Illinois statute and the "Hyde amendment" were invalid on equal protection grounds, and its final decree required Illinois to fund medically necessary abortions prior to viability; the district court refused to stay the injunction pending appeal. On May 24, 1979, Mr. Justice Stevens denied the appellants' applications for a stay.
Committee to Defend Reproductive Rights v. Myers, 1979, 93 Cal.App.3d 492, 156 Cal.Rptr. 73, dealt with a statute providing funding for abortions where the life of the mother would be endangered if the fetus were carried to term, where the pregnancy resulted from promptly reported rape, unlawful intercourse, or incest, where amniocentesis indicated that the child was likely to suffer from certain genetic or congenital abnormalities, and where severe and long-lasting physical health damage would result if the pregnancy were carried to term on account of any of ten specific conditions or diseases when so certified under penalty of perjury by two physicians. The court held that the statute transgressed Title XIX as modified by the "Hyde amendment" in limiting the severe and long-lasting health damage to the ten enumerated conditions.
The court in Doe v. Busbee, N.D.Ga.1979, 471 F. Supp. 1326, did not address the constitutional issues, finding that the statutory issue was dispositive of the case. Under the state's rules governing medical assistance medicaid reimbursement for abortion was available only in the instances outlined in the "Hyde amendment" as enacted in 1977. The court concluded that Title XIX required state plans to provide all medically necessary services to the categorically needy which fell within 42 U.S.C. § 1396d(a)(1)-(5), that abortion was a medical procedure within the five general categories, and that in consequence the Georgia rules were inconsistent with the objectives of Title XIX (42 U.S.C. § 1396a(a)(17)). Declining to follow Preterm and Zbaraz in holding that the "Hyde amendment" substantively modified Title XIX, the court held that the amendment operated only to restrict the use of federal funds for abortions. The court enjoined the defendant public officers from refusing to provide medicaid reimbursement for the medically necessary abortions of the plaintiffs. Right to Choose v. Byrne, 169 N.J.Super. 543, 405 A.2d 427, Chancery Division, Middlesex County, 1979 (No. C-3817-77), somewhat similarly, held invalid proposed guidelines for abortion funding framed in the language of the 1977 "Hyde amendment"; the court reasoned that withholding medicaid funding for medically necessary abortions, although such funding had been previously available, was unconstitutionally discriminatory against medicaid eligible women with a medical necessity for an abortion, was without warrant in a compelling state interest, and was violative of the equal protection clause; the court considered that restrictions on the right to public benefits for the protection of one's health, which had theretofore been provided by general legislation, could be sustained only if a compelling state interest justified withholding medicaid funding for medically necessary treatment or procedure. The court authorized an injunction providing for funding of abortions where the medical indications as to the necessity of an abortion are not insignificant and relate to the physical and/or psychological condition of the woman and are not based solely on considerations of family planning or emotional or social convenience. And Hodgson v. Board of County Commissioners, D.Minn. July 13, 1979 (4-78 Civ. 525 and 3-79 Civ. 56), held invalid under Title XIX the provision of the Minnesota funding law which restricted funding for therapeutic abortions to those in which two physicians certified that the abortion was necessary to prevent the death of the mother and the woman had given her consent in writing; the court concluded that the "Hyde amendment" did not substantively alter or amend Title XIX, and it made no finding or conclusion respecting the constitutionality of the amendment. Similarly, Planned Parenthood Affiliates of Ohio v. Rhodes, S.D.Ohio, 1979, 477 F. Supp. 529, invalidated under Title XIX an Ohio statute forbidding the use of state funds, or federal "pass-through" funds, to pay for abortions unless two physicians stated in writing that the abortion was "medically necessary to prevent the death of the mother," or unless the pregnancy resulted from rape reported within forty-eight hours after the incident or within forty-eight hours after the victim had become physically able to report the rape (as certified by two physicians), or unless the pregnancy resulted from an incest reported, with the name of the guilty relative, before the abortion was performed. The court rejected the view that the "Hyde amendment" either substantively amended Title XIX or relieved the states of their obligation to fund all those services required to establish consistency with the objectives of Title XIX even though one or more of the required services might not be reimbursed by the federal government.
Doe v. Percy, W.D.Wis., 1979, 476 F. Supp. 324, granted a preliminary injunction against Wisconsin's making any payments under its Medical Assistance Plan for medical services related to pregnancy unless it also provided funds "for all medically necessary abortions (for indigent women eligible under the Plan) in the same manner and under the same procedures applicable to reimbursement for pregnancy related medical care." Plaintiff Doe had become pregnant while under psychiatric treatment; her psychiatrist diagnosed her as suffering from a depression neurosis including suicidal feelings and threats, which, in the psychiatrist's medical judgment, had to be taken as a serious threat to her life and health; referred to an obstetrician and gynecologist, plaintiff Doe requested an abortion; the obstetrician, although he concurred in the psychiatrist's judgment "that an abortion was necessary to preserve Doe's health," declined to perform the abortion because he would not have been reimbursed for it under the Wisconsin Medical Assistance Program. The Wisconsin statute provided funding for only those abortions "directly and medically necessary to save the life of the woman," or "directly and medically necessary to prevent grave, long-lasting physical health damage to the woman," or in cases in which the pregnancy resulted from sexual assault or incest. After a painstaking analysis of the Poelker and Maher cases in the light of Roe v. Wade, the court concluded
"I rely upon Roe v. Wade in assessing the probability that plaintiffs will ultimately prevail in their contention that when the right of choice (between childbirth and abortion) is claimed by a woman whose health is threatened by a continuation of a pregnancy, the right is to be regarded as fundamental. It is that same authoritative decision, as it happens, in which it was decided that in a case like this one, the governmental interest in potential life is insufficiently compelling to override the freedom of the pregnant woman to choose abortion even in the final stages of pregnancy. I hold that plaintiffs enjoy a strong probability of ultimate success in their contention that this interest of the state in the challenged classification embodied in (the Wisconsin statute) is insufficiently compelling. If this is correct, no other governmental interest could qualify as compelling."
The earlier case of D.R. v. Mitchell, D.Utah 1978, 456 F. Supp. 609 upheld, against constitutional and Title XIX arguments, the Utah statute limiting funding to the cases in which the mother's life would be endangered if the abortion was not performed. The court declined to hold that funding should be extended to those cases arising after December 7, 1977, in which there would be severe and long-lasting physical health damage to the mother if the pregnancy were carried to term. The court considered that the state did not have to fund every medical service for which there might be federal reimbursement under Title XIX.
The necessarily incomplete data on the number of federally funded medicaid abortions performed after the restraining order in the present case was terminated have been separated as between the reported cases from August 4, 1977, until February 13, 1978, when the Secretary's regulations became effective and later periods. The data for the first period are both incomplete and of limited reliability because of a complex of reporting problems. However, in light of later and better data they appear to portray correctly, as far as they go, the effect of the amendment and the Maher, Beal and Poelker decisions. These data, revised to June 7, 1978, for twenty-two states (excluding New York, California, Illinois and Pennsylvania) show a radical decrease in average monthly number of abortions. The form that the local laws took appears not to have had a controlling effect. Grouped by (A) states using essentially the "Hyde amendment" language, (B) states funding only "life endangerment" cases, (C) states funding only abortions to "preserve life", and (D) states using the "life endangerment" and also rape and incest language, the monthly average number of medicaid funded abortions in the year 1976 (AGI) and in the fiscal year 1977 (DHEW), and in the six and a third months from August 4, 1977, to February 13, 1978 (DHEW), were as follows:
Figures given for Connecticut alone indicate the following trend in federally funded medicaid abortions in the months September through January 1976-1977 as compared with the same month in the next years:
The total numbers of reported medicaid abortions in the indicated periods in 1978, starting with February 14, 1978, when the regulations took effect, arranged by the assigned reason for the abortion, were as follows:
The figures by states for the twenty-two states that reported medicaid abortions for the last quarter of 1978 evince striking anomalies. Seven states, reporting 130 of the 780 medicaid abortions of the quarter, reported none under "severe and long-lasting health damage" and none under "rape or incest". Ohio reported 386 medicaid abortions (373 under life endangerment); that was 49% of the national total, and for the whole period, February 14 to December 31, 1978, Ohio reported 33% of the national total. Illinois, reporting 59 abortions in the last quarter of 1978, assigned 15 to life endangerment, 41 to severe and long-lasting health damage, and 3 to rape or incest. Illinois' report accounted for 47% of the total cases assigned to severe and long-lasting health damage. New York reported 55 medicaid abortions for the last quarter of 1978, 54 for life endangerment, one for severe and long-lasting health damage. Oregon, reporting 22 medicaid abortions in the last quarter of 1978, reported 14 under "rape or incest", six under life endangerment and two under severe and long-lasting health damage. The percentage distribution by assigned reasons of those reported medicaid abortions which did state the reasons for the abortion was as follows:
The fear was expressed during the debates in Congress by opponents of restrictions on abortion funding that the restrictions would result in an unacceptable increase in maternal deaths and serious complications arising from self-induced abortions and abortions performed by unlicensed and unskilled practitioners. Some such consequence was inevitable, but the data thus far available are not sufficient to demonstrate the extent of this consequential effect of the restriction on abortion funding. An attempt was made within CDC to project the increased maternal mortality that would result from denying abortion funding because of both the substitution of nonlegal abortion for lawful abortion and of normal childbirth for abortion; it was estimated that five to ninety additional maternal deaths would occur annually. It is an easy and clear inference from the CDC's Abortion Surveillance, 1975 (issued April 1977) that the CDC considered that the availability of adequate abortion facilities was directly related to the rate of maternal death due to abortion and that for some women those dependent on public assistance the lack of public funding for legal abortion acted as a deterrent to their obtaining safer procedures (pp. 7-10). A CDC report based on review of 250 McAllen (Texas) Hospital charts coded as abortion-related complications admitted from January 1977 through January 1978 disclosed that such admissions averaged 20 a month before August 4, 1977, when subsidies for abortion became unavailable to medicaid eligible women in Texas, and 17 a month after that date; however, of the febrile cases admitted only one has a medicaid recipient admitted before August 4th, and four admitted after August 4th were medicaid recipients, and seven women were admitted with complications ascribed to illegal abortions after August 4th as compared with four admitted before that date. One woman admitted after August 4th with septic complications following an illegally induced abortion died; the reporting CDC reviewer expressed the opinion that "as a result of the Medicaid restriction, the fatal case, sought and obtained, a low cost illegal abortion which resulted in her death."
CDC furnished the following data on admissions to four hospitals in states (Texas, Ohio, and Rhode Island) that had cut off funding; CDC qualified the data as based on small numbers and possibly not representative of trends in other hospitals, or of national trends:
The data from hospital "C", which appear to have greatest weight in the totals, contradict the data of the other three hospitals, and indicate an unaccountably abrupt improvement; it suggests a reduction in the number of abortions, legal and illegal, performed in the area, or a change in either admission or reporting practice.
An April 1978 internal CDC report on monitoring the impact of restricting medicaid funds for "elective abortions" noted that medicaid funds had paid for about 25% of all abortions, and that states that had restricted funding accounted for only 6% of all abortions. The report is based on 1,496 emergency room visits during the four months from October 10, 1977, to February 10, 1978, in 24 hospitals; 262 of the visits were in states which did not fund abortions. It was seen as possible that since medicaid abortions were fewer in non-funding states than in funding states, the similarity in the percentages of medicaid eligible women admitted for abortion-related complications in funding and in non-funding states represented an increase in complications per procedure performed among medicaid eligible women in non-funded areas. The data did indicate that medicaid eligible women obtained their abortions (which led to their later hospital visits) later in nonfunding than in funding states. The tabular data given on mean gestational age for all induced abortion complications by state funding status and patient medicaid status are the following:
The 1976 Abortion Surveillance Report uses eight weeks or less of gestational age as the index rate for maternal deaths from abortion; at that point the death rate per 100,000 abortions is 0.6. At 9-10 weeks the relative death risk is 2.8 times that at 8 weeks or less; at 11-12 weeks it is 4.7 times the 8 weeks or less rate; at 13-15 weeks the relative risk is 13 times that at 8 weeks or less. The April 1978 report states that the risk of complications increases 20% for each week abortion is delayed, and that the death risk increases 50% for each week of delay. However, the April 1978 report concluded that there was no direct evidence of increased abortion complications among medicaid eligible women in non-funding areas, and no evidence that they were seeking non-legal or self-induced abortions in any great numbers, but that it might be that the medicaid eligible women delayed their abortions in order to seek alternative funding; the report did project "some increased morbidity and mortality following such delayed procedure."
The caution of the CDC April 1978 report reflects the small statistical base and imperfect randomness of the data e.g., only 29% of the 262 cases in the non-funding states, that is, 76 cases, were definitely cases of medicaid eligible women. A 1975 report by CDC physicians of experience at Grady Memorial Hospital, Atlanta, a facility serving the medically indigent, confirmed the inverse relation of the numbers of admissions for complications from illegal abortion to the numbers of legal abortions performed, but indicated that the expected decrease in admissions for complications due to illegal abortion lagged the increase in availability of legal abortion services, and lagged markedly the increase in legal abortions performed at the facility. One conclusion from the data was that, "Clearly, the availability of abortion services must be sufficiently broad to obviate having to resort to criminal means." New York City data on admissions for incomplete abortions in the year preceding the change in New York's abortion law compared with the following years showed a drop in such admissions of 31% in the first year under the new law, and an ultimate decline to 50% of the admissions in the last year under the old law.
Dr. Cates of CDC concluded, in a 1976 article based on a review of the data of 1972-1974, that minority group women accounted for a disproportionate number of the deaths following illegal abortions, and that the study results suggested "a need to provide better and more widely available legal abortion services especially for those women who are at high risk of seeking illegal abortions. Any actions which impede their access to legal abortion may increase the risk of death."
Dr. Cates has noted that, despite the relatively greater disapproval of abortions by black women, they have used legal abortion at about twice the rate of white women; uncertain data for the year 1974 suggest that the percentage of medicaid abortions performed for black women is somewhat greater, perhaps 20% greater than the percentage of abortions performed for all black women.
That is, the higher incidence of poverty among black people, reflected in greater use of medicaid facilities, is a factor increasing the risk factors turning on withdrawal of funding.
There was evidence that in Romania, where abortion was sharply restricted commencing in November 1966, the effect was a drastic increase in hospital admissions for complications arising from illegal abortion and a sharp increase in abortion-related maternal deaths; a short-term increase in birth rate was followed by a decline in birth rate, ascribed by Tietze and Murstein to resort to "folk methods of contraception and illegal abortion."
The Romanian data,
which involve some uncertainties of interpretation, for 1964 through 1972 were these:
The medical witnesses who testified on the health consequences that would follow if the "Hyde amendment" was made the standard for funding abortions were in agreement that it would cause an increase in abortions performed by unqualified persons and self-induced abortion with a resulting increase in maternal mortality and post-abortion complications. A factor in the concern of some was a belief that the legalization of a broad spectrum of abortions would by this date have drawn into legal practice the unknown number of qualified physicians who before the change in laws had performed abortions clandestinely, leaving only the least qualified available to perform abortions for those most determined to obtain abortions and least able to pay for them.
The most recent data compilations for the full year 1977 prepared for The Abortion Surveillance Report, 1977, of CDC record 1,079,430 abortions reported to CDC, an increase of 9% over the number reported for 1976. The national abortion ratio (that is, abortions per 1,000 live births) increased from 312 in 1976 to 324.5 in 1977. The percentage increase in abortion ratio from 1976 to 1977 was 4%, substantially less than the increases in the abortion ratios in 1976 over 1975, about 15%, and in 1975 over 1974, about 12.5%. The States reporting racial data (excluding states which reported over 15% as "race unknown"), 31 states, recorded the abortion ratio (per 1,000 live births to women of the same race) of white women as 268 and that of black and other women as 490. Data from 32 states recording marital status, and accounting for approximately half of the abortions reported to CDC, reported an aggregate abortion ratio (per 1,000 live births to women of the same status) of 93 for married women and of 1,480 for unmarried women; the abortion ratio of the two groups combined was 321, lower than the national abortion ratio.
The Summary in preparation for the Abortion Surveillance Report, 1977, states (p. 9) that, "For the first year since 1972, there was an increase in the total annual number of abortion-related deaths; there were increases in all 3 categories legally induced, illegally induced and spontaneous . . . ." And, in discussing "Illegal Abortion Mortality" and referring to four 1977 deaths associated with illegal abortion, the Summary states (p. 12), "Therefore, for the first year since 1972, there was an increase in the annual number of illegal abortion deaths . . . ." The report continued (ibid.):
"In the past we have used the number of illegal abortion deaths as an index to reflect the number of illegal abortions actually being performed. Before 1977 the decline in the number of illegal abortion deaths was felt to reflect the increased availability of the safer legal procedures throughout the country; women who formerly terminated their pregnancies through illegal channels probably elected to use the safer legal facilities. However, in 1977, the Supreme Court ruled that states had the right to restrict the use of public funds for legal abortion services. In August 1977 federal funds for Medicaid-eligible women were restricted; over the next several months, 34 states similarly elected to restrict state funds for abortion for Medicaid-eligible women. It is reasonable to speculate that these public policy decisions may have created an environment of uncertainty for low-income women about the availability of legal abortion services, whether they lived in states which were continuing public funding for abortion or those which were not. Because of the small numbers involved, however, chance fluctuation of a rare event is a possible explanation for this increase in illegal abortion-related deaths. Moreover, for at least 1 woman, the non-availability of public funds led to a situation in which she was forced to choose the less-safe illegal abortion because of financial factors."
The summary then gave in detail the medical history of the case of a woman, admitted to the McAllen General Hospital, McAllen, Texas, on September 26, 1977, in imminent septic shock, who died 8 days later despite intensive medical surgical care. The draft Summary concludes the detailed medical history with the comment (p. 14):
"In summary, this woman had an unwanted pregnancy and no Medicaid assistance (that she had used twice before) to pay for a legal abortion. She sought a low-cost abortion on 2 occasions in Reynosa, Mexico, because of financial hardship. When these were unsuccessful, her third attempt, by a lay midwife in McAllen, resulted in instrumentation of her uterus and the probable introduction of C. perfringens organisms. These factors led to the fulminant endometritis and sepsis which eventually caused her death."
The Summary refers (p. 17) to monitoring the data on women admitted to gynecological acute-care facilities in 24 institutions; 10 of the institutions were in states where, because of the absence of public funding, legal abortions might be less available, and 14 were in states that were financing legal abortions. Three thousand one hundred and fifty-seven abortion complication cases were reported in the project; seven women stated that their abortions had been illegal; three did not name the source of the abortion, and their cases were classified as illegal abortions. None of the ten women was reported to be a Medicaid recipient. No abortion related deaths were detected in the surveillance. The Summary states that, "There was no significant difference between institutions in funded and non-funded states and (should read "in ") the proportion of Medicaid women with abortion complications over the 8-month period." The Summary reported:
"The restriction of public funds was found to be significantly associated, however, with a later gestational age at the time of the abortion."
The Summary concluded on this point (pp. 17-18) that the data were susceptible to at least three "possible explanations":
"First, Medicaid-eligible women may be obtaining legally induced abortions through a combination of personal funds, public hospital services, philanthropic assistance, and/or reduced clinical fees. Second, they may be choosing to continue their pregnancies to childbirth. Third, though unlikely, they may be having illegally induced abortions by non-physicians under relatively safe conditions."
As yet unpublished data collected by the Alan Guttmacher Institute (AGI)
report that there was an approximately 12% increase in the total number of abortions performed in the United States in the year 1977 as against the year 1976; a little over 9% more abortions were reported to CDC in 1977 over the number reported in 1976; however, for the first quarter of 1978, the most recent quarter on which data are available, AGI reported an increase of only about 4.4% over the first quarter of 1977 in the number of abortions performed in the United States.
No conclusion can be drawn from the data now available about the impact of the withdrawal of federal funding and its repercussions in state action. The draft CDC Surveillance Summary outlines alternatives that, together, exhaust the possible explanations for the absence of a significant number of illegal abortion complication cases admitted to hospitals, if it be the fact that there has been no substantial increase in the number of such hospitalizations for post-abortion complications. But the statement that only seven of 3,157 abortion complications reported through hospital surveillance admitted illegally induced procedures is so little likely to be a safe basis for the drawing of large scale inferences that the question of the extent of hospitalizations arising out of botched illegal abortions must be found to be indeterminable. The data do strongly suggest that there has been a marked reduction in the rate of increase in abortions since August 4, 1977, and that may well connote an increase in the resort to illegally induced abortions by non-physicians which, as in the past, has a high probability of escaping statistical report. An increase in involuntary childbirth is an obvious possibility. There is no evidence, however, and it cannot be and is not found as a fact that Medicaid-eligible women have been able to obtain legally induced abortions through any use of their necessarily exiguous "personal funds," or at free public hospitals, or through philanthropic assistance, or reduced clinical charges.
The evidence at the trial demonstrated that in fact indigent women, dependent on public assistance provided through AFDC programs and dependent on medicaid for their medical needs, have no significant alternative to medicaid for legal abortions. An AGI analysis
of the available data indicates that the average cost of medicaid reimbursed abortions for the fiscal year 1976 was between $ 222 and $ 233; the average cost of abortion in the United States was estimated at $ 280, the average cost for a hospital abortion being $ 460 and for a clinic abortion being $ 160; second trimester hospital abortions vary in cost up to $ 1,000 and more. The AGI analysis concluded that 69% of medicaid abortions were performed in hospitals whereas 26% of non-medicaid abortions were performed in hospitals; the remaining abortions were performed in practitioners' offices. The high ratio of medicaid abortions performed in hospital is attributed to several causes. First, AFDC clients are principal recipients of medicaid assistance, and they, in common experience, are found to turn to large public hospitals or teaching hospitals and their out-patient or clinic services for their medical needs. Second, the indigent as a class are not well served medically, nor generally are they well-informed on health care matters; their resort to medical facilities for assistance is, characteristically, delayed, and delay results in a higher percentage of second trimester abortions, which, generally, are performed in hospitals rather than in clinics or in practitioners' offices. Finally, women nineteen and younger, and more particularly those seventeen and younger, who are poor are frequently unaware that they have become pregnant until the pregnancy is advanced, and, because of their youth and ignorance, they are slow to seek medical assistance. The same AGI study shows that the average AFDC monthly payment varies widely from state to state, from $ 363 a month in New York to $ 48 a month in Mississippi and averages $ 280. The testimony of one AFDC client and of the Director of the United Welfare League, a publicly funded community multi-service center, established that even under New York's comparatively generous public assistance provision, welfare recipients must live at a miserable and humiliating level of bare subsistence, and that they are without means to pay for abortion.
Philanthropic or charitable institutions are not a resource for indigent women seeking abortions. The DHEW, Social Security Administration Bulletin for January 1976 (Vol. 39, No. 1), shows that in 1975 when total expenditures for health and medical care reached $ 118.5 billion, philanthropy and industrial in-plant services accounted for $ 1.3 billion. The AGI article referred to above pointed out (page 212) that an AGI 1977 sample survey of 1,353 abortion providers indicated that about 75% of non-hospital clinics, 30% of private hospitals and 27% of public hospitals were already providing some free or reduced-cost abortions to poor people in 1976; an estimated 14% of all clinic abortion patients and, possibly, 4% of all hospital abortion patients obtained reduced cost or free abortions in 1976; in addition three-quarters of non-hospital clinics and public hospitals and nearly two-thirds of private hospitals offered deferred payment plans to some women in financial difficulties; payments were deferred for an estimated 15% of clinic patients and possibly 6% of hospital patients; the authors of the AGI article concluded that if public subsidy were withdrawn, and assuming that medicaid recipients could pay reduced fees, current providers would have almost to triple the number of abortions that they were subsidizing to make up the medical service deficit. The Executive Director of the National Abortion Federation, an association of 106 providers who performed approximately one-third of the abortions in this country, approximately 20% of which were medicaid abortions, testified that she recommended to providers that in their budgeting they allow a 10% margin for free or reduced rate or deferred payment cases, including bad debts, and to cover the financing of references to other facilities; she testified that about 2% of the 300,000 abortions performed by member facilities during the preceding fiscal year were performed free and that about 7% were performed at reduced fees; it was her judgment that the members could provide an additional 2% to 4% of free or reduced rate abortions and remain financially stable provided that the total of their reduced rate and free cases remained within the 10% margin, but that it would be financially impossible for them to furnish free the number of abortions that had been covered by medicaid in the then recent past.
The role of public expenditures in health and medical care is portrayed in the Social Security Bulletin referred to just above. Of the $ 118.5 billion expended for health and medical care $ 68.6 billion represents private expenditures and $ 49.9 billion represents public expenditures; the public expenditures represent 42.1% of the total. The Social Security Bulletin notes that by 1975 the Federal Government was financing more than two-thirds of the public health services. The withdrawal of the public health service alternative in this field does not genuinely leave the indigent woman on public health service any resort other than involuntary childbirth, a trifling and unequally and arbitrarily allocated possibility of free medical service, and resort to self-induced abortion or non-medical abortions.
The Hyde-Conte amendment as enacted in September 1976 forbade the use of any of the DHEW appropriated funds for the performance of abortions "except where the life of the mother would be endangered if the fetus were carried to term." As noted above (pages 641-642) the Hyde-Conte amendment did not provide funding for abortions for victims of rape or incest, nor did it provide funding for any therapeutic abortions other than those in which the physician certified that the abortion was necessary because "the life of the mother would be endangered if the fetus were carried to term." The 1977 and 1978 forms of the restriction on abortion funding (supra, pages 642, 648) added to the life endangerment exception from the restriction an exception for "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"; the 1977 and 1978 enactments also excepted "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"; the regulations define medical procedures as including abortion and require that the rape or incest incident had been reported within sixty days after it occurred. 42 C.F.R. § 441.201, § 441.205(a)(3). In addition the 1977 and 1978 enactments explicitly did not prohibit payment for drugs or devices to prevent implantation of the fertilized ovum or for medical procedures necessary to terminate an ectopic pregnancy.
The language of the 1976 and 1977 enactments is very evidently not derived from but may be compared with the language used in the Uniform Abortion Act, quoted in full in Roe v. Wade, supra, 410 U.S. at 146 fn. 40, 93 S. Ct. at 723 fn. 40. The Uniform Act would not have imposed any clinical restrictions on abortions performed by a duly licensed physician during the first twenty weeks;
after the first twenty weeks abortion would, under the Act, have been authorized only if the physician "has reasonable cause to believe (i) there is a substantial risk that continuance of the pregnancy would endanger the life of the mother or would gravely impair the physical or mental health of the mother, (ii) that the child would be born with grave physical or mental defect, or (iii) that the pregnancy resulted from rape or incest, or illicit intercourse with a girl under the age of 16 years." The Uniform Act was drafted as a penal statute, as was the American Law Institute draft statute quoted in Doe v. Bolton, supra, 410 U.S. at 206-207, 93 S. Ct. at 754-755. The Institute Act would have defined "justifiable" abortion as a physician's termination of a pregnancy if he believed there was substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother or that the child would be born with grave physical or mental defect or that the pregnancy resulted from rape, incest, or other felonious intercourse; "unjustified" abortion would be a crime under the Act if committed at any time during the pregnancy and would be more serious in degree if performed after the twenty-sixth week.
The 1976 and 1977 abortion funding restrictions do not make any distinction between abortions occurring before and those occurring after viability. The Secretary's regulations, 42 C.F.R. §§ 441.200-441.208, do not contain any guidelines for applying the "life-endangerment" and "severe and long-lasting physical health damage" criteria; at the time the regulations were put in final form the Secretary's statement indicated that the legislative history was considered as requiring that application of these criteria be left to the physicians to make on an individual-case basis. See 43 F.R. 31876-77. The Secretary indicated that the statute foreclosed funding where the only severe and long-lasting damage was to the mother's mental health, but it was pointed out that if severe and long-lasting physical health damage resulted from an emotional cause the statutory condition would nevertheless be met (ibid.). The comments and responses published at the time the regulations were put in final form support an inference that mental health circumstances which would endanger the life of the mother if the fetus were carried to term may be taken into account by the attending physician in making the "life-endangerment" judgment (ibid.).
In Roe v. Wade (410 U.S. at 153, 93 S. Ct. at 727) the Court defined the woman's right of privacy as being
". . . broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation."
The Court decided that until viability the attending physician in consultation with his patient is free to determine without regulation by the State that "in his medical judgment, the patient's pregnancy should be terminated" (410 U.S. at 163, 93 S. Ct. at 732); after viability, the Court concluded (410 U.S. at 164-165, 93 S. Ct. at 732),
" . . . the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."
In Doe v. Bolton, supra, 410 U.S. at 192, 93 S. Ct. at 747, the Court said, in discussing an abortion statute which did not distinguish between periods before and after viability, that whether an abortion is "necessary" is a professional judgment for the physician, and, it continued,
" . . . that the medical judgment 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. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman."
The Court did not pass on the validity, as applied to the period before viability, of the three exceptions to the prohibition of abortion contained in the Georgia statute involved in the case.
The court below in Doe v. Bolton had invalidated the exceptions as unduly limiting the reasons for which a woman might seek an abortion; the effect of its decision was to legalize abortions performed by a duly licensed physician "based upon his best clinical judgment that an abortion (was) necessary."
The data discussed at pages 637 to 638 above indicate that before the changes in state laws and the rendering of the January 1973 decisions, therapeutic abortions, while far from rare, were not significant in number in terms of the total numbers of abortions performed after the January 1973 decisions. The limited data do not give much insight into the reasons assigned for the therapeutic abortions, but those attributable to rubella or German measles would appear necessarily to be based on health damage to the fetus rather than to the mother. The evidence at the trial from qualified medical witnesses, and it was to an extent borne out by the statistical data cited above, emphasized that at least in the later years psychiatric reasons became increasingly important as bases for authorizing in-hospital abortions; not only psychotic conditions in the chronically mentally ill but suicidal tendencies and overt threats of suicide, as part of a complex of symptoms, furnished a base for applications to the abortion committees in the hospitals for permission to perform the abortion. The evidence was that on the whole patients who could afford competent medical and psychiatric attention were significantly more likely to have applications for abortion approved than were patients whose limited means denied them timely access to adequate psychiatric and medical attention. The means-based contrast is illustrated particularly for abortions authorized on psychiatric grounds as well as for all other abortions by comparing the data from University Hospital with those from Bellevue Hospital in New York City for the years preceding the change in the New York law in 1970; New York University Medical School provides staff to both hospitals.
The number of abortions was not large in either hospital in any year until 1968 and 1969. The total number ranged at University Hospital from a low of 17 in 1966 to a high of 110 in 1969. In Bellevue the abortions were 3 in 1966 and the highest number in 1969, 57. Live births at University were 594 in 1964 and 1556 in 1969. At Bellevue Hospital births tended to decline over the years; the highest number was in 1964 when there were 2,563, births, the lowest was in 1968 when there were 1,031 births at Bellevue. The following table gives the percentage distribution of the "indications for termination of pregnancy" at the two hospitals in 1968 and 1969:
A possibly skewed sample of the letters submitted to the Therapeutic Abortion Committee by the psychiatric consultant to the Obstetrics and Gynecology Department at Bellevue Hospital shows a remarkably high incidence of deepseated psychiatric problems coupled with social dislocation and stressful individual circumstances; a good many of the letters conclude that the patient has a suicidal ideation and some of the letters report previous suicide attempts by the patient.
It is clear from the evidence that before the changes in the law the medical standards determining when an abortion would be authorized by a hospital's abortion committee were not uniform in their application over time, depended greatly on how carefully the individual cases were worked up for presentation to the committee, and reflected differences in underlying medical philosophy and different case evaluations.
In spite of the very clear division within the medical profession about the circumstances in which it is appropriate medical procedure to perform an abortion, abortion has a clear-cut and established position in medical practice. The medical opinions reflect, if they do not clearly articulate, the two different aspects of abortion that were so clearly delineated in Roe v. Wade. There is, first, the therapeutic abortion, the abortion that the attending physician considers in some sense medically necessary to the successful treatment of the health of the pregnant woman. In general, the physician in such a case is not concerned with the week of gestation except as the advance in weeks of gestation radically increases the risk of maternal mortality and the related risks of physical health damage. The concern of the attending physician is with determining whether abortion is, in the Supreme Court's language in Roe v. Wade "necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." (410 U.S. at 165, 93 S. Ct. at 732). But in the first weeks of gestation, those to which the very broad range of considerations quoted above from Roe v. Wade, (supra, p. 662) is applicable, the period of which the Court said that "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician" (410 U.S. at 164, 93 S. Ct. at 732), the Court's standard was not one of preserving life or health but a decision inherently and primarily medical but which considered the pregnancy in the total circumstances, medical, societal, familial and economic in which the pregnancy existed. The medical testimony in considerable part was in substance applying the conceptualization of Roe v. Wade quoted above without specifically stating that the discussion was in terms of the period preceding viability and particularly related to the first trimester.
There was no dissent in the medical testimony from the proposition, so clearly borne out by the statistics, that abortions are most safely performed during the earliest weeks of gestation, preferably within the first eight weeks, and that the relative risk of maternal mortality increases drastically with each passing week after the eighth week. Nevertheless, the death-to-case rate for all legal abortions in 1976 was 1.1 per 100,000 abortions and in 1977 was 1.4 per 100,000 abortions. A study based on 1974 statistics comparing maternal mortality with abortion mortality and stating both in terms of deaths per 100,000 live births reported that the maternal mortality ratio for white women was 10 per 100,000 live births and the abortion mortality ratio was 0.5 per 100,000 live births; for "black and other" women the maternal mortality ratio was 35.1 per 100,000 live births and the abortion mortality ratio was 2.4 per 100,000 live births.
The medical testimony was substantially in agreement that by the use of the most advanced present day medical techniques, and with close medical supervision, it was possible for women with life threatening conditions to survive pregnancy and bear children with a comparatively low ratio of maternal mortality; it was reasonably clear that the testimony rested on the assumption that the pregnant woman was desirous of bearing the child, and was cooperative throughout the pregnancy.
The medical testimony requires the finding of fact that the life endangerment standard as used in the Hyde-Conte amendment of 1976 and in the 1977 and 1978 enactments is not a term used in the medical profession as a standard for determining medical procedures, and that it is not susceptible of any agreed definition among medical practitioners. The medical witnesses emphasized that any life endangerment concept necessarily had a number of dimensions. Since every pregnancy involves a degree of risk to the life of the mother, however remote in the case of the young and healthy woman, the threshold problems with the statutory term were first, determining what degree of risk to the life of the mother must be present to warrant abortion, and, second, what probability of eventuation of the risk visualized must be present. A separate set of problems involves relating the patient's medical condition to the available resources of sophisticated medical treatment and support, the regimen of patient behavior essential to the success of the pregnancy, and the probability or improbability of the patient's having the means, being in the circumstances, and having the will to carry out the medical program. A distinct group of problems arises out of the necessity for evaluating mortality risks in terms of the co-existence of pregnancy with a disease or complex of disease conditions, independently involving a distinct risk of mortality and the effective treatment of which is, at minimum, complicated by the pregnancy, and, in instances, requires giving up the use of the optimum medications in order to avoid grave harm to the fetus, or because any effective medication would unavoidably enhance the risks of mortality inherent both in the pregnancy and in the disease.
The medical testimony made clear that potentially life threatening conditions identified very early in the pregnancy very often could not be predicted as even relatively certain to create an unacceptably high risk of mortality at a later stage in the pregnancy notwithstanding that it would be said that such a condition would inevitably in a statistically significant number of pregnancies cause pregnant women's deaths. While a number of specifically describable diseases create risks of mortality that are unacceptably high, the medical evidence made it very clear that there is neither a closed list of life threatening conditions by which the life of the mother would be endangered if the fetus were carried to term, nor a compilation of risk factors cutting across disease conditions that would express a consensus medical judgment on the point at which statutory life endangerment would be present. For instance, multiple sclerosis and renal disease, mentioned in the joint statement accompanying the conference report in 1976 (supra p. 641), do not furnish a criterion against which other diseases can be measured. The reported data on maternal mortality
are not illuminating. Reports of the causes of maternal death, some dividing assigned causes into direct and indirect causes (that is, those directly related to the pregnancy and birth itself, and those related to complicating conditions), do not suggest any uniformity in the occurrence of causes or, perhaps, uniformity of diagnostic terms. New York data on 149 maternal death cases occurring in 1972-1976 list as causes (in order of frequency) pulmonary embolism, anesthesia, ectopic pregnancy, hypertensive states of pregnancy, cardiovascular diseases, obstetric hemorrhage, amniotic fluid embolism, ruptured uterus, cerebrovascular accidents, gastrointestinal complications, the category "liver, biliary, spleen," and other less common causes. Minnesota data collected over the period 1950 through 1974 give the causes of death in 487 cases; in the order of frequency the causes of death were hemorrhage, infection (including pulmonary embolism), toxemia (classified in New York under "hypertension states of pregnancy"), heart disease, amniotic fluid embolism, chorioepithelioma, anesthesia, air embolism, transfusion deaths, diabetes, and electrolite imbalance.
There was, for example, testimony related to a tabulation of seventy-nine "Risk Criteria," used for identifying potential complications in pregnancy, evaluation of which would determine whether the pregnant woman could safely bear a child out-of-hospital: the criteria did not indicate specific maternal mortality risks as such, but the first forty-eight factors, grouped under socio-demographic factors (age and residence near hospital), maternal medical history, maternal obstetrical factors, previous infants' factors, maternal laboratory findings and physical findings, traverse the range of factors that can at varying intensity levels become indications for termination of pregnancy. Included are chronic hypertension, renal disease (moderate to severe), urinary tract infection, history of psychotic episodes, history of epilepsy or seizure, required use of anticonvulsant drugs, drug addiction or current addiction therapy, heart disease (systolic murmur, significant heart enlargement), diabetes mellitus, thyroid disease, history of pulmonary embolism, history of asthma or recent chronic bronchitis, history of any bleeding disorder or hemolytic disease, and "others"; maternal laboratory findings indicative of risk to the woman or fetus are hematocrit value below 27%, sickle cell hemoglobin, pap smear class 3 or greater, and evidence of fetal chromosomal disorder in amniotic fluid.
The medical evidence made it abundantly clear that the medical profession does not treat pregnancy, the threat of complications in pregnancy, and the factor of the pregnant woman's attitude toward her pregnancy and child bearing in terms related to determining whether "the life of the mother would be endangered if the fetus were carried to term." Treatment, including surgical treatment, of a proportionately serious pathological condition in a pregnant woman may result in miscarriage, and physicians would not consider such treatment as inducing an abortion. The termination of the pregnancy as a therapeutic measure is undertaken essentially when the purpose of the patient and physician is averting unacceptable risks of injury to the mother's physical or mental health from the pregnancy, given the patient's condition of health and attitude toward her pregnancy, or is averting an unacceptable risk of grave fetal deformity. The life endangerment test is simply alien to the medical approach when put forward as a sole test, for it extends only over an indeterminate range of instances that appears to exclude significant instances in which before Roe v. Wade, and the first changes in the state statutes, the therapeutic abortion committees of hospitals were approving abortion. Conspicuously, the language excludes the rubella cases and those psychiatric cases which were not based on evident risk of suicide.
The medical evidence made equally clear that, although it was possible to theorize that a variety of conditions could be considered as life-endangering, the medical witnesses did not consider that they could certify such conditions as meeting the statutory standard either for the purpose of assuring hospital admission for abortion or for the purpose of claiming payment under state medicaid plans governed by the Hyde standard. They were not impressed by the suggestion that, if they certified in good faith that in their professional judgment the abortion was necessary because the life of the mother would be endangered if the fetus were carried to term,
they would not have to fear charges of fraud, or investigation of their practices. Their concern centered on the circumstance that there could be no broadly shared understanding of the novel term either within the profession or between the profession and DHEW, and that, in practice, it could operate only as a crisis intervention standard. Dr. Seymour L. Romney testified that the Hyde standard and the monitoring of practice under it would have a severely inhibitory effect on physicians' willingness to undertake and to certify cases because of their inability to have marshalled and to present verifiable scientific data to support their professional judgment under later DHEW enforcement review; he visualized an increased risk of serious complications that would tend to arise from protracting observation until professionally certifiable necessity became a demonstrable certainty. He estimated that application of the Hyde standard would have meant that 50% to 75% of the 1976 medicaid abortions would not have been certified for performance. Dr. Johan W. Eliot testified that few abortions could be performed under the Hyde standard, and that it would not cover cases in which abortion was clearly medically necessary, but in which it would not be possible to certify that the mother's life would be endangered if the pregnancy were carried to term. He estimated that, of the total abortions performed before the "Hyde amendment," only two or three percent would have been certified for reimbursement under the language of the amendment, and that, in the case of women who wished to carry their pregnancies to term, abortion would have been certified as necessary in only about 1% of the total abortion cases; his experience indicated to him that a third to one half of abortions that came under his view were based on socio-economic considerations and were not "medically necessary," and that the remaining 47% to 65% could be classified as "medically indicated" or "medically advisable," and medically necessary from the point of view of preventive medicine to restore and preserve the patient's mental and physical health using the World Health Organization definition of health (not simply absence of disease but complete mental and physical well-being). Dr. David Bingham testified that the medically necessary standard then in use in Connecticut embraced far more cases than the Hyde life endangerment standard. He estimated that 80% to 90% of abortions performed at the Planned Parenthood outpatient clinic in Norwich, Connecticut, were medically necessary, and that, in his judgment, 5% to 10% of them would meet the Hyde life-endangerment standard, as he interpreted it.
The teaching of the testimony as a whole, not excluding the testimony of the physicians presented as witnesses by the guardian, was that the Hyde-Conte amendment could not be equal and uniform in interpretation and application, but that medical judgments under the amendment would necessarily reflect individual professional evaluations of conditions of inherently uncertain prognosis, that could occur in very different degrees of severity and with radically different degrees of access to supportive care, and could become manifest at widely different gestational ages and physiological, psychological, and social circumstances. More particularly significant was the very substantial risk that professional reluctance to certify under a standard alien to medical experience and terminology would deny medical assistance to women in instances in which it would not have been withheld under the older abortion committee standards.
The less complete testimony on the 1977 and 1978 additional standard of "severe and long-lasting physical health damage" in substance was that it, again, was not terminology used by or familiar to the medical profession, and that it did not embrace any added class of definable instances. The evidence was that so far as concerned first trimester abortion practice, the language added in 1977 was materially restricted in practical utility by the two physician requirement. Dr. Romney pointed out that the "would result" language of the clause put physicians in the impossible situation of predicting outcomes; he judged that the consequence of requiring two physicians to join in determining the existence of the condition would result in reducing certification to what he called the "classic" life threatening conditions: the cardiac problems, well-established respiratory problems, such as bronchiectasis, chronic renal diseases, severe hypertension with definitely established evidence of renal compromise, and chronic nervous system degenerative diseases.
The reported data on the assigned reasons for the medicaid reported abortions in the period since August 4, 1977, supra, pages 654-655, evince anomalies of classification so extreme as to compel the conclusion that the "life endangerment" and the "severe and long-lasting physical health damage" criteria do not understandably identify or describe distinct classes of physical conditions.
Despite the low maternal mortality figures attained currently, pregnancy and childbirth involve genuine risks to the pregnant woman and to the fetus, risks the measure of which is found in the woman's medical, including psychiatric, history, her social condition, the circumstances in which she became pregnant, her age, her access to medical support systems, and at times overwhelmingly her attitude toward her pregnancy.
Poverty is the common element in all medicaid cases, not less so in cases in which medicaid funding for abortion is sought, and poverty is medically significant. Dr. Eliot testified that among women receiving public assistance, and receiving their medical care through medicaid, the incidence of medical necessity is two or three times higher than among the general population. Dr. Tietze pointed out that statistical evidence bore witness to the fact that physical disease is more common among the poor than among the average of the population, and he considered that the factors particularly relevant to indigent pregnant women were deficiencies in their education, and particularly education in health care, and their limited access to adequate and sympathetic medical care with their consequent tendency to be late in obtaining pre-natal attention. Dr. Bingham's generalized observation was that, of the abortion cases coming under his review, those possibly identifiable as abortions of convenience were infrequent among medicaid patients; he found that the poor women, because their health needs were greater, their level of nutrition lower, their levels of anemia worse, and likely to worsen as pregnancy continued, were at significantly greater risk in their pregnancies than women generally. Dr. Bernard J. Pisano testified that in his practice with private patients he would, in order to avert life-threatening or endangering conditions, have to specially watch and guide probably 5% of his patients in the management of their pregnancies because of their preexisting health problems; in the clinic population, however, he testified, he might have to raise that percentage to 10% or 15%. The markedly higher health risk of poor women is almost certainly indirectly reflected in the circumstance that maternal mortality per 100,000 live births, as reported in the Vital Statistics of the United States for 1968, 1971, 1973 and 1975, was three times as frequent among black women as among others;
maternal deaths from toxemia were four times more frequent among black women than among others; Michigan data collected for the period 1950-1971 show that the rate of direct maternal deaths among non-white women was 4.2 times that among white women.
The pregnant woman's poverty, both as it affects her general health and denies her the means of dealing optimally with her pregnancy and its special problems and restrictions, increases her risks of health damage, and even of mortality, from the diseases and conditions that cause complications in the pregnancies of women generally. The medical evidence depicts in some detail a number of the conditions and diseases additional to those primary life-threatening conditions already referred to that indicate at some level of severity termination of pregnancy; but the total evidence is very clear that the severity and sequelae of any one of the conditions or diseases can vary between the widest extremes. Dr. Jane Hodgson observed that multiple sclerosis and renal disease, mentioned in the 1976 conference committee statement (supra, page 641), were not signals to abort since that would depend on the degree of involvement and willingness to accept the risk inherent in dealing with the disease and the pregnancy simultaneously. She pointed to the intra-uterine device in utero after pregnancy as creating a high risk of sudden and grave infection striking in the later stages of pregnancy; other evidence showed that removal of the device at times induces an abortion; the mortality data indicate that the risk of death from spontaneous abortion is increased over fifty-fold if the intra-uterine device remains in place until childbirth
Dr. Eliot testified that in such cases the IUD should be removed as soon as the pregnancy is diagnosed, and if that can not be done without terminating the pregnancy, he would counsel termination of the pregnancy. Dr. Hodgson instanced also a twenty-four year old mother of four children who developed, after her fourth pregnancy, a severe phlebitis which required a long hospitalization; the patient sought an abortion when she again became pregnant. The phlebitis was itself an extremely serious complication of the pregnancy: there was a great danger of blood clots to the lungs, yet the drugs used to prevent such blood clots are very dangerous to the fetus, so that the phlebitis could not be treated if the pregnancy continued. Dr. Romney explained that varicose veins of moderate to severe intensity are aggravated by pregnancy if the woman has to be on her feet a great deal; the condition can be disabling, the veins can ulcerate, and the pregnancy thus increase the severity and chronicity of the condition; in some cases phlebitis, with its risk of blood clots, can evolve because of changes in blood coagulation during pregnancy, and the condition can then become life-threatening.
Cancer presents special problems. Dr. Hodgson described the case of a woman with cancer, for which she was receiving radiation therapy, who had a life expectancy of five years; she could not use oral contraceptives because that would have accelerated her death, and her alternative contraceptive means failed. She sought an abortion, and Dr. Hodgson approved that request although the effect, if any, that the pregnancy would have on the progress of the cancer was not certainly determinable. But if the cancer requires drug or radiation therapy, Dr. Edmund O. Rothschild explained, treatment of the malignancy by radiation or chemotherapy would have serious consequences for the fetus; he testified that such a complex indicated the medical necessity of terminating such a pregnancy; he noted that the case of phlebitis was the same: the use of anti-coagulants in pregnant women is contra-indicated although they are ordinarily prescribed for phlebitis and various embolic problems.
Women, particularly young women, suffering from diabetes are likely to experience high risks of health damage to themselves and their fetuses; the woman may become blind through the worsening during pregnancy of a diabetic retinopathy; in the case, particularly, of the juvenile diabetic, Dr. Eliot testified there is evidence that a series of pregnancies advances the diabetes faster; given an aggravated diabetic condition, other risks increased through pregnancy are kidney problems, and vascular problems of the extremities.
Such a condition as myoma of the uterus, Dr. Romney testified, may persist for a lifetime without becoming diseased enough to require surgical removal, but it may cause excessive bleeding and is one of the common causes for hysterectomies. Pregnancy can aggravate myoma: if the tumor grows beyond the vascular supply needed to keep it benign, the tumor may become necrotic and produce peritonitis, abscess formation, infection and so become life-threatening. Urinary tract infections, too, are not uncommon, but, Dr. Romney testified, the possibility of an ascending urinary tract infection is increased during pregnancy; if it remains a mild cystitis, that is, a localized bladder infection, it may not be dangerous; but if a virulent infective organism produces a severe cystitis, that can develop into a renal abscess, and, in a patient with a large pregnant uterus, prevent proper drainage, seriously threaten control of the infection and so jeopardize the woman's life. Dr. Romney explained that during pregnancy there is a constant risk of urinary tract infection; it may be a cystitis controlled in the bladder location with antibiotic medication; but an ascending urethral infection can also lodge in the kidney or the renal pelvis and produce a chronic pyelonephritis, perhaps originating in pregnancy and not eradicated when the uterus delivers its fetus; such an intractable pyelonephritis can be "a smoldering chronic condition which would jeopardize a woman's life."
Anemia in pregnancy, if not properly and adequately treated, can, depending on its cause, be a serious complication which the pregnancy may aggravate, Dr. Romney testified; if related to iron deficiency it lends itself to therapy; failure of cooperation in therapy by the patient may result in development of fatigue and acute respiratory embarrassment, making the patient susceptible to super-imposed infections, such as pneumonia. During pregnancy any preexisting malnutrition is increased by the demands of the fetus on the maternal stores. Untreated severe anemia, and the protein malnutrition leading to it, threaten the success of the pregnancy through the malnutrition of the woman, producing marasmus and edema in the baby, preventing normal development of its brain. The major risks related to sickle cell anemia, although theoretically controllable by maintaining a 30% hematrocit, can end in cardiac failure, in one case apparently due to pulmonary embolism. A common borderline anemia and borderline nutrition, under the stress of an unwanted pregnancy, can produce a physiological decompensation and so lead to a bout of congestive heart failure.
Obesity is not unrelated to poor nutrition and anemia, in Dr. Romney's analysis: obesity, often the result of unbalanced diet and occurring in tense neurotic people, is productive of nutritional anemia; where marked obesity exists in women with a history of rheumatic heart disease with microvalvular disease, there is a mechanical fat distribution problem that results in a physical load on the heart; such obesity, and it can be in some part a result of the stresses of an unwanted pregnancy, would be considered as placing the pregnancy at high risk.
Dr. Don Sloan testified from his experience at the Florence Crittenden Home, Philadelphia, established to care for women bearing unwanted pregnancies in the last months of their pregnancies, psychosomatic illness occurs that is related to the stresses of unwanted pregnancy; he described hyperemesis excessive vomiting and persistent nausea so severe as to affect bodily function as a frequent condition that affects nutrition, and, in severe cases can persist throughout the pregnancy and cause problems; when the pregnancy is unwanted hyperemesis is accentuated and exaggerated. Dr. Romney testified that gall bladder disease, duodenal and peptic ulcers and ulcerative colitis with multiple polyposis, while having their own unique characteristics with their own sequelae, were all entities having a chronic element and might be long-lasting.
The diseases and conditions just discussed (page 669 and following) are not of a kind that, in the view of the medical witnesses, physicians generally can be expected to certify with confidence under the standards of the 1976, 1977 and 1978 Acts, because of the special nature of the life and health risks that all pose in some degree of their occurrence, and at some stage of gestation. The supporting data for safe certification can not be at hand at the time when professional judgment would approve a termination of the pregnancy as "medically necessary," as that term is understood in the medical profession. The effect tends to be to relegate abortion to the status of a crisis intervention procedure. The evidence is, and the survey exhibits make clear, that the diseases and conditions discussed are illustrative and not exhaustive of those presenting to medical practitioners the same difficult divorce between professional standards of judgment and the demands of statutory certification.
The medical evidence emphasized repeatedly the physiological as well as the psychological criticality of the pregnant woman's attitude to the pregnancy. The clear testimony that the present day arsenal of medical skills, hospital resources and medications could carry dangerously threatened pregnancies to term successfully emphasized also that success depended on effective cooperation of the patient in a regime of strict oversight, adherence to prescribed courses, and effective monitoring. Drs. Hodgson, Eliot, Romney, Pisani and Mecklenburg were in agreement on the importance of the pregnant woman's will, her will to bear a child or her resolution not to carry the pregnancy to term. The long tasks of pregnancy require prenatal care on the woman's part that the woman whose pregnancy is unwanted has neither the will nor the resources of patience to carry out effectively. If the pregnancy is complicated and requires extraordinary medical attention and patient response and cooperation, the woman whose pregnancy is unwanted fails in response and cooperation, and every risk of the pregnancy is enhanced. Drs. Romney and Sloan pointed out that the woman whose pregnancy is unwanted will tend to have prolonged and difficult labor, dysfunctional uterine labor, and to require resort to Caesarian section or forceps delivery because of the protraction of the painful labor. Dr. Romney testified that the pregnant woman must be motivated to carry out the physical responsibilities of pregnancy, that the prognoses for wanted and unwanted pregnancies are different, and that the woman's failure in attitude, cooperation and motivation can result in the evolution of potential complications into reality; he testified that the behavior in labor of women whose pregnancies were unwanted was almost physiologically different from normal labor, and that the apprehensive, tense unwanting woman adjusted poorly to the delivery room, her tensions stimulating, experimental data suggest, the production of epinephrine (a hormone secretion of the adrenal gland) which inhibits the uterine contraction. And in the earlier stages of pregnancy, Dr. Romney testified, the woman whose pregnancy is unwanted seems psychologically incapable of accepting the reality of what is required from the therapeutic point of view. Where poverty is superadded, Dr. Eliot noted, the attending physician may have to cope also with malnutrition, undiagnosed medical problems, and the tendency of poor women (referred to by Drs. Tietze and Romney) to be slow to realize their condition and to seek timely prenatal care.
The risk of complications and of mortality in abortion increases sharply with the advance in gestational age (see above page 656 and Annex footnote 4). The 1977 CDC Abortion Surveillance Report (in unfinalized editorial state) gives the following tabulation of death-to-case rate for legal abortions by weeks of gestation in the United States for 1972-1977. (The table is based on a distribution to the whole number of legal abortions in the six years of the data derived from the 72.6% of abortions for which weeks of gestation were known):
by CDC personnel based on 1971-1975 data asserted that, "Our findings clearly demonstrate that any delay increases the risk of complications to a pregnant woman who wishes an abortion." By far the greatest number of legal abortions in the recent years over 90% are by curettage/dilation and evacuation, and are performed before the thirteenth week (about 87%). The data on deaths by abortion method used and for the years 1972-1977 are the following:
All the deaths reported for the instillation procedure (saline and prostaglandin) were in the thirteen weeks and over categories. A similar increase with gestational age in the rate of major and minor complications arising in abortion was found in the cases reported to CDC from the thirty-two hospitals in its Joint Program for the Study of Abortion, 1971-1975.
The medical consequences of delay in decision affect the outcome of the decision making process and the scale of implicit medical risk; the decision that is delayed while a second opinion is sought, or a verifiable history to support certification against DHEW review is compiled, is made in circumstances of enhanced risk in the delayed abortion procedure itself, and that consequence of the delay is a factor in the ultimate medical decision that must finally be made. In addition, delay in evaluating and compiling a history of a potentially life-threatening condition, and in seeking a second opinion, inherently risks avoidable health damage from the suspect condition. Delay denies the physician the use of the optimal time of decision. Dr. Romney, in effect, so testified, and Dr. Tietze attributed the sharp decrease in Sweden's second trimester abortions between 1968 and 1973 to the Swedish profession's realization that delay in order to verify diagnosis increased maternal mortality.
Delay may result, too, in the patient's seeking other means of terminating her pregnancy. Dr. Judith Belsky in her testimony instanced five cases in which patients sought illegal abortions rather than await the outcome of the hospital's processing their applications.
The medical testimony, and the case histories presented through the testimony and the affidavits, demonstrate the impact of unwanted pregnancy on mental health, both in gravely aggravating mental ill health that existed before the pregnancy, and in producing severe mental disturbance, including suicidal ideation, in the case of patients in trying life circumstances who are already near the limits of endurance. The letters addressed to the Bellevue Therapeutic Abortion Committee, presented through the testimony of Dr. Judith Belsky,
give not only what amounts to a survey of the range of psychiatric problems centering on the patients' unwanted pregnancies, but also the general health background and life circumstances of the patients. The intolerable life circumstances and familial burdens of the patients, interacting with underlying psychotic conditions or mental states at best on the very border of the normal, all but dictated Dr. Belsky's recommendations of therapeutic abortion and the Committee's acceptance of the recommendations. Dr. Bingham, in his July 20, 1977, affidavit explained the case of a sixteen year old Hispanic welfare recipient who spoke no English, who had two children, suffered from rheumatic heart disease, with a loud murmur, and became pregnant when her contraceptive (foam) failed; in Dr. Bingham's opinion the pregnancy presented a significant risk of aggravating the patient's heart ailment and affecting her mental health as well: he said, understandably, "she is barely able to cope with her present circumstances." Yet the pregnancy did not threaten her life Dr. Bingham thought it possible to manage the medical and emotional problems through a pregnancy and keep the patient alive. Dr. Eliot's affidavit of July 24, 1977, detailed the case of a thirty-three year old mother of three children furloughed from a state mental hospital on weekends after nine months treatment for a cyclic depressive state, for which she had been treated for several years. Though prepared for the furlough with a diaphragm, she became pregnant, apparently on her second furlough. The patient's husband had only intermittent employment, and the family was receiving public assistance. The patient was much disturbed by the pregnancy, and her doctors judged it inadvisable for her mental health to try to carry the pregnancy to term. The patient was aborted, after counselling, but Dr. Eliot considered that it could not have been certified under the "Hyde amendment." Dr. Eliot's affidavit included the description also of the case of a woman already burdened with the care of two retarded children who became pregnant despite use of an IUD. She feared a third child would be retarded, or, if not, beyond her capacity to rear properly in addition to caring for the retarded children. Dr. Hodgson's affidavit of January 4, 1978, shows that plaintiff "Ann Moe," fifteen years old, had become pregnant more than two months before consulting Dr. Hodgson; plaintiff Moe had spent most of the preceding three years in adolescent psychiatric wards and correctional institutions, and her history included repeated episodes of running away and of truancy, and a diagnosis of schizophrenia; Dr. Hodgson's opinion was that compulsory pregnancy would result in severe and long-lasting mental health damage, and while Dr. Hodgson considered an abortion "medically necessary" for plaintiff Moe because of the increased physical risks of pregnancy for a teen-ager as well as the increased mental risks for one with an unstable past, she did not believe that she could give the certificate required by the Hyde-Conte 1976 amendment, or the 1977 enactment.
An unwanted pregnancy is a source of stress for anyone, Dr. Belsky testified, and, for the psychiatrically disturbed, the danger of breakdown is greater; the progress of patients under treatment may become regressed and psychotic. Where the psychiatric patient is taking strong medication, such as thorazine, and the medication is continued into the early months of pregnancy, there is, Dr. Belsky testified, a risk that the medication may cause a developmental defect in the fetus; thorazine can cause jaundice to an adult or certain kinds of neurological disorders involving malfunction of certain parts of the brain, producing symptoms somewhat like those of Parkinson's disease; these same side effects can occur in the newborn baby; yet discontinuing the medication may produce decompensation, a return to the psychotic state.
More generally, an unwanted pregnancy can itself be productive of mental derangement. The unwanted pregnancy, never occurring as an abstraction or in isolation from the woman's total life circumstance, can occur in the extreme social circumstances of Dr. Belsky's patient who, married at sixteen and, at twenty-six having four young children and a husband addicted to heroin and soon to be released from prison, was pregnant by a married man, and apprehensive that her husband would kill her when he was released; in addition, her two school age children were emotionally disturbed, required psychiatric care, and were in special classes. The patient was depressed, agitated, insomniac, had tried unsuccessfully to abort herself, and she spoke of killing herself if she could not obtain an abortion. Dr. Belsky found her by reason of her unwanted pregnancy severely depressed, disorganized and self-destructive, and recommended abortion.
The mental consequences of unwanted pregnancy was a subject of consideration by the Special Populations Subpanel on Mental Health of Women submitted to The President's Commission on Mental Health at February 15, 1978; the Subpanel in its report underscored the issue of reproductive freedom "because of its particular importance in the prevention of mental disorders among women."
A British study
of 321 patients referred for termination of pregnancy, whose cases had been followed up, concluded that termination of pregnancy caused little psychiatric disturbance provided the patient wanted an abortion, but that continuation of pregnancy did, on occasion, lead to serious psychiatric disability, and that a third of the mothers who kept their babies showed evidence of resenting them. It was noted that most unmarried women who were refused an abortion obtained one elsewhere. The same study said, "This study confirms the opinion of workers in the United Kingdom that the stress of bearing an unwanted child can lead to psychiatric symptoms. . . . In our series such symptoms were not uncommon, were sometimes protracted, and were occasionally severe enough to require admission of the patient: they were especially likely in the overburdened multipara and in the single girl lacking support." A rather narrow study
of the cases of twenty-one women in the ward population of a Massachusetts mental health center states that thirteen of the women reported twenty-six unwanted pregnancies resulting in nine abortions and seventeen unwanted children; eight of the thirteen women reporting an unwanted pregnancy stated that they felt that having and caring for children had contributed to their decompensation. The British study referred to above reported that in a typical case the patient is fairly well until she becomes unexpectedly pregnant; then, "Psychiatric symptoms are exactly related to the stress the pregnancy causes and will be relieved as soon as the stress (pregnancy) is terminated." Several of the cases Dr. Belsky described in her letter-presentations to the Therapeutic Abortion Committee at Bellevue illustrate the point made in the British study.
The suicidal ideation, noted in a number of Dr. Belsky's letter reports, was demonstrated in a datum reported by an expert in adolescent attempted suicides:
twenty-two percent of all suicide-attempting girls, compared to zero percent of control girls, either were pregnant or believed themselves to be pregnant at the time of their suicide attempts.
The Hyde-Conte amendment and its successors, as administered, exclude reimbursement for abortions performed to avert severe and long-lasting mental health damage to the mother (see pages 661-662, supra ), and the Secretary's intimation that mental health circumstances which would endanger the life of the mother might be taken into account by the physician in making the life endangerment judgment (ibid.) appears so uncertain in meaning that it is illusory. The funding restrictions exclude from consideration the whole area of mental health concerns that, from the standpoint of the medical profession, are relevant and significant in treating pregnancies and making professional judgments about the termination of problem pregnancies.
The Hyde-Conte amendment and those of the succeeding years necessarily exclude from funding abortions for women whose pregnancies occur in such circumstances of poverty, slum subsistence in substandard housing, and helpless insecurity that their pregnancies become unendurably stressful and emotionally destructive. The overwhelming testimony of Catherine Krouser depicting her life on public assistance and the hopeless humiliations of insuperable poverty, Mildred Dweck's careful description of the limits inevitable under the AFDC program, of the habitations of the poor, and of the poverty cycle in which many of the poor exist from generation to generation, coupled with the testimony of Drs. Romney, Eliot and Belsky concerning the emotional damage and physical depletion that unwanted pregnancy produces in women living in these circumstances of desperate entrapment in poverty, make clear the bases of those abortion decisions made by the indigent women in consultation with their physicians when medicaid was available just such decisions as the Supreme Court summarized in the language quoted above (page 662) from Roe v. Wade and Doe v. Bolton.
Among the detriments that would be imposed on women if they were denied the right to decide whether to terminate or to carry their pregnancies to term, the Supreme Court, in Roe v. Wade, 410 U.S. at 153, 93 S. Ct. at 727, noted that
"Maternity, or additional offspring, may force upon the woman a distressful life and future. . . . There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved."
Other factors, noted by the Court, that the woman and her responsible physician "necessarily will consider in consultation" in addition to the familial factors just quoted are, "Specific and direct harm medically diagnosable," possibly imminent psychological harm, and possible taxing of mental and physical health by child care (ibid.).
The medical testimony of Drs. Hodgson, Eliot, Hofmann, Romney and Belsky describes a number of cases, in all of which, as it happens, elements of threatened physical or mental health damage are also present in different degrees, which show the pitiably distressed familial circumstances of the pregnant women, and the manifest bearing of familial circumstances on the decision to continue or terminate the pregnancy. Dr. Belsky's letter reports and recommendations to the Bellevue Therapeutic Abortion Committee present cases that are at an extreme in some respects but not in the very obvious difficulty they would have in satisfying the Hyde-Conte standard or that of the 1977 and 1978 enactments. Eighteen of the thirty-three cases presented in Dr. Belsky's letters disclosed familial conditions approaching or in total breakdown, and few of the letter histories fail to exhibit the consequences of family breakdown as it affected the development of the pregnant woman whose plight occasioned Dr. Belsky's letter. The case histories summarized at pages 670 and 674-675, above, similarly demonstrate the weight of familial factors bearing on the decision to terminate or to carry the pregnancy to term.
Unwanted children, children born to women denied abortion, have been thought predestinately disadvantaged in consequence of their pre-natal rejection. An interim Czechoslovakian study
of two hundred twenty such children in their pre-adolescent years, measured against an equal number of control children, concluded tentatively that compulsory childbearing has varied and sometimes unfavorable consequences for the child's subsequent life, that the higher incidence of illness and hospitalization despite the same biological start in life, the slightly poorer school marks and performance despite the same level of intelligence, the somewhat poorer integration in the peer group, all point to a higher risk situation for the child, the family, and society; the higher risks concern, "above all," emotional and social development, particularly of boys; a common denominator of difference was seen in the unwanted children's increased defensive position against stress and frustration; no excessive cases of breakdown were found. The study noted that while the mothers had been denied abortions by the (public) abortion commission, they had accepted the decisions and borne the children, and, thus, were not the most extremely negative prospective mothers. A somewhat earlier Swedish study
of 120 children born to mothers denied legal abortions followed the children to age twenty-one; the authors concluded that the very fact that a woman applied for a legal abortion meant that the child ran a risk of having to surmount greater social and mental handicaps than its peers even when the psychiatric grounds on which the abortion was sought were so slight that the application was refused; as compared with the control group, the study found, many more of the unwanted children lacked the advantage of a secure family life during childhood, were registered more often in psychiatric services, received psychiatric care somewhat more often, were more often registered for antisocial and criminal behavior and slightly more often for drunken misconduct, and more frequently received public assistance; a few more of the study group were educationally substandard, and far fewer pursued theoretical studies over and above what were obligatory; they were more often exempted from military service; more of the females married early and had children early; it was observed that, where differences in the two groups were not statistically significant, they always pointed toward the unwanted children's being born into a worse situation than the control children.
The pattern of "unwantedness" in childbirth is the expectable pattern; a National Center for Health Statistics study,
based on sample data collected in 1971, reports that the percentage of births that are "wanted" diminishes with age of the mother at childbirth and with the number of children that she already has; the wantedness of childbirths increases with years of education: that is, a higher percentage of children born to women with four years or more of college are wanted children than of children born to women with less than high school education; and a smaller percentage of the children born to women living below the poverty level are wanted than of the children born to women living above the subsistence level. The data given at page 635 above, correspondingly, reflect the increased ratio of abortions to live births in the thirty-five and over age groups and in the groups of women having three or more previous live births.
Dr. Belsky's testimony and her case histories suggest the linkage between unwanted pregnancy and childbirth and the enhanced risk of child abuse. While it is believed that child abuse occurs at every income level and tends to be selective of one child in a family, often selective of a child suffering from some defect or disability, it has been said
that child abuse or neglect "is more often reported in the lower socioeconomic levels. The pressures of unemployment, lack of money, unwanted children, threatened loss of a job all can produce a state of affairs which can cause a parent or caretaker to lose control and abuse or neglect his or her child." Dr. Adele Hofmann testified that there is a pattern of individuals who become child abusers, and Dr. Belsky testified to her observation that many of the pregnant multiparas who came under her observation had themselves been abused or neglected in childhood and were disposed to be abusive or neglectful of their own children. That is reflected in the January 2, 1978, affidavit of plaintiff "Susan Roe," expressing her fear that if she carries her pregnancy to term, she will become an abusive parent like some of her friends.
The debates in Congress, and the succession of amendments proposed, make it clear that fetal abnormality was intentionally excluded from the conditions for which abortions would be funded. In this respect the Congress excluded from funding a class of abortions that had been sanctioned in hospital practice before the changes in state law and before the decisions in Roe v. Wade and Doe v. Bolton (see pages 637, 638 above, "Rubella" and "German measles").
The child born with serious birth defects presents a grave threat to family stability and to the rearing of the defective child's siblings.
Fetal abnormality occurs not only in consequence of disease contracted during pregnancy but also for genetic reasons and as a side effect of medication administered to the pregnant woman to control disease and of drug addiction. Dr. Hodgson testified to her concern about drug abusers who may have created damage to the fetus and who, having the least social responsibility, will not be competent mothers. Dr. Eliot testified to the risk of fetal damage in the case of juvenile diabetics who become pregnant, and to the apprehension of fetal defect on the part of a pregnant woman whose two children were retarded. Dr. Belsky testified to the danger that the medications prescribed for schizophrenic women posed for fetal development if the woman became pregnant. Dr. Belsky testified also to the case of a pregnant woman who had borne two children who died of a rare genetic disorder identified as Liber syndrome and whose treating physician recommended abortion: in this case the statistical risk of Liber syndrome was 12% or one in twelve, and there appeared to be no pre-natal test that could predict the outcome of the pregnancy. The woman elected to continue the pregnancy, and she bore a normal child, but lived in fear that every incident in the child's behavior indicated abnormality.
A British study
divided conditions causing fetal abnormality into three classes, infective conditions, primarily rubella and influenza, non-infective conditions, such as significant maternal exposure to a teratogenic agent, cytotoxic drugs used in treating maternal leukemia, exposure to high doses of radiation, etc., and genetically determined conditions of three main types, that is, chromosomal aberrations, conditions of multifactorial etiology where alleles at many loci interact with environmental factors (including mental deficiency, epilepsy and anencephaly), and conditions due to abnormal alleles at a single locus and transmitted in a classic Mendelian manner. A study
conducted by the National Registry for Amniocentesis under contract with the National Institute for Child Health and Human Development stated that all recognized chromosomal anomalies and more than sixty inborn errors of metabolism can be identified in utero by amniocentesis. An accuracy rate of 99.4% in diagnosis was attained in the study, and it appears that in 1974 amniocenteses were performed for 30,000 women.
One in fifteen Jews of Eastern European descent is a carrier of Tay Sachs disease, a disease fatal to children born with it. Carriers are easily identified by blood test, and Tay Sachs disease is detectable by amniocentesis; if both potential parents are Tay Sachs carriers, the chance that a child born to them will have the disease is one in four. Dr. Tietze described the progress of the disease, which first manifests itself, generally, when the child is six to nine months old, and grows worse, requiring intensive care, until the child dies in or before its fifth year. The Tay Sachs problem was fully discussed during the debates in Congress, and the discussion of fetal defect in relation to the funding of abortion extended to other familiar genetically determined fetal defects including mongolism (Down's syndrome, trisomy of chromosome 21).
Dr. Romney testified to the statistically higher incidence of premature births to economically deprived women whose pregnancies were unwanted and stressful, and to seeing greater numbers of such premature infants born with disabilities, some of which remain for life, such as cerebral palsy, congenital malformations, and permanent brain deficit. Dr. Sloan, too, described the risks to the fetus in the difficult deliveries of women whose pregnancies are unwanted.
The debates in Congress reflect the effort made to except the funding of abortions for teenagers, and especially the younger teenagers, from the restrictions on abortions; the extent of teenage pregnancy, and the problems it presented, were repeatedly elaborated and argued in both houses; no exception from the restrictions was enacted, except as the limited rape exception, taken with local definitions of statutory rape, in theory extended to promptly reported rapes of younger teenagers.
A December 1976 report
of the Office of Child Health Affairs asserted that "Teenage pregnancy, because of its adverse effects on the young mother and her infant, is one of the most if not the most pressing health problem, of individuals 19 years of age and under." And the report
of a 1976 survey, published in 1978, concluded that "Pregnancy among teenagers is a major public health problem, with serious medical, health, educational, social, psychological, and vocational implications for the mother and baby." An "overview"
of adolescent behavior as related to health, of adolescent health problems, of available services, and of suggestions for future trends, prepared by the DHEW Public Health Services Administration, stated that "Two out of thirteen first births in the United States are to girls who are so young that they are biologically "at risk' in childbearing . . . . Studies show that pregnant adolescents have higher rates for toxemia, prolonged labor, premature delivery, pelvic disproportion, and caesarean section than more mature women, and therefore require more intensive maternity care."
prepared in 1977 by the DHEW Deputy Assistant Secretary for Planning and Evaluation in support of proposed budgetary provisions for the fiscal year 1979 summarized the findings on teenage pregnancy: (a) adolescents are at high risk of becoming pregnant; over four million adolescent females (ages 15-19) have had sexual intercourse and less than half use contraceptives (37% of unmarried adolescents interviewed said they had not used a contraceptive the last time they had sexual intercourse); one million adolescents (one in ten) become pregnant each year and almost 600,000 give birth; nearly 250,000 births (400,000 pregnancies) are to adolescents 17 or younger, and 13,000 (30,000 pregnancies) are to adolescents under 15; (b) adolescent pregnancy poses serious health risks to mother and child; about 300,000 adolescents receive abortions each year (of which 85,000 are medicaid funded), and almost half are to those 17 or younger; adolescents are over-represented among those receiving second trimester abortions, which involve greater health risks; the incidence of low birth weight infants is twice as high for mothers under 15 and 1.3 times as high for mothers 15 to 19, as for mothers 20-24; low birth weight infants run higher risks of death and serious developmental defects; adolescents who become pregnant once are likely to experience rapid repeat pregnancies, with increased risks to the woman and her infants; about 44% of adolescents having first babies will have second pregnancies within a year, absent prevention programs; and (c) adolescent pregnancies raise serious social and economic risks; pregnancy and marriage account for one third to one half of adolescent female "drop-outs" from school, and early parenthood is also a major reason for males' dropping out of school; adolescent parents run higher risks of unemployment and welfare dependency than those who delay parenthood until their twenties; one-third of all births to adolescents are out-of-wedlock, and adolescents account for one-half of all out-of-wedlock births in the United States; adolescents who marry are 2 to 3 times more likely to divorce than those who marry in their early twenties.
Dr. Adele Hofmann testified
that the death rate from complications of pregnancy, birth and delivery are 60% higher for women becoming pregnant before age fifteen than the rate for women in their twenties, and the death rate for 15 to 19 year olds is 13% greater than for women in their twenties; she testified that women 15 to 19 are 31% more likely to suffer from toxemia than women 20 to 24; are 25% more likely to become anemic than those 20 to 24; will have a 13% higher incidence of infection in fetuses around the period of delivery than women 20 to 24; and have a 13% greater likelihood of premature births. Drs. Romney and Hofmann testified that younger teenagers often have not sufficient pelvic development to enable them to deliver a baby normally, and they are more frequently delivered by Caesarean section; such surgical delivery reduces the probability of normal delivery in future childbirth. Dr. Hofmann testified that girls are in their puberty spurt of growth in the two years or so following menarche, amassing bone and muscle, and expanding their blood volume, and in need of iron for their blood cells; major endocrine changes are also taking place. In the period after menarche a mean growth potential of 7.6 cm. remains which is normally accomplished in the ensuing five years; it is thought that completion of this linear growth is a benchmark for biological maturity; conceptions by girls under 16 within twenty-four months after menarche produce twice as many low birth weight infants as do conceptions by girls under 16 occurring more than twenty-four months after menarche.
Although adolescents as a class are considered to be a healthy population group,
that generalization cannot be extended to the subclass of adolescents who are poor, medicaid-eligible and pregnant; the Schuck memorandum
referred to above noted that teenagers experience disproportionately problems such as venereal disease and drug and alcohol abuse that threaten their well-being. The higher incidence of low birth weight infants in the cases of teenage mothers has already been referred to; infants weighing 2,500 grams or less at birth are considered low birth weight, and such infants have radically greater infant, neonatal and post-neonatal mortality rates than full weight infants:
Data from 1967 show that 17.2% of the infants of mothers under 15 years of age had low birth weights and 10.5% of the infants of mothers 15 to 19 had low birth weights, compared with the overall rate of 8.2% low birth weights and the lowest rate of 7.2% for women 25 to 29.
The low birth weights, accepted as the index of premature birth, are not only related to higher mortality rates, but also grave birth defects. It has been said that
"Prematurity has also been linked to such conditions as epilepsy, cerebral palsy and mental retardation, and, to higher risks of deafness and blindness." A National Institute of Health Study of 1959-1965 data found that white children born to mothers 15 and younger were about 2.4 times more likely to be born with neurological defects than those born to women 20 to 24 years old.
Dr. Hofmann's testimony traced the high incidence of neurological defect in low birth weight (and, therefore, premature) infants to the fact that the blue vessels within their central nervous systems are more fragile than those of full term infants, and, in the process of delivery, if they are affected by the respiratory distress syndrome immaturity of the lungs and difficulty with exchanging oxygen there is decreased oxygen in the blood and increasing blood capillary fragility, and the small blue cells break in the brain; there is an increase in central nervous system hemorrhages during and just after birth, as well as hemorrhage within the brain substance and around the brain, causing irreparable destruction of nervous tissue. Mental retardation can be one consequence of the brain tissue damage, and it is evidenced in the child's inability to function at the level expected in children of its age; the child does not learn to walk at the predicted age, fails to register expected progress by different growth measures (e.g., I.Q. testing), and may evince learning disabilities which may be related also in some part to familial traits; there may be specific areas of learning disability, mathematics or reading, for example, indicative of specific, isolated dysfunction within an otherwise average I.Q.; since the prematurity can damage almost any brain area, it can cause short-circuiting and seizure problems, and generally, impair impulse control; sometimes these "minimal brain dysfunctions" make the child clumsy or hyperkinetic.
The medical testimony and the literature are clear that the risks of physiological damage to the adolescent mother and child are greatly increased for the younger teenagers, those seventeen and younger, and, very particularly, those younger than fifteen. Dr. Hofmann agreed that a female under fifteen years of age is not physiologically competent to carry a fetus to maturity in the way that healthy reproduction requires, nor emotionally capable of the nurturing role that it requires, and that, in that sense, and in the broad definition of the word "pathologic," her pregnancy is a pathological condition physiologically undesirable for the female under fifteen years, and, for the total adolescent group, socially and emotionally undesirable.
It has been said that prenatal care, no matter how comprehensive, appears unable to ensure to pregnant adolescents pregnancy outcomes similar to those sustained by older women.
And the testimony of Drs. Hodgson and Romney, as well as the Schuck memorandum, requires the conclusion that pregnant adolescents, particularly those from low income families, do not seek timely prenatal care; the irregularity of younger teenagers' menstrual cycles coupled with their ignorance of their own health service needs and of the existence of public health services, where they exist, are said to result in only half of them receiving prenatal care in the first trimester, and up to 10% to receive no prenatal care until the third trimester. Typically, access to abortion services, too, has continued to be a problem for pregnant teenagers particularly, with the consequence that they are more likely to receive abortions later in pregnancy, increasing the medical risks associated with the procedure, or to receive them at a time when abortion is no longer appropriate.
As late as 1976, an increasing number of states (29 at that date) did not provide prenatal care for poor women during their first pregnancies because they did not become eligible for welfare and medicaid until their first child was born.
Drs. Hofmann and Eliot testified that adolescents too often do not cooperate effectively in prenatal care programs when they are extended to them.
That teenage pregnancy imports high psychological stress for the adolescent appears to be a safe generalization.
While suicide is more often associated with emotional disturbance or deep-seated mental disorder, it is also an alternative to unwanted childbirth; suicide rates among teenagers have increased over recent years; they accounted for 5.4% of teenage deaths in 1973,
and the correlation between pregnancy and suicide attempts of young girls was noted above (page 676). Dr. Hofmann's testimony outlined the serious emotional problems and the depression resulting from adolescents' unwanted pregnancies. The specific cases of plaintiffs Ann Moe and Mary Doe, explained in their affidavits of January 4, 1978, and July 29, 1977, and those of a number of the patients described in Dr. Belsky's letters to the Therapeutic Abortion Committee, marked the wide range of emotional disturbance, and even of psychosis, that unwanted pregnancy can impose on adolescents, and in some of these cases the unwanted pregnancy and its stresses are superimposed on preexisting mental impairments. Several of the letters disclose instances in which marked mental weakness was a factor in the patient's becoming pregnant. Dr. Hofmann's testimony explained that the younger teenager's parenthood impeded the process of maturation, of mature identity formation. Dr. Hofmann testified that, typically, the adolescent mother never completes her own growing up, drops out of school, loses the path of her early life goals, and tends to drift purposelessly through life; where the pregnancy is unwanted, and abortion is unavailable, and the fundamental conflict is exaggerated, and hostility and ambivalence enter what should be the mother's normal, instinctive biological relation to the child product of her own body; yet, typically, the adolescent mother does not surrender her infant for adoption, but keeps it in the family, whether it was born in wedlock or outside it.
Adoption, even if there were enough potential adopting parents, does not present a humanly available alternative. More than 85% of adolescent mothers keep their babies, although few day care programs accept infants.
Whether it is the pressure exerted by the social milieu, as Dr. Hofmann thought, or, as Dr. Belsky inferred, a more basic feeling that expressed itself at times in a stated preference for suicide over childbirth followed by surrender of the infant to adoption, the demographic fact is that adoption does not function as a haven for infants born to adolescent mothers.
Even when such infants are surrendered, they may not be, all too often are not, adopted but are institutionalized or are placed in foster home care, as Dr. Hofmann explained. A June 1977 "Media Tip Sheet" of DHEW's Office of Child Development stated that "A foster child may hope for adoption, but if he's older, handicapped or black, his chances are just not that good." A June 30, 1977, Memorandum from the Assistant Secretary for Human Development to the Secretary (DHEW) noted that adoptions increased steadily from the late 1950s to a high of 175,000 children in 1970, but declined thereafter to 149,000 in 1974, and, it seems, only one-third of the children are adopted by unrelated petitioners; less than 18% of all adopted children were from minority groups; the Memorandum estimated that between 90,000 and 120,000 foster care children with special needs who were or should have been legally free for adoption remained, inappropriately, in foster care. A somewhat earlier DHEW Memorandum,
related to legislative proposals on subsidized adoption, estimated that 350,000 children were in foster care, an estimated 90,000 of whom were children with special needs whose natural parents could not or would not provide for them; the Memorandum reported that in California, Massachusetts, and New York City 40 to 50% of the foster children had been in foster care for five or more years, that the average stay in foster care is four years, and that, after two years in foster care, it becomes increasingly unlikely that the child will be extricated from the system before the age of eighteen; childhood, thus, is spent in uncertainty, without the stability of a permanent family. Infants born to adolescents denied abortion are even less likely to be adopted because of their higher incidence of ill health and because minority infants are disproportionately represented among them.
A DHEW publication
asserted that "If you look at any group of abused and neglected children approximately one quarter of them have a history of being "premature.' By that we mean they have a birth weight under five and a half pounds (i. e., 2500 grams)." Infants born to adolescents, as has been said above (pages 681-683), have a high ratio of low birth weight, that is, are premature infants, at high risk of having the neurological defects related to premature birth.
The social and economic disadvantages of the indigent adolescent who becomes a mother have been referred to above (pages 680-681). Dr. Hofmann testified that eight-tenths of the women who become mothers at seventeen or younger drop out of school, and alternative educational programs for such young mothers are provided by only about one-third of the states. The risk that the adolescent mother will not be competent to rear her child, and will be unable to realize on her native endowments but will rather be stunted in her development and remain unable to function adequately in employment or home management is pitiably great.
The Memorandum referred to above (pages 680-681) stated that the Task Force formed to study adolescent pregnancy and the related problems did not address the provision of abortion per se, but that
". . . the Task Force considers abortion information, counseling, services and research essential to reduce the numbers of high-risk adolescent births, particularly for younger adolescents.
"Recommendation : Even if Federal funding is not available for pregnancy termination, we recommend that health service providers make available abortion information and counseling, and where appropriate, referrals to and from abortion services, to permit the adolescent a full range of choice, and to assist those who do choose to terminate their pregnancy to receive adequate and safe abortion services." (Emphasis in original.)
The Secretary's June 14, 1978, testimony before the Senate Human Resources Committee summarized the adolescent pregnancy problem, saying that for hundreds of thousands of teenagers, particularly the majority who are unmarried, the birth of a child
". . . can usher in a dismal future of unemployment, poverty, family breakdown, emotional stress, dependency on public agencies, and health problems for mother and child."
The Secretary's summary to the Committee included much of what is outlined above (page 680 and following), and he said:
"Scarcely anyone liberal or conservative, permissive or restrictive can read these figures about teenage pregnancy without a sense of shock and melancholy. Whatever our opinions about adult morality and sexual standards, it is sad to contemplate the specter of children being suddenly and prematurely faced with the responsibilities of adults of children becoming parents while they are still children."
After a general comment on the human need for self-discipline, the Secretary said:
"And we must recognize also that teenage pregnancies are often linked with other, persuasive social problems: poverty, unemployment, poor education, family breakdown.
"All this means that there are limits to what government can accomplish. Nevertheless, I believe that a concerned and compassionate government should do what it can to reduce the social costs and the toll of human suffering caused by premature sexual activity and unwanted pregnancy among teenagers."
The legislation, introduced as the Adolescent Health Services, and Pregnancy Prevention and Care Act of 1978, now 42 U.S.C. §§ 300a-21 to 300a-41,
had as its expressed purpose expanding and improving the availability of and access to services "which assist in preventing unwanted initial and repeat pregnancies among adolescents, enable pregnant adolescents to obtain proper care and assist pregnant adolescents and adolescent parents to become productive independent contributors to family and community life, with primary emphasis on services to adolescents who are 17 years of age and under and are pregnant or who are parents . . . ."
Problems of a very different kind arise in the case of the unwanted pregnancies of older women, particularly those pregnant for the first time. Dr. Romney testified to the higher risks of toxemia, a toxemia of greater severity than in younger women, at times leading to intrauterine death of the fetus. In addition a disproportionately high number of older women must be delivered by Caesarean section. The maternal mortality data show a markedly higher risk of mortality than for younger women. The rates of maternal mortality by age per 100,000 live births, taken from Vital Statistics of the United States,
are the following:
The rape and incest exception was not included in the Hyde-Conte amendment enacted in 1976, but it has been included in the 1977 and later enactments with a requirement of prompt report. The regulations require report within sixty days of the incident. See 42 C.F.R. § 441.205(a)(3).
The report requirement excludes a large part of rape victims from medicaid coverage. The very young, those in fear of retaliation, those inhibited by a natural revulsion from recounting what happened, and those who fear unsympathetic and uncomprehending treatment by the authorities tend not to report rape to law enforcement agencies or to public health services. Whatever may have been the number of rapes that led to pregnancy followed by abortion in the period after February 14, 1978, medicaid reimbursement, presumably based on promptly reported episodes, was granted for only 61 cases of rape and of incest in the last ten and a half months of 1978 (page 654 above). It is said
that about 56,000 rapes are reported to the police each year and that victimization surveys suggest that there are probably to 250,000.
Data concerning the victims of rape are not in the record except for those from Grady Memorial Hospital,
Atlanta, an affiliate teaching hospital of Emory University Medical School; it is a municipal hospital serving the predominantly black indigent population of metropolitan Atlanta. Review of its "Ob/Gyn" daily log books for 1972-1974 showed 1,409 victims of sexual assault. For effective study of pregnancy risk and of the efficacy of administering diethylstilbestrol ("DES") to prevent pregnancy the subject group was narrowed to the cases of 299 women on whom there were adequate records and who were at some risk of pregnancy (i. e., within childbearing age, not sterilized, etc.), and available for follow-up. Of the victims 77.6% were "black and other," 22.4% were white. The cases were classified thus:
Thus 17% of the victims were at high risk of pregnancy. DES was administered to all the victims. It was found that five pregnancies followed which were compatible with conception at the time of the rape; three of the pregnancies were to women in the high risk group, two to the women in the very much larger "not at high risk" group.
Dr. Morton Bard testified in detail to the devastating consequences of rape, the most scarifying violation of self, resulting in a first stage period of repressed rage, distraction of mind, irrational sense of guilt and troubled sleeplessness, followed by a stage of depression and discouragement. Dr. Bard considered that a typical rape victim could not function normally for six months to a year after the assault, and that total recovery, free of fits of depression could take as much as a year to two years. Pregnancy resulting from rape, Dr. Bard testified, would intensify the crisis reaction, delay the victim's adaptation, and have disruptive and distressful effects; he said that he would not hesitate to prescribe abortion and counseling to a rape victim unwilling to carry the pregnancy to term. Dr. Bard found self-destructive tendencies in the behavior of rape victims, the suicide impulse present, and, if abortion was unavailable, an overwhelming need in the victims to rid themselves of the remembrance of the product of the assault, through drugs, or by other means; the wish to abort he related to the victim's self-destructive ideation, the ultimate of which is the suicidal fantasy, sometimes acted upon; the unreasonable sense of guilt, self-punishment mixed with a will to be rid of the fetus, would, Dr. Bard considered, make it close to certain that the pregnant victim would do something to rid herself of the fetus.
How frequently pregnancy results from rape is uncertain. The Grady Hospital study disclosed 5 pregnancies consistent with conception in rape out of 299 cases; Dr. Richard Sarles testified to a 7% incidence of pregnancy in rape cases.
Dr. Eliot described the plight of one rape victim, afraid to complain of the rape, jobless and pregnant; an abortion was performed, without complications, and the patient given supplemental counseling to help her in emotional adjustment to the traumatic experience; it was Dr. Eliot's opinion that if she had been forced to continue the pregnancy to term, a pregnancy that was utterly repugnant to her, that would greatly have disturbed her personal life and her mental health.
Dr. Richard Sarles testified that there were studies indicating that 2.4 to 4% of the general population and 4% of those in the psychiatric population had admitted to incestuous relationships at some time during their lives, and that he and others he has worked with in the field consider the 4% estimate very low. His testimony was that the incest taboo is so universal, in this country's culture as in almost every other culture, that the fact of incest is discovered only indirectly, for example, in court proceedings, or is disclosed only under particular inquiry, inquiry which even professionals avoid because it brings up such deep emotional feeling. It was Dr. Sarles's testimony that incest is possibly most common between father and daughter, although incest between siblings may possibly be more common but less frequently reported, that father-daughter incest is, typically, continued over time, ending when the daughter is in mid-adolescence, at about age 15 or 16, and that 20 to 25% of such relationships result in the child's becoming pregnant.
Incestuous pregnancy is considered by pediatric psychiatrists to be extremely stressful; the adolescent has neither the physical nor mental maturity, nor the emotional stability, required to deal with pregnancy itself, and the added element of incest increases the stresses of the pregnancy. The child born of incestuous pregnancy is a special case of the more general class of unwanted children; the vulnerability of unwanted children to parental abuse, is greater. Dr. Sarles read into the record data from a published article
: eighteen cases of infants born of father-daughter and sibling pregnancies, followed up six months later, disclosed that six had major congenital defects or had died at birth or within the next six months, and five others had minor birth defects. The eighteen infants in the control group registered only one major birth defect.
It was Dr. Sarles's judgment that abortion was a medically necessary option for the teenage woman carrying an incestuous pregnancy; the pregnant woman is at risk of increased medical illness, of vulnerability to abuse, and of bearing a defective child; carrying the pregnancy to term would, in his judgment, have long-lasting adverse effects on the infant and the family.
In the case of incest the sixty day report requirement is inherently likely to restrict the availability of funding to a minor fraction of the total number of cases. Incest, Dr. Sarles testified, is unlikely to be reported because of its characteristically secretive nature.
Dr. Hodgson testified that, although she had seen a number of incest cases in her practice, she had never seen one within forty-eight hours of the incident. During the debate in the House on December 6, 1977, Representative Fraser inserted in the record a letter from a law enforcement officer in which the prevalence of incest was noted; the officer wrote that his department had investigated eight incest complaints in one week, "all involving long-term offenses of several years," and one involving pregnancy in the oldest of three sexually abused daughters in one family.
Incest, then, of its very nature is reported only by exception and not generally, and is not, like rape, a single episode but, characteristically, has been occurring over a period of time.
The legislative history of the Hyde-Conte amendment of 1976 and the successor amendments makes it clear that all were, and were understood to be, "legislation" on an appropriation bill, Andrus v. Sierra Club, 442 U.S. 347, 357-361, 99 S. Ct. 2335, 2341-43, 60 L. Ed. 2d 943 (1979), and they were understood to involve increased demands on medicaid funds for pre-natal, obstetrical and after care costs to the extent that childbirth rather than abortions took place. The effect of the legislation has been to reduce the number of abortions funded by the government from about 250,000 to 300,000 annually to a few thousand a year.
The evidence requires the conclusion that the consequence of the legislation has been at the very minimum to delay abortions with the serious consequence of increasing maternal mortality risks, that the restrictions on funding have in fact caused some resort to illegal abortion, although the extent of that is not measurable, and that in fact medicaid eligible women who wish to terminate their pregnancies have no significant alternative to medicaid for obtaining abortion. While some states at present continue to fund abortions, the general effect of the federal legislation has been to bring about conformity between state funding and the federal pattern, so as to assure funding assistance or effectuation of a parallel legislative purpose, or both.
The evidence is that the standards provided by the Hyde-Conte 1976 amendment and those of the following years are not framed in medical terms; they apply the same standard to the entire gestational period, without distinguishing the periods before and after viability, exclude consideration of prenatally determined serious fetal abnormality, completely exclude consideration of familial problems, and damage to mental health, and, by using the life endangerment standard, and, for part of the time, the severe and long-lasting physical health damage standard, relegate abortion to a procedure limited to crisis intervention in cases with fully developed symptoms, and preclude early safer use of the procedure in conditions in which professional judgment can reasonably find that termination of the pregnancy is medically necessary to the continued health of the pregnant woman. The standards of the appropriation acts are in some respects, e.g., serious fetal defect cases, more restrictive than the therapeutic abortion practices of the hospitals before the changes in the laws respecting abortion. Ironically, the difference noted in the period before the changes in state laws, and before Roe v. Wade and Doe v. Bolton, between the treatment accorded the indigent and those with means to pay for medical care (above pages 638, 663), appears to be resumed.
The evidence requires the conclusion that the medical profession will interpret and has interpreted the Hyde-Conte amendment and its successors narrowly rather than attempt to demonstrate to DHEW the basis of their medical judgments in cases in which they are satisfied that abortions are medically necessary for the pregnant woman's health but in which they can have no confidence that they could produce clinical data demonstrating to the satisfaction of DHEW that certainty of life endangerment or of severe and long-lasting physical health damage that the enactments appear to require.
The evidence detailing the medical concerns and social circumstances that bear on the abortion decisions of physicians and their patients demonstrate that the question whether a pregnancy should be terminated is inescapably a medical question that must be resolved in terms of many variables of time, of patient's will, of patient's medical history, of patient's family situation, and of the patient's mental health and her age. Poverty is itself, and persistently, a medically relevant factor; it takes its toll on pregnant women's general health and in the heightening of the health risks of pregnancy. And every condition presenting problems during pregnancy is rendered more serious and difficult to treat if the pregnancy is unwanted and the pregnant woman is an unwilling and uncooperative patient. There is a very large number of specifically pathological conditions that at some level of intensity and under some circumstances of treatment will jeopardize the health or life of a pregnant woman and indicate termination of the pregnancy as the medically most appropriate procedure. However, except for a few classic conditions, they are not characterized by that certainty of predictability that the Hyde-Conte amendment and its successors appear to require; in large part the conditions do not assume their definitely life-threatening or health destructive intensity until so late in pregnancy that abortion is no longer a safe procedure. The risks of mortality in and of complications from abortion increase sharply with the gestational age at which the pregnancy is terminated, and for that reason any delay in taking the abortion decision is itself a factor in determining whether it is then the medically appropriate procedure.
The unwanted pregnancy is times without number the focus of emotional and psychic disturbance that, especially in the cases of the indigent, are often insupportable psychically, and the pregnancy, when superimposed on pre-existing conditions of mental ill-health, can materially worsen the pre-existing mental condition. Unwanted pregnancy, if abortion is refused, can result in suicidal ideation. Apart from distinct damage to mental health, unwanted pregnancies leading to involuntary childbirth are disruptive of family life and significantly correlate with child abuse and disappointing child development.
Fetal abnormality, the evidence demonstrates, can be detected pre-natally by amniocentesis, and traditional practice appears to have sanctioned abortion where severe fetal abnormality was predictable, as in the case of rubella. No funding is available under the Hyde-Conte amendment and its successors for abortions in the cases of pre-natally determined fetal abnormality, no matter how grave the abnormality nor how great its threat to the stability of the existing family of the pregnant woman.
Teenage pregnancies pose serious health risks to the pregnant woman and to any child she bears, and such pregnancies and childbirths have seriously adverse effects on the teenage mother's education, employment opportunities and development to maturity. Children born of adolescent mothers are more likely to be premature and susceptible to birth defects, including mental retardation. Pregnancy and childbirth for women over thirty-five years of age also involves higher rates of maternal mortality than they do for women twenty to twenty-four years old.
The prompt report requirement applicable under the 1977 and later enactments excludes many rape victims from funding, and is wholly unsuited to the incest cases.
Plaintiffs have argued that the Hyde-Conte amendment of 1976 and its successors violate the First Amendment's command that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . . ." A great deal of evidence was introduced to explain the positions that have been articulated as representing the views on abortion of different Christian sects and of different bodies of thought within the Jewish faith, and to show the magnitude of the organized effort of the clergy and laity of the Roman Catholic Church to obtain passage of a right-to-life amendment to the Constitution, and passage of the Hyde amendment in its most restrictive form.
The Annex summarizing the debates that led to the enactments shows the debates repeatedly asserting that a moral issue was being debated, but in truth none was. The proponents of funding restriction left nothing to debate, for their view was that abortion was the taking of human life and, therefore, not debatable. Moral debate could not commence unless both sides of the debate could agree that there was a place in the country's social structure for abortion in some circumstances, and were prepared to debate the matter of identifying the circumstances in which abortion was morally justified. But the proponents did not agree: Roe v. Wade and Doe v. Bolton were, in their view, unqualifiedly wrong; there was no question of shaping legislation that would seek to define the limits of the constitutionally protected liberty of action that the two cases had outlined. Their task was to nullify Roe v. Wade and Doe v. Bolton to the extent legislatively possible. There was not in any real sense any agreement on what law should be enacted. Political necessity exacted the appropriation bills, and the restriction on abortion funding did not express what would have been enacted, had it been possible to bring to the floor a bill devoted to abortion alone, but only what could be negotiated across an unbridgeable gulf of principle.
The debates reflect the members' awareness of the magnitude of the right-to-life political effort, of the single-issue voting with which many were faced and which, inferentially, favored some members' electoral chances; the members heard again and again about the divergent views on the issue expressed by different Christian sects and Jewish spokesmen; they were made familiar with the polls, and heard a great deal of the medical background material; they heard the Deity invoked, heard the prevalence of abortion compared to the Nazi Holocaust and Herod's Slaughter of the Innocents; and, in the end, the enactments, at least those of 1977 and 1978, cut across principle.
While the statutory purpose of preventing abortion is clear, it is equally clear that encouragement of childbirth was not a purpose of the legislation. There is no national commitment to unwanted childbirth. Existing law encourages family planning, it does not foster unwanted pregnancy and unwanted childbirth. That is very particularly true with respect to teenage women, and, especially, women seventeen years of age and under. A secondary justification for the restrictions on abortion funding, put forward from time to time during the debates, was that taxpayers who reprobated abortion on moral or religious grounds should not have their taxes used to defray the cost of abortions.
Plaintiffs argue, using the analysis of elements given in Committee for Public Education v. Nyquist, 1973, 413 U.S. 756, 773, 93 S. Ct. 2955, 2965, 37 L. Ed. 2d 948, that the legislation to be valid (a) must reflect a clearly secular legislative purpose, (b) must have a primary effect that neither advances nor inhibits religion, and (c) must avoid excessive government entanglement with religion.
It is important, then, in discussing institutional positions on abortion to keep much in mind that no institution speaks for a unanimous membership, or takes a position that will be unchanged over time, or can incontestably claim unchallenged authority for its views. As a conspicuous example, the trial was much concerned with the Roman Catholic position as contrasted with the view of Mainstream Protestantism, and with the action taken by Roman Catholic church organizations and clerical bodies. Yet opinion surveys do not show wide differences in the views expressed by those identifying themselves as "Protestant" and as "Catholic". The Gallup Opinion Index based on surveys made in December 1977 and in February 1979 reported these divisions of view on abortion, by percentage:
Those who thought abortion legal under certain circumstances were asked under which of six "circumstances" they thought abortions should be legal if performed in the first trimester. The answers divided as follows:
The New York Times published on October 2, 1979, during the visit of Pope John Paul II to this country, a pictographic representation of an AP-NBC News Poll stating that 50% of American Catholics approved of "abortion on demand" and 45% disapproved of it, and that 66% approved of the Church's approving artificial birth control and 27% disapproved of its doing so; the poll also reported that 79% of American Catholics approved of the Pope's "handling" of the papacy although the Pope had expressed his disapproval of abortion and of the use of artificial contraceptives.
(The percent of error possible in the poll results was 6%.)
The evidence is that the moral teaching of the Roman Catholic Church is that abortion is immoral. The language of the Hyde-Conte amendment of 1976, "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," does not conform to or represent the moral teaching of the Roman Catholic Church. A life endangering condition would not, under that teaching, make direct abortion a morally permissible course because no innocent life is to be preferred over another innocent life. Reverend William B. Smith testified that the Declaration on Abortion of the Sacred Congregation for the Doctrine of the Faith of November 18, 1974, was the Church's most definitive and authoritative statement on the morality of direct abortion. The Declaration states that life must be safeguarded from conception; that abortion and infanticide are abominable crimes. Stating that human life begins with fertilization, the Declaration states that even if a doubt existed concerning whether the fruit of conception is already a human being, it would be objectively a grave sin to dare to risk murder through abortion. The Declaration states that, in a considerable number of cases, denying abortion endangers important values to which it is normal to attach great value and which sometimes may even seem to have priority. The Declaration continues:
"We do not deny these very great difficulties. It may be a serious question of health, sometimes of life or death, for the mother; it may be the burden represented by an additional child, especially if there are good reasons to fear that the child will be abnormal or retarded; it may be the importance attributed in different classes of society to considerations of honor or dishonor, of loss of social standing, and so forth. We proclaim only that none of these reasons can ever objectively confer the right to dispose of another's life, even when that life is only beginning."
The Declaration emphasizes that abortion can never be resorted to either by a family or by the political authority as a legitimate means of regulating births. Referring to the changes in laws relating to abortion, the Declaration states:
"One must, however, be attentive to what a change in legislation can represent. Many will take as authorization what is perhaps only the abstention from punishment. Even more, in the present case, this very renunciation seems at the very least to admit that the legislator no longer considers abortion a crime against human life, since murder is still always severely punished. It is true that it is not the task of the law to choose between points of view or to impose one rather than another. But the life of the child takes precedence over all opinions. One cannot invoke freedom of thought to destroy this life.
"Human law can abstain from punishment, but it cannot declare to be right what would be opposed to the natural law, for this opposition suffices to give the assurance that a law is not a law at all.
"It must in any case be clearly understood that whatever may be laid down by civil law in this manner, man can never obey a law which is in itself immoral, and such is the case of a law which would admit in principle the liceity of abortion. . . . Moreover, he may not collaborate in its application. It is, for instance, inadmissible that doctors or nurses should find themselves obliged to cooperate closely in abortions and have to choose between the law of God and their professional situation."
The Declaration "expressly leaves aside the questions of the moment when the spiritual soul is infused. There is not a unanimous tradition on this point and authors are as yet in disagreement. For some it dates from the first instant, for others it could not at least precede nidation (implantation)." The Declaration argues that the matter presents a philosophical problem and not a scientific question, but that the Declaration's "moral affirmation" remains independent of the philosophical problem because, if animation is belated, there is nevertheless a human life preparing and calling for a soul and, since the presence of the soul is probable, the taking of the life involves accepting the risk of killing a human being already in possession of its soul.
The 1971 Ethical and Religious Directives for Catholic Health Facilities, approved as the national code, subject to the approval of the bishop for use in each diocese, by the Committee on Doctrine of the National Conference of Catholic Bishops, makes clear that the abortion which is forbidden is "the directly intended termination of pregnancy before viability," but that operations, treatments and medications which do not directly intend termination of pregnancy, but which have as their purpose the cure of a proportionately serious pathological condition of the mother, are permitted when they cannot be safely postponed until the fetus is viable, even though they may or will result in the death of the fetus. If hemorrhage occurs during pregnancy and before the fetus is viable, procedures designed to empty the uterus of a living fetus still effectively attached to the mother are not permitted, but procedures designed to stop the hemorrhage are permitted, insofar as necessary, even if fetal death is inevitably a side effect. Caesarean section to remove a viable fetus is permitted even if there is risk to the pregnant woman's life if necessary for a successful delivery, and it is likewise permitted, even with risk for the child, when necessary for the safety of the mother. In extrauterine pregnancy the dangerously affected part of the mother may be removed even though fetal death is foreseen, if the affected part is presumably already so damaged and dangerously affected as to warrant its removal, and if the operation is not just a separation of the embryo or fetus from its site within the part (which would be a direct abortion), and if the operation cannot be postponed without notably increasing the danger to the mother. Hysterectomy in the presence of pregnancy and before viability is permitted when directed to removing a dangerous pathological condition of the uterus so serious that the operation cannot safely be postponed until the fetus is viable. Radiation therapy of the mother's reproductive organs is permitted during pregnancy only when necessary to suppress a dangerous pathological condition.
While curettage of the endometrium after rape to prevent implantation of possible embryo is "morally equivalent" to abortion, a text on moral and pastoral theology, apparently approved for publication, states that if rape has been committed the rape victim may interrupt the effect of the act if she does so before probable conception. 2 H. Davis, Moral and Pastoral Theology 171 (1949). Dr. Bernard J. Pisani testified that if a rape victim is admitted at St. Vincent's Hospital (which conforms its practices to the Ethical and Religious Directives for Catholic Health Facilities) immediately after the rape incident, she is treated by irrigation of the reproductive tract, the vaginal canal, to prevent conception; he also testified that at one time diethylstilbestrol was administered to alter the endometrium and so prevent the implantation of the fertilized ovum. Dr. Pisani said that the use of DES had been discontinued because it was not efficacious.
Father Smith testified, and the Declaration on Abortion is clear, that Roman Catholic doctors and nurses may not participate in the performance of abortions. (See 42 U.S.C. §§ 300a-7 and -8, 1396f; Pub.L. 95-215 § 7, 91 Stat. 1507.)
Father Gregory Baum, relating the Roman Catholic position on abortion to the goals of the Vatican II Decree on Ecumenism, observed that Christian thinkers, on grounds they regarded as responsible, tested, and in keeping with the Gospel, had come to conclusions on abortion that differed from the traditional teaching but were shared by great numbers of Christians, in the highly developed countries, whose moral judgments on other issues, even if untraditional, deserved the greatest respect. Discussing the extent of disagreement, Father Baum continued:
"The first conclusion I draw from the above reflections is that one cannot approve of the language and the arguments adopted by Catholics in their defense of the traditional position, which implied that the defenders of abortion are immoral, selfish, insensitive, cruel, lacking in respect for life, or worse. Yet such language is found even in statements made by bishops and popes."
He observed that the dilemma was that there were Christians who thought that a liberal position on abortion was more moral and more in keeping with God's will than the traditional one. He continued:
"Since no one claims that the traditional position is revealed by God, Catholics should not adopt a tone of voice as if their position is beyond challenge. Catholics may hold that, from their point of view, a liberal position on abortion is immoral, possibly due to false consciousness induced by the social conditions of industrial society, but they have no right whatever to suggest that the thinkers who differ from them are immoral, that their position reflects the lack of virtue and that the theologians and the theologically-oriented among them have refused to search the gospel to find God's will in regard to this contemporary problem." (See Baum, "Abortion; An Ecumenical Dilemma", in November 30, 1973, Commonwheel, page 231 et seq.)
Rabbi Arron M. Schreiber testified that it is the nearly unanimous opinion of American Orthodox Jewish religious and legal scholars that abortions are prohibited except in a case where the mother's life is clearly threatened, and that such abortions are homicides. Rabbi Schreiber explained that the exception allowing abortion in the case in which the mother's life is threatened was in the nature of a justifiable homicide, the equivalent to killing in self-defense and did not mean that no homicide was involved. Rabbi Schreiber also testified that in the older tradition, even in the case in which life was threatened, the abortion had to take place before the fetus emerged from the woman's body; that if the head of the fetus emerged, then the fetus could not be touched even to save the mother's life. Rabbi Schreiber questioned whether there was any broad exception allowing abortion in the case of rape, and he indicated that the case might not be the same for married and for single victims of rape. Rabbi Schreiber explained that in Jewish law a person's body is not regarded as belonging to him or to her but to God so that a person may not, for example, decide that he or she wishes to commit suicide: there is no freedom to say, It's my body, I will do with it as I wish. Similarly, where the issue is abortion, neither the life of the fetus nor the body of the mother is regarded as belonging to the mother, and the decision is not in her discretion.
A detailed statement of the Jewish tradition, including the apparently anomalous position of R. Plocki, Chemdat Yisrael, p. 176, that an embryo may be destroyed with impunity in the first forty days of its development, was supplied by Rabbi J. David Bleich to the Senate Subcommittee in the hearings referred to in footnote 8. See Volume 1, pages 288-314.
There was no direct testimony concerning the position of the Lutheran Church-Missouri Synod but its position was set forth in the course of the abortion hearings (see note 8, supra, vol. 1, pages 319-29). Under this view life is seen as beginning with fertilization, and individual human life is thought of as established at the time of the blastocyst. Nascent life is designed to inherit eternal life and stands in enduring relationship to God who wills that His creatures live in his eternal presence. However, nascent life enjoys no independent existence but is completely dependent on maternal life. Incipient life may become a threat to the life of the mother. In that case, a choice needs to be made; its primary thrust must be to save that life which is already in existence as a fully developed human being. The saving of the pregnant woman's life with loss of the fetus is regarded as indirect abortion, a consequence of action taken to preserve life. The indication is that where the evidence that an abnormal child will be born is strong nor merely a suspicion the pregnancy may be terminated, and also that pregnancies may be terminated in the presence of extreme psychiatric conditions. It was said in the course of the Synod's statement, after a comment on the trend toward laws repealing prohibitions of abortion, that
"When, in a self-governing society committed to popular sovereignty, the point is reached at which the principal surviving support for a given law is the religious credo of a minority or a diminishing majority, it must regretfully be concluded that the law has lost its title to public authority." (Emphasis in original.)
Pastor Richard John Neuhaus is a Lutheran, affiliated with the Association of Evangelical Lutheran Churches, a group which separated from the Lutheran Church-Missouri Synod. He described human life as being on a continuum from at least implantation until death, at least from a biological viewpoint. His view of the circumstances in which abortion may be lawful approximates those of the Missouri Synod, and reflects his recognition that Christian people are deeply divided on the question of defining human life and the role of abortion.
The testimony of Rabbi David Feldman explained Jewish law affecting abortion as it appears in Conservative and Reform teachings. The early teaching was that a life-threatening pregnancy made abortion mandatory because the pregnant woman's life took precedence over the life of the fetus. That evidently remains the cornerstone of the Orthodox view, but the other school of Jewish legal thought considers that abortion is mandated to preserve the woman's health and is permitted in the interest of the well-being of the woman and her existing family. The position on abortion is seen as a part of the larger principle of choosing life, that is, life in this world, not in the next. Abortion is appropriate when there is a possible danger to the life of the pregnant woman since the duty is to choose life. More generally any threat to health sets aside all the laws of the Torah except those involving the very gravest kinds of sin. In the stricter Jewish view abortion is a very serious matter permitted only where there is a threat to life, or to sanity, or a grave threat to mental health and physical well-being. Abortion for rape victims would be allowed, using a field and seed analogy: involuntary implantation of the seed imposes no duty to nourish the alien seed.
In the broader view of Jewish law affecting abortion, termination of a new pregnancy might be justified if the new pregnancy threatens the milk available for a baby still being nursed. A very young bride who might be harmed by a pregnancy may be commanded to make use of either contraception or abortion, the two being viewed in the same light. There is a principle that has recognition permitting women whose birth pains would be extreme to seek sterilization or abortion in order to avoid the pain. Mental anguish that is life-threatening may be a ground of abortion. The risk that a child may be born defective is not considered a ground for an abortion, and there is uncertainty that amniocentesis would either be permissible, or would be relied upon to remove the element of uncertainty as to fetal abnormality and so furnish a basis for recommending abortion. However, mental anguish, caused by fear that the pregnancy will end with a defective child, may itself be a ground for recommending abortion, because the mental anguish itself, the woman's own pain, is a consideration of primary importance. The shame of bearing a child without being married, even though the child is legitimate under Jewish law, may in the liberal tradition, at least, be a basis for allowing abortion.
Rabbi Feldman explained that when a woman's life or health is threatened and abortion, therefore, becomes mandatory, that constitutes the performance of a religious duty on her part; performing the acts or duties which the law imposes are religious acts just as are ritual observances, and indeed are oftentimes more important than the ritual observances. The role of the Rabbi in connection with abortion is not to direct or determine, but to advise the woman about her religious duty; in the cases in which abortion is not mandatory but permissible, the Rabbi's office is to counsel with the woman about the decision, and his counsel may include a recommendation to the woman, but in every case the final decision is the woman's.
In the Jewish theology, as Rabbi Feldman explained it, a fetus is not a person, and no person is in existence until the infant emerges from the womb into the world, or, more exactly, until the head of the infant emerges, or, in the case of a breach birth, half of the body emerges. Biological learning is not relevant to the issue, because it is a metaphysical one. In Rabbi Feldman's view of the Jewish law, the principle that a fetus is not a human life is immutable. Hence under Jewish law abortion can never be murder; if it were murder it could not be performed even to save the life of the pregnant woman.
The Biennial Convention of the United Synagogue of America, the supreme authority over the affairs of the United Synagogue, at the 1975 convention, reaffirmed a position taken for the United Synagogue in 1967, a position said to reflect as well the views of the Law Committee of the Rabinical Assembly, in the following language:
"Rabbinic law holds that "the mother has theoretical power over the foetus as part of herself.' She must, however, have valid and sufficient warrant for depriving it of potential life. The Talmud and subsequent rabbinic responsa throughout the centuries have ruled on what is or is not adequate warrant.
"In all cases "the mother's life takes precedence over that of the foetus' up to the minute of its birth. This is to us an unequivocal principle. A threat to her basic health is moreover equated with a threat of her life. To go a step further, a classical responsum places danger to one's psychological health, when well established, on an equal footing with a threat to one's physical health. Although the definition and determination of the seriousness of these threats are subject to detailed and specific discussion, the principle is nonetheless clear."
The report of the resolutions adopted at the 1975 convention states that the United Synagogue later reaffirmed the 1967 position in executive statements, and that the Rabinical Assembly had emphasized that abortions "though serious even in the early stages of conception, are not to be equated with murder, hardly more than is the decision not to become pregnant." The concluding portion of the report of resolutions states:
"The United Synagogue affirms once again its position that "abortions involve very serious psychological, religious, and moral problems, but the welfare of the mother must always be our primary concern' and urges its congregations to oppose any legislative attempts to weaken the force of the Supreme Court's decisions through constitutional amendments or through the deprivation of medicaid, family services and other current welfare services in cases relating to abortion."
The by-laws of the United Synagogue described it as an association of conservative congregations, and as representing the Conservative Movement in the Western Hemisphere.
Dr. James E. Wood, Jr., Executive Director of the Baptist Joint Committee on Public Affairs, testified that there is no distinct Baptist moral or theological position on the subject of abortion; he explained that a Baptist Confession of Faith is not a norm of faith but a testament of faith. Such a confession of faith could not be and is not viewed from the point of view of theological discipline as a norm such that one would be excluded if he did not share the statement. Generally in such statements, and in an early part, there will be repeated the expression "since we know only in part," followed by the affirmation of belief. The keynote in Baptist expressions on the issue of abortion is liberty of conscience, and advocacy of a public policy that allows for the right of persons to make the abortion decision for themselves. The Baptist Church considers liberty of conscience itself the most precious single principle for the Baptist understanding of religious faith and in particular Christian faith. The Baptist faith is a religion of believers baptized out of their own consciences, voluntarily. In consequence there is no infant baptism, since that is not voluntary.
The Baptist Church has a long history about the family and responsible parenthood, and of persons electing this for themselves; these matters involve a decision-making process and require the exercise of conscience. There is no history of teaching that marriage necessarily requires children, that procreation is essential or a divine obligation of all people. It is for the people themselves to decide on the number of their children, because that is a value judgment. Conscience means moral awareness, and liberty of conscience means the exercise of one's moral awareness. Abortion presents a matter for individual moral decision, in a matter of ultimate concern respecting bringing a life into the world.
The American Baptist Churches in 1967 adopted a resolution requesting the constituent churches to support legislation in their states making abortion legal where the health of the mother was impaired and under certain other conditions. In 1968 the American Baptist convention adopted a resolution reading:
"Because Christ calls us to affirm the freedom of persons and the sanctity of life, we recognize that abortion should be a matter of responsible personal decision. To this end we as American Baptists urge that legislation be enacted to provide:
1. That the termination of a pregnancy prior to the end of the 12th week (first trimester) be at the request of the individual(s) concerned and be regarded as an elective medical procedure governed by the laws regulating medical practice and licensure.
2. After that period the termination of a pregnancy shall be performed only by a duly licensed physician at the request of the individual(s) concerned, in a regularly licensed hospital, for one of the following reasons as suggested by the Model Penal Code of the American Law Institute . . . ."
Three following paragraphs list, as circumstances justifying abortions, danger to the physical or mental health of the woman, evidence that the conceptus has a physical or mental defect, and evidence that the pregnancy resulted from rape, incest or other felonious act. The resolution concluded:
"Further we encourage our churches to provide sympathetic and realistic counselling on family planning and abortion.
"We commend study, research and development of understanding on the part of the populace led by the people of our churches toward an enlightened view of this provocative problem."
The Baptist general convention of Texas in 1969 adopted a resolution stating that meaningful and necessary changes in the state's abortion laws had been delayed in Texas, and that the delay ignored the need for change expressed by a majority of law and medical groups, including the state medical association's Abortion Study Committee. The resolution said that delay also ignored:
"2. Infringement of personal liberty by prohibiting best medical judgment and practice in certain instances;
"3. The need for protection for victims of rape or incest;
"4. The misfortune of continued unwanted pregnancy in instances of fetal deformity . . . ."
The evidence does not indicate the circumstances in which the resolution was adopted, and the consequences of its adoption were not explained.
In October 1973 the Baptist Joint Committee on Public Affairs adopted a resolution that it "go on record as opposed to the Buckley-Hatfield Amendment and like or similar constitutional amendments, and that the staff be authorized to take all available action to oppose them." Early in 1974 the General Board of American Baptist Churches in the USA adopted a motion referring to the efforts of the National Conference of Catholic Bishops in the U.S.A. to seek a constitutional amendment, and then stating:
"We acknowledge the legal right of all individuals and groups, both religious and secular, to seek the enactment of laws which reflect the values they hold to be necessary to the exercise of their freedom and on behalf of the common welfare. However, we believe that the present national effort of the National Conference of Catholic Bishops in the U.S.A. to coerce the conscience and personal freedom of our citizens through the power of public law in matters of human reproduction constitutes a serious threat to that moral and religious liberty so highly prized by Baptists and so long protected for all people under the nation's policy of the separation of church and state.
"3. We recognize the moral ambiguities involved for many people, including American Baptists, in the birth control and abortion issues. We are nevertheless saddened when such crusades seek the passage of laws which violate the theological and moral sensitivities, and hence the freedom, of other church bodies. All must be given their constitutional rights in a free society to guide and assist their constituencies in formulating a responsible life style in matters of sexual expression and family planning.
"4. We affirm freedom of conscience for all but object to an appeal to the state which would coerce all citizens to accept a moral judgment affirmed by one member of the body of Christ. We urge a continuation of dialogue with our Roman Catholic brothers and sisters on this and other matters. Let us seek a common understanding of the mind of Christ, and let us listen to each other in love."
The 1976 Southern Baptist Convention adopted a resolution on abortion emphasizing that Southern Baptists historically held a biblical view of the sanctity of human life, that abortion was a very serious moral and spiritual problem, that Christians had the responsibility to deal with all moral and spiritual issues affecting the society including abortion, that the practice of abortion for selfish non-therapeutic reasons only destroys fetal life, dulls society's moral sensitivity and cheapens all human life, and resolving, therefore, that the messengers to the convention reaffirmed the biblical sacredness and dignity of all human life "including fetal life," further resolved to call on all Southern Baptists and all other citizens to work "to change those attitudes and conditions which encourage many people to turn to abortion as a means of birth control," resolved further that it was in the best interests of the society to reject any indiscriminate attitude toward abortion, as contrary to the biblical view, and, finally:
"Resolved, that we also affirm our conviction about the limited role of government in dealing with matters relating to abortion, and support the right of expectant mothers to the full range of medical services and personal counseling for the preservation of life and health."
Two other paragraphs had been offered as amendments to the resolution, but had been voted down overwhelmingly at the meeting. The first of the paragraphs read:
"Whereas, Every decision for an abortion, for whatever reason, must necessarily involve the decision to terminate the life of an innocent human being."
The second paragraph was a resolution, and it would have read:
"Be it further Resolved, that we reject as contrary to Southern Baptist doctrine and tradition, any suggestion that Southern Baptists should become political activists in support of permissive abortion legislation."
At the Southern Baptist Convention in the next year, 1977, the resolution of the preceding year was reaffirmed by a resolution which read:
"Resolved that this Convention reaffirm the strong stand against abortion adopted by the 1976 convention, and in view of some confusion in interpreting part of this resolution we confirm our strong opposition to abortion on demand and all governmental policies and actions which permit this."
Dr. Wood considered that the 1976 and 1977 action of the Convention were primarily significant as calling for non-interference by government in the individual decisions of conscience.
Dr. Wood made it clear, however, that there was within the Baptist Church, as within the Roman Catholic Church, a dissent from the prevailing view, and that appears plainly enough from the sequence and altered language of the resolutions. There was in existence for some time at least after the January 1973 decisions, an organization named "Baptists for Life," formed in Texas and claiming as members of its advisory committee Senator Helms of North Carolina and a State Senator from Enid, Oklahoma.
Dr. Wood explained that in the Baptist view participation in public affairs on the part of the churches was proper and expected. But he was insistent that while, in the Baptist understanding, the church was free to advocate laws which had a moral foundation, the church disapproved of efforts to have laws enacted which would express a particular moral viewpoint or a particular church teaching. He considered the Hyde-Conte amendment a law based on a religious view of abortion because he failed to see a secular basis or bases or purpose in the Hyde-Conte amendment and the later riders.
Dr. Wood indicated that woman's right to choose abortion should extend to three broad categories of pregnancies: first, involuntary pregnancies, which would include, in addition to rape, the thirteen year old unmarried girl, typically, and those women whose contraceptive devices or medications failed; second, the problem pregnancy, involving fetal deformity or injury to the mental, emotional or physical health of the mother; and third, pregnancy that is unwanted for significant familial reasons. It was Dr. Wood's view that when there is a public policy of providing funds for medical services, as in the medicaid program, the Congress is compelled to provide funds for abortions; if there had been no medicaid program, or if the medicaid program were repealed, there would be no issue over abortion funding. Dr. Wood argued that the Hyde-Conte amendment was not neutral, but represented gross entanglement of institutional government into the moral and religious values of the people. Repeal of the amendment and a return to the conditions that existed before August 4, 1977, would involve the federal government in abortion matters, but that funding would be funding of a secular activity and unlike funding denominational schools: the point made was that medical services are themselves secular and religiously neutral.
Reverend John Philip Wogaman, an ordained United Methodist minister, Dean and Professor of Christian Social Ethics at the Wesley Theological Seminary in Washington, D.C., and a past president of the American Society of Christian Ethics, testified that in the thinking of mainstream Protestant Christian Ethics, and probably more broadly, nearly no aspect of life is more sacred, closer to being human in relation to God, than bringing new life into the world to share in the gift of God's grace and God's covenant; and that it is generally accepted among leading Protestant denominations, and to a considerable extent also in Roman Catholic circles, that human beings in their parenthood, in giving birth to children, must act responsibly and seriously, and not simply let nature take its course. In bringing new life into the world human beings must be sure that the conditions into which the new life is being born will sustain that life in accordance with God's intention for the life to be fulfilled. The teaching is ultimately based on the Bible in the light of the person of Jesus Christ and the significance of his life, the meaning of the Old Testament being most fully disclosed through the person of Christ. In the view of most Christian theologians the basic, the organizing belief of the whole Bible is that human life is in relationship to God and that God, through his work of creation and through the work of salvation in Jesus Christ, has given to humanity the gift of life and of his love. In every important issue the question to be answered is whether the human being is responding out of faith and love of God to the love which God has provided to human beings.
In the case of planned or responsible parenthood, again, the question is, whether the human being is bringing a life into the world under conditions which make it possible for that life to participate in God's intention. It is possible for the material, legal and social conditions of human existence, the conditions of life, to aid or to impede God's purpose. Since human beings are in a created physical world, it matters whether a new life brought into that world will be able, with proper support in the conditions of the world, to experience what God has intended, and whether that new life might threaten to undermine the theologically understood fulfillment of already existing human beings. There are many circumstances in which it might be contrary to God's purposes to bear a child: for example, in the case of pregnancy in a twelve or thirteen year old, concern for her health, and concern over the possibility that the new life might not receive the nurture necessary for human fulfillment, would raise the question whether the pregnancy should be terminated; cases involving risk to the life or to the basic physical or mental health of the mother might again raise the question; and pregnancy close to the period of menopause might raise similar questions in terms both of the health of the mother and of the social situation in which the child would be placed, including the effect its birth would have upon the mother and her existing family.
The resolution of the United Methodist Church, adopted at the 1976 General Conference, affirmed the "principle of responsible parenthood" and the right and duty of married persons prayerfully and responsibly to control conception according to their circumstances. It provided further that:
"When, through contraceptive or human failure, an unacceptable pregnancy occurs, we believe that a profound regard for unborn human life must be weighed alongside an equally profound regard for fully developed personhood, particularly when the physical, mental, and emotional health of the pregnant woman and her family show reason to be seriously threatened by the new life just forming. . . .
"We believe that continuance of a pregnancy which endangers the life or health of the mother, or poses other serious problems concerning the life, health, or mental capability of the child to be, is not a moral necessity. In such case, we believe the path of mature Christian judgment may indicate the advisability of abortion. We support the legal right to abortion as established by the 1973 Supreme Court Decisions. We encourage women in counsel with husbands, doctors, and pastors to make their own responsible decisions concerning the personal or moral questions surrounding the issue of abortion."
Dean Wogaman testified that it was a common view among Protestant Christian theologians, and to some extent among other religious bodies, that human personhood in the sense in which the person receives its maximum value in relation to the Christian faith does not exist in the earlier phases of pregnancy. His view, and that of a number of other theologians, is that there is not a fully human person until that stage in development where someone has begun to have experience of reality. That experiencing of reality, in his view, would take place before the moment of birth, somewhere around the fifth month of pregnancy. Others among Protestant Christian theologians consider, rather, that there is no one point at which personhood emerges. Rather it emerges over the long months of pregnancy, and the degree of sanctity or value ascribed to fetal life increases correspondingly to the stages of fetal development. The theological basis for relating human personhood to the dawning of awareness is that the basis of the covenant between God and humanity is that it is a covenant between beings possessing awareness; the covenant subsists between God as the Creator of reality and those who have begun to experience the reality which God has created. Before the time of awareness abortion is a much freer option; Dean Wogaman considered that the Supreme Court guidelines in Roe v. Wade corresponded approximately to his theological position; even at the last phase abortion would be appropriate where there is grave risk to the health and life of the mother, and where it can be known that the fetus is so gravely deformed that the new life will never be able to experience genuine human fulfillment. In the present state of biological technology viability might roughly correspond with the point of awareness of reality. Dean Wogaman summarized his view in saying that the United Methodist position is not only to state the circumstances in which the collective judgment is that abortion would be wise, but to refer that question to the woman and her own religious conscience, and, therefore, the church does not interpose its institutional judgment. Referring to Congressman Hyde's contention that a fetus is a human life and not a merely potential human life but a human life with potential, Dean Wogaman contended that virtually all theologians and all ethicians would agree that descriptive science cannot establish the value of an entity; the entity's value is determined by its relationship to the ultimate reality that is there; Dean Wogaman appeared to mean that science did not profess to answer value questions and that value questions remained moral and ethical questions and were therefore basically religious in character. Put in another way, Dean Wogaman's position was that facts do not establish value, and, in consequence, that descriptive science cannot ascribe values to entities; the value of the entity arises from its relation to ultimate reality, and science can be no more than descriptive of the entity. The value question is one of moral judgment and is ultimately religious in origin. Dean Wogaman's position was that finally ethics and morality have a religious root or else are either purely formal or rather trivial.
Dr. Paul Ramsey, Professor of Religion in the Department of Religion at Princeton, specializing in Christian ethics and a member of the Commission of twenty-five United Methodists who drafted the Statement of Social Principles for the United Methodist Church, testified that Dean Wogaman was in error in saying that a reason justifying abortion might be that the new life might threaten to undermine the theologically understood fulfillment of the already existing human beings in the family; he argued that that concept had been excluded by a change in the language of the Social Principles Statement appended to the excerpts from the Resolution on Responsible Parenthood of the United Methodist Church. He disagreed also with Dean Wogaman's statement that there was a justification for considering abortion in the case of a woman who became pregnant close to menopause because of the social situation in which a baby born to very old parents might be placed; Dr. Ramsey thought that was not in accordance with Methodist or Christian teaching. Dr. Ramsey testified to a belief, based on his participation in the preparation of the Statement of Social Principles, that the reference to "unacceptable pregnancy" in the United Methodist Resolution on Responsible Parenthood was not a reference simply to unwanted pregnancies; he said that the term unacceptable pregnancy had been inserted in lieu of an earlier expression describing recognition of "the damage to women and families caused by the birth of malformed or intensely unwanted children." He agreed, however, that the term "unacceptable pregnancy" has not been defined. Dr. Ramsey disagreed also with Dean Wogaman's statement that the Methodist view referred the question of abortion to the woman's own religious conscience, not interposing its institutional judgment where the fetus was a self-aware being in utero.
The Roman Catholic Church has made very clear its institutional disapproval of the January 1973 abortion decisions of the Supreme Court and has publicly and strongly advocated the adoption of a constitutional amendment "providing protection for the unborn child to the maximum degree possible." On March 7, 1974, the second day of the hearings before the Subcommittee on Constitutional Amendments of the Senate Committee on the Judiciary, the Cardinal Archbishops of Philadelphia, Los Angeles, Boston and Chicago appeared as witnesses and submitted documentation on the right to life and abortion in support of their advocacy of a constitutional amendment that would "Establish that the unborn child is a person under the law in the terms of the Constitution from conception on" (Abortion Hearings, Part I, pages 153-253). During the questioning the Cardinals were asked whether they agreed to the correctness of Section 2 of the so-called Buckley Amendment (S.J.Res. 119, 93d Cong., 1st Sess.) which provided that "This article shall not apply in an emergency when a reasonable medical certainty exists that continuation of the pregnancy will cause the death of the mother," and it was made clear that, if that language was intended to permit direct abortion as distinguished from indirect abortion, it was opposed.
Under date of November 20, 1975, the National Conference of Catholic Bishops promulgated a Pastoral Plan for Pro-Life Activities. The Pastoral Plan opens with a quotation from the Constitution on the Church in the Modern World that concluded, "from the moment of its conception life must be guarded with the greatest care, while abortion and infanticide are unspeakable crimes." After referring to the trend of laws and decisions denying or ignoring basic human rights and moral responsibilities for the protection and promotion of the common good, the pamphlet continued by saying:
"In this category are efforts to establish permissive abortion laws, the abortion decisions of the United States Supreme Court in 1973 denying any effective legal protection to the unborn child, and the growing attempts to legitimatize positive euthanasia through so-called "death with dignity' laws."
The Pastoral Plan outlined three major efforts: (1) an educational/public information effort, (2) a pastoral effort addressed to the specific needs of women with problems related to pregnancy and abortion, and (3) a public policy effort directed toward the legislative, judicial and administrative areas so as to insure effective legal protection for the right to life. Then the pamphlet continued:
"This Pastoral Plan is addressed to and calls upon all Church-sponsored or identifiably Catholic national, regional, diocesan and parochial organizations and agencies to pursue the three-fold effort. This includes ongoing dialogue and cooperation between the NCCB/USCC on the one hand, and priests, religious and lay persons, individually and collectively, on the other hand. In a special way we invite the continued cooperation of national Catholic organizations."
The public information/educational program visualized in the Pastoral Plan was addressed in its first aspect to the general public, and in its second aspect it would be directed primarily to the Catholic community. The Pastoral Plan pamphlet explained:
"Recognizing the value of legal, medical and sociological arguments, the primary and ultimately most compelling arguments must be theological and moral. Respect for life must be seen in the context of God's love for mankind reflected in creation and redemption and man's relationship to God and to other members of the human family. The Church's opposition to abortion is based on Christian teaching on the dignity of the human person, and the responsibility to proclaim and defend human rights, especially the right to life."
The second part of the threefold effort, Pastoral care, emphasizes moral guidance and motivation, service and care for women and unborn children, and the reconciliation of men and women to God, to one another, and in the human community. After discussing the reconciliation of sinners, the pamphlet continued:
"Granting that the grave sin of abortion is symptomatic of many human problems, which often remain unsolved for the individual woman, it is important that we realize that God's mercy is always available and without limit, that the Christian life can be restored and renewed through the sacraments, and that union with God can be accomplished despite the problems of human existence."
The third major element of the Pastoral Plan is the legislative/public policy effort. Stating that it is generally realized that the maintenance and protection of human rights are primary purposes of law, the pamphlet continues:
"As Americans, and as religious leaders, we have been committed to governance by a system of law that protects the rights of individuals and maintains the common good. As our founding fathers believed, we hold that all law is ultimately based on Divine Law, and that a just system of law can not be in conflict with the law of God.
"Abortion is a specific issue that highlights the relationship between morality and law. As a human mechanism, law may not be able fully to articulate the moral imperative, but neither can legal philosophy ignore the moral order. The abortion decisions of the United States Supreme Court (January 22, 1973) violate the moral order, and have disrupted the legal process which previously attempted to safeguard the rights of unborn children. A comprehensive pro-life legislative program must therefore include the following elements:
a) Passage of a constitutional amendment providing protection for the unborn child to the maximum degree possible.
b) Passage of federal and state laws and adoption of administrative policies that will restrict the practice of abortion as much as possible.
c) Continual research into and refinement and precise interpretation of Roe and Doe and subsequent court decisions.
d) Support for legislation that provides alternatives to abortion."
Noting that well-planned and coordinated political action at national, state and local levels would be required, the pamphlet states that the activity is not simply the responsibility of Catholics and should not be limited to Catholic groups or agencies.
There is to be in each state a State Coordinating Committee, functioning under the State Catholic Conference or its equivalent, which will include bishops' representatives from each diocese in the state, and will function to monitor political trends in the state and their implications for the abortion effort, to coordinate the efforts of the various dioceses and evaluate progress in the dioceses and congressional districts, and to provide counsel regarding specific political relationships within the various parties at the state level.
Diocesan Pro-life Committees are to coordinate groups and activities within the diocese, particularly efforts to effect passage of a constitutional amendment to protect the unborn child. The diocesan committee is to rely for information and direction on the Bishop's Pro-Life Office and on the National Committee for a Human Life Amendment. The objectives of the diocesan committee are: to provide direction and coordination of diocesan and parish education/information efforts and maintain working relationships with all groups involved in congressional district activity, to promote and assist in developing groups involved in pregnancy counselling and those providing alternatives and assistance to women who have problems in pregnancy, to encourage the development of "grass roots" political action organizations, to maintain communication with National Committee for a Human Life Amendment in regard to federal activity, so as to provide instantaneous information concerning local senators and representatives, to maintain a local public information effort directed to the media, including seeking equal time, etc., and to develop close relationships with each senator or representative.
Parish pro-life committees are to sponsor and conduct intensive education programs, promote and sponsor pregnancy counselling and other alternatives to abortion, generate public awareness of the continuing effort to obtain a constitutional amendment (coordinating efforts of parish pro-life groups, K of C groups, etc., and seeking ways to cooperate with non-sectarian pro-life groups, including right-to-life organizations; in each congressional district the parishes will provide one basic resource, the clergy having an active role in the overall effort), and prudently convince others Catholics and non-Catholics of the necessity of the constitutional amendment to provide a base for legal protection for the unborn.
In each congressional district a pro-life action group should be formed; its task is essentially political, to organize people to help persuade elected representatives, and its range of action limited, focused on passing a constitutional amendment; the action group should be bi-partisan, non-sectarian, inclined toward political action. The pamphlet states, in italics:
"It is not an agency of the Church, nor is it operated, controlled or financed by the Church."
The congressional district pro-life group is to conduct a continuing public information effort, directed to elected officials and potential candidates, to persuade them that abortion must be legally restricted; to counterbalance propaganda efforts opposing a constitutional amendment; to persuade all residents in the district that permissive abortion is harmful to society and that some restriction is necessary; to persuade all residents that a constitutional amendment is necessary as a first step toward legally restricting abortion; "To convince all elected officials and potential candidates that "the abortion issue' will not go away and that their position on it will be subject to continuing public scrutiny"; to enlist sympathetic supporters who will collaborate in persuading others; to enlist those who are generally supportive so they may be called upon when needed to communicate to the elected officials; to elect members of their own group or active sympathizers to specific posts in all local party organizations; to set up a telephone network that will enable the committee to take immediate action when necessary; to maintain an informational file on the pro-life position of every elected official and potential candidate; to work for qualified candidates who will vote for a constitutional amendment, and other pro-life issues; and to maintain liaison with all denominational leaders (pastors) and all other pro-life groups in the district.
Father Smith testified that the Pastoral Plan is not a doctrinal teaching but a program. He agreed that the changes in the abortion laws, from the point of view of the Roman Catholic position, reflected a net loss. He said, however, that he did not think the purpose of civil law is to enforce church teachings, and that the church did not need civil law to enforce its morality, but that, nevertheless, it was not optimum that civil law should be contrary to the church's teachings either. One purpose of the Pastoral Plan, he agreed, was to bring the civil law into consonance with Catholic teaching. Father Smith testified that it is very rare for church documents to get into particular statutes of particular states or countries on a doctrinal level, but that the country's legal system is certainly a matter of concern because it is part of the mores of the country: "Nobody lives in a vacuum, including Catholics." Father Smith was very clear that the pro-life effort in the congressional districts under the fourth part of the Pastoral Plan was political action, and that the church was careful and prudent about not getting into those activities as the church. He agreed that the attempts to enact a constitutional amendment were directed toward the same persons and for the same purpose, that is, as few abortions as possible.
How systematically the Pastoral Plan was carried out is far from clear. The Clergy Bulletin of the Diocese of Fargo, North Dakota, reflects, in the Bishop's instructions to the clergy, a fairly complete implementation of the program. There is no question that, to a very considerable extent, Roman Catholic clergymen have encouraged their parishioners to participate actively in the political effort to have a right to life amendment passed and to support the Hyde amendment. The evidence does not justify the conclusion that all Catholic clergymen have done so, and there is no evidence that their efforts, where made, are uniformly and certainly effective. A great deal of documentary evidence is in the record showing numerous parish and diocesan publications, and some national publications, urging political action, giving information on the voting records on the abortion issue of state and federal legislators, emphasizing the special importance of the abortion issue because of its connection with life values, intimating and, occasionally, advocating single issue voting, and, perhaps less frequently, cautioning against voting on a single issue where many issues are involved.
Annual March for Life marches have been organized to take place on the anniversary of the decision of Roe v. Wade and Doe v. Bolton, often preceded by a sermon or part of a sermon directed to the value of the march, and the march has often been noted in the parish bulletins. There were local marches or rallies, but, in addition, very considerable support was mustered for the annual march in Washington, D.C., on the anniversary of the Roe v. Wade decision. The evidence is that the annual march was made the occasion for visits to the offices of the legislators to impress on them the purpose of the occasion.
No complete census of the Catholic press was attempted in the record, but the record is replete with evidence that a number of Catholic periodicals give a great deal of attention to explaining the Roman Catholic point of view on abortion, soliciting support for organized Roman Catholic effort to enact legislation both constitutional and statutory, and providing information on the stand taken on the abortion issue by legislators and candidates for office. Some of the Catholic periodicals carried political advertising, and a number of the political advertisements, near election time, stated the candidate's position on the abortion issue. The parish publications, often simply mimeographs providing the calendar of church services, announcements of parish activities and meetings, and other matters related to the complex of parish activities, at times included some material on the abortion issue and not infrequently included a good deal of that material. Again, however, no census of the innumerable parish publications could be essayed, and the parish materials included in the record are not shown to be typical. Typical of the particular parishes during particular pastorates they must be.
Roman Catholic pastors have been urged to set aside the Sunday preceding January 22 to mark annually the decision in Roe v. Wade, and a nationwide "Respect Life" Sunday is recommended for observation in each October. The Pastoral Plan said of the latter, however, that
"The annual Respect Life Program sets the abortion problem in the context of other issues where human life is endangered or neglected, such as the problems facing the family, youth, the aging, the mentally retarded, as well as specific issues such as poverty, war, population control, and euthanasia. This program is helpful to parishes in calling attention to specific problems and providing program formats and resources."
In October 1976 "pro-life affirmation cards" were recommended for signature in connection with the Respect Life observance of that October. In Los Angeles the Feast of the Holy Innocents (December 28) has been made the occasion in each year from 1971 through 1978 for a candle-lit procession followed by the celebration of a Mass of Atonement; organized by a Holy Innocents Reparation Committee, whose 1978 chairman stated that the Committee is pursuing goals that are completely spiritual in nature, because abortion is primarily a spiritual and moral problem, not a political one, the Committee also sponsors at a parish church a monthly Mass, benediction and rosary of atonement for abortions. The Westchester (New York) Right to Life Committee included in a list of its endeavors in December of 1975 and 1976 an Annual Mass of the Holy Innocents in Ossining, New York.
The effort of clergymen and lay members of the Roman Catholic Church in the United States, although it does not express the attitudes and purposes of a unanimous religious body, has, however, been demonstrably resolute, well organized, and well supported by voluntary workers, and it has required and obtained very substantial sums of money. Statewide collections, through the parishes but with support from diocesan representatives, were taken up in New York; a common method was to solicit contributions outside the churches after the Sunday Masses, particularly for the "Respect Life" collection in October or early November of each year. In New York State the bishops were asked to request the parish priests to announce the collections and to permit the "canister" collections to be taken up outside the churches. The receipts accounted for by the New York Right to Life Committee from "Respect Life" contributions were:
The total revenue accounted for by the New York State Right to Life Committee for the year ending September 30, 1976, was $ 102,834.57, of which $ 60,932.88 represented "Respect Life" collections retained by the State Committee; the total revenue accounted for by the Committee for the ten months ending July 31, 1977, was $ 113,487.92, of which $ 77,656.77 represented "Respect Life" collections retained by the State Committee. A spring "Save-a-Baby" collection, organized as a raffle, accounted for $ 27,828.38 of the State Committee's revenue in the year ending September 30, 1976, and for $ 25,569.07 of its revenue in the ten months ending July 31, 1977. A portion, evidently one third in New York State, of the funds collected by the State Committees was reserved for the National Right to Life Committee. In Minnesota Right-to-Life organizations were stated beneficiaries of the Annual Catholic Appeal collection of the Archdiocese of St. Paul and Minneapolis, and a Catholic periodical published, under the heading "Opus Dei support for pro-life activities," a classified tabulation of sources or uses of funds; listed twice is "MCCL," the Minnesota Citizens Concerned for Life, a pro-life organization; it is listed once under the item "MCCL-Regional Office $ 1,000," and a second time under the item "From Bishop's Contingency/MCCL $ 3,500." The diocesan Opus Dei fund was described in an earlier issue of the same periodical as "a drive currently being held to aid diocesan projects of Catholic education and pro-life activities." Another Catholic periodical reported MCCL as raising $ 14,000 in Minnesota as "seed money" for work in several southeastern states. The MCCL Newsletter of April 1976 reported receipt of a $ 1,500 contribution from the State Council of the Knights of Columbus to help finance a projected "Lifemobile" travel trailer intended for use in explaining the MCCL view. Other newspaper items report activities of local Knights of Columbus Councils conducted to raise funds for MCCL.
Such press reports, plainly hearsay for the most part, have independent relevancy for the contribution that they made, whether accurate or not, to the clear impression that there was a very close identification between the pro-life, antiabortion position the move to end abortion for everyone and the "official" view of the Roman Catholic Church, an impression communicated to the readers of Catholic periodicals and to the public generally as well.
Not every element of Catholicism approved of the Pastoral Plan program to "go political" and bend efforts to enact a pro-life amendment and other legislation expressing the aim to end the legalization of abortion. The "Choose Life" pamphlet of the Leadership Conference of Women Religious, while taking an "unequivocal stand in opposition to elective abortion," saw a need to relate the recognizably complex issues involved to the life continuum at all levels euthanasia, capital punishment, violence and war, ecological stewardship, racial and sexual injustice and to inquire how each choice contributes to "a more life-giving society." The pamphlet recognized that women faced with the decision of choosing life or choosing abortion are women in crisis; in stating the need to pose "the pastoral questions," it presented a moving summary of the circumstances of the decision to choose life or abortion:
"How can the Church minister in a healing way to persons who are facing the death or prolonged illness of a child? to those who know psychologically they cannot sustain another pregnancy? to the one who knows her physical health cannot withstand a pregnancy? to one who has no partner in marriage to help her sustain financially, physically, psychologically, emotionally, the well-being of another human person? How does the Church community encourage women to nurture the life within when they are teenagers and still need to be "nurtured" themselves? when they have experienced rejection from their own families? when they seek sexual relations as a means of feeling some sense of intimacy and acceptance? when they are psychologically fragile, distraught, immature, and have a child to satisfy their need to be needed? when their needs for love and affection are so great that a child who interferes with or fails to return that love may become the victim of child abuse because of parental anger? How does the Church community act truly as "sister or brother" to an expectant mother who knows she is carrying a child to whom she will pass on hemophilia or sickle cell anemia? or who fears that her own addiction to drugs or alcohol will build up the chemical dependency in her unborn child? or to a woman who contracts measles during pregnancy and fears that her child will be brain damaged, or has reason to fear that the child will be physically deformed?"
The pamphlet emphasizes the need to make available and active adequate support services "so that the pro-life position can be made more credible." Emphasizing the need for active attention to legislative activity, particularly in the field of social legislation, the pamphlet observed that
"We have a responsibility to contribute actively to the intelligent identification of candidates for public office whose consistent stand is not limited to a single issue."
The pamphlet counselled increased attention to the place of law in the society and in the moral order, and continued:
"The relationship of morality to law is complex, particularly within a pluralistic nation. Contemporary society is extraordinarily diverse in terms of religious beliefs and practices. In such a situation, law cannot be co-extensive with morality since different religious beliefs result in different moral judgments and it is obvious that not all of them can or should be enforced by law. Yet, law and morality cannot be divorced. Even within a pluralistic society, law does not exist in isolation but reflects some cross section of the common beliefs and values of its people. Furthermore, most serious breaches of law are also moral offenses and the notion of personal responsibility which informs law was first a principle of morality before it was incorporated into the legal realm."
Saying that the conflict between ideal and feasible law making becomes particularly intense when applied to abortion, and that, in theory, the conflict should not occur because the issue is life, the pamphlet went on:
"However, it is not that simple. A legal position on abortion ultimately rests on a moral evaluation of fetal life and there is wide disagreement in society as to the nature and dignity of that life. This is why the feasibility aspect of an abortion law is so difficult. The good whose legal possibility is being discussed is itself under bitter questioning.
"It seems clear that any law which would be capable of winning passage at this time would be far from satisfactory. It also seems clear that a law which rests on a moral position will be looked upon as an imposition of one view on the rest of society."
The Executive Board of the National Federation of Priests' Councils in September 1976 advised Cardinal Cooke (Archbishop of New York and Chairman of the Committee for Pro-Life Activities of the NCCB) that it favored an amendment to protect the lives of the unborn, the aged, the ill and the disadvantaged, and it stated:
"Deep concern, however, was expressed by a vast majority of board members that this one issue is being stressed by the U.S. hierarchy to the neglect particularly of other important social issues stressed by the NCCB in the document Political Responsibility in an Election Year. Rightly or wrongly, the impression reflected by many of these board members is that the one issue on which candidates are being judged is their legal approach to the issue of abortion. We hope that in the coming months a more balanced image will surface." (Origins, Vol. 6, No. 15, Sept. 30, 1976.)
An editorial in Commonweal (January 2, 1976), while addressed broadly to the root cause of a supposed decline in Roman Catholic church going and in the quality of its leadership, and suggesting changes that might lead to renewed spirituality, asserted:
"Meanwhile, the American bishops, rather than recognize the crisis which has grown up over their failure to deal with their people's problems with the liturgy, birth control and divorce, have pulled themselves deeper into the quicksand with their plan for "citizens lobbies' in every congressional district to work for an anti-abortion amendment.
"We did not approve of the Supreme Court's ruling on abortion; and we support the right of religious groups to lobby for legislation that protects those human values that have a religious dimension. But in staking their prestige on the abortion issue, which is more and more an open question in some Catholic minds, the bishops have shown their indifference to the ecumenical dimension of this issue, raise questions about the violation of church and state laws and over-estimating their influence with their constituents have promised a vote they can't deliver. The anti-abortion amendment is a right-wing issue, and the bishops will quickly become tools of conservative so-called "pro-life' (and perhaps anti-busing, anti-"welfare chiselers,' pro-arms race, pro-CIA) candidates in the 1976 elections. The effort will fizzle and the church will have been had. With shepherds like this, is it any wonder that the flocks have wandered away?"
A December 27, 1975, editorial in the Jesuit magazine America noted that issues connected with abortion had become more diverse and complicated than was implied in the pro and anti-abortion labels, and that "abortion" had become a code word for a range of issues:
"Over and above the fundamental questions of the morality of a pregnant woman's choice to abort and of the morality of those who cooperate with her in executing the abortion decision, the nation is faced with a series of other fundamental questions about the shape our public policy on abortion should take."
Referring to the Public Information/Education Program in the Pastoral Plan, the editorial said that such a program must be preceded by one within the church, and continued:
"It seems regrettable that there is no explicit recognition by the bishops that many Catholics have persistent doubts about the correctness and wisdom of the hierarchy's stand on certain aspects of what our public policy should be. These doubts exist particularly with respect to whether a constitutional amendment should be sought and, if so, what kind of constitutional amendment. . . .
"Even more radically, it would be fatal to proceed on the assumption that there are no hesitations among educated and loyal Catholics about the morality of abortion itself. The church's teaching that abortion is a "grave sin' and an "unspeakable crime' is quite clear. Nevertheless, many individual Catholics, and especially women, who have faced abortion as a personal problem in their own lives or in those of close friends and relatives, suffer from deep-seated doubts about the correctness of the church's teaching that there are no exceptions to the rule against direct abortions. Such doubts are no proof of disloyalty in faith and morals, especially when the faithful who encounter them do so because of serious and conscientious attention to both the church's teaching and the practical dilemmas that sometimes face pregnant women."
An editorial in the March 6, 1976, issue of America denounced single-issue voting, related to the abortion issue, as opposed to the policy statement of the Administrative Board of the U.S. Catholic Conference, as leaving out of view other social and political issues, and as "a disastrous misunderstanding both of Christian political responsibility and effective political strategies." The editorial asserted that impugning "the good conscience of those disagreeing with us is itself a contradiction of Christian life," and that the misgivings that many Catholics "feel about some of the anti-abortionist tactics" are not "a failure of nerve before the secularist establishment." Much later, in the National Catholic Reporter of July 14, 1978, an impatient editorial decried the distortion of emphasis produced by the anti-abortion campaign "The pro-life movement is distorting the Catholic Church's public image."
"Religion" has been defined as "An attitude of awe towards God, or gods, or the supernatural, or the mystery of life, accompanied by beliefs and affecting basic patterns of individual and group behaviour" (The Fontana Dictionary of Modern Thought, 1977), and Webster's Third New International Dictionary (1961) has defined religion (in terms of being "religious") as "the personal commitment to and serving of God or a god with worshipful devotion, conduct in accord with divine commands especially as found in accepted sacred writings or declared by authoritative teachers, a way of life recognized as incumbent on true believers, and typically the relating of oneself to an organized body of believers," and the dictionary further defines religion, in objective terms, as "one of the systems of faith and worship." The Supreme Court in Wisconsin v. Yoder, 1972, 406 U.S. 205, 215-216, 243, 92 S. Ct. 1526, 1533-1534, 1547, 32 L. Ed. 2d 15, had to deal with a creed, a religion, that was presented as "not simply a matter of theocratic belief," but as one in which "religion pervades and determines virtually (the believers') entire way of life, regulating it with the detail of the Talmudic diet through the strictly enforced rule of the church community," prompting the Court to say that although determining "what is a "religious' belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standard on matters of conduct in which society as a whole has important interests" notwithstanding that as Justice Douglas observed, "Religion is an individual experience." The concern in the present case is with institutional religion and the concern of institutional religions with abortion.
The Roman Catholic Church's position on abortion is not of the same order as the Christian beliefs set forth in the Nicene Creed (A.D. 325), nor in the Roman Catholic dogmas of the Immaculate Conception and the Assumption. These deal with central beliefs of Roman Catholic Christianity; they are unmistakably and ineffaceably religious, by any definition. The position on abortion is a moral one. Rabbi J. David Bleich testified to the Senate Subcommittee (Hearings, Abortion Part 1, Vol. 1, p. 288) that on the presupposition that the unborn fetus is a human being, "the question of abortion is quite properly a general moral one rather than a uniquely religious or uniquely sectarian one"; later, when asked for his answer to the suggestion that a right-to-life amendment would be "imposing a religious concept on others," he answered (p. 317):
" . . . our society clearly distinguishes between religious viewpoints and moral viewpoints or, if you like, the difference between dogmatic theology and rational theology. The provision against homicide would not be viewed by anyone as in our society as being a purely religious one or sectarian view. I think that we all recognize that homicide is an offense against moral consciousness. By the same token I would view feticide as a form of manslaughter at the very minimum and as such, fetal life is entitled to protection. And society in doing that is simply reflecting moral views, which are not part of the sectarian code of any specific religious denomination but rather a part of the common morality of Western civilization."
The Declaration on Abortion is a teaching of the Church, of the supreme Magisterium "which teaches moral norms in the light of faith." The teaching entails a grave obligation for Christian consciences. But although the Declaration cites Scripture for God's identification with life, his willing of life and his enmity to evil and death, explains that human life even on this earth is precious since it is infused and taken back by the Creator and remains under his protection, that life is a gift and a responsibility, it nevertheless points out that (footnote 5) "The authors of Scripture do not make any philosophical observations on when life begins but they speak of the period of life that precedes birth as being the object of God's attention: he creates and forms the human being, like that which is moulded by his hand (cf. Ps 118:73). It would seem that this theme finds expression for the first time in Jr 1:5. It appears later in many other texts. Cf. Is 49:1, 5, 46:3; Jb 10:8-12; Ps 22:10, 71:6, 139:13. In the Gospels we read in Luke 1:44: "For the moment your greeting reached my ears, the child in my womb leapt for joy.' " The Declaration recites the early Church's opposition to the morals of the Graeco-Roman world and espousal of Christian morals condemning both abortion of the fetus and murder of the born infant, and it quotes Athenagoras's condemnation of "killers of children, including those still living in their mother's womb." Then the Declaration asserts that "the various opinions on the infusion of the spiritual soul did not introduce any doubt about the illicitness of abortion." St. Thomas Aquinas is cited as teaching that "abortion is a grave sin against the natural law." Vatican II is quoted as saying that "Life must be safeguarded with extreme care from conception; abortion and infanticide are abominable crimes." Arguing from the light of reason, the Declaration asserts that the right to life is antecedent to its recognition, and that life may not be discriminated against based on the stage of its existence: from the fertilization of the ovum a life is commenced which is not that of either parent. The Declaration states that, independent of discussions about the "moment of animation," from the first moment the individual living being which "will be" is "determined." And, as noted above, page 693, the Declaration leaves aside "the question of when the spiritual soul is infused," observing the absence of a unanimous tradition on the point, and that authors are still in disagreement. The significant point is that the Declaration is not rested on any notion that an embryo or fetus is a "human person" with spirituality, a soul. The moral principle is independent of that.
The right-to-life movement, although not confined to Roman Catholics and Roman Catholic clergymen, does use religious language, invokes religious motivations, and enlists prayer as an aid. The Declaration on Abortion and the Pastoral Plan of course embody explicitly religious teaching: the Declaration "entails a grave obligation for Christian consciences"; the Pastoral Plan speaks of "the grave sin of abortion," as does the Declaration. Rational analysis and biological learning may, in the teaching of the Declaration, suffice to impose the same obligation to respect human life, but the obligation is seen as nonetheless religiously imposed.
While all explicitly religious references are excluded from, for example, the Rose leaflet solicitation for the January 22, 1978, March for Life, the right to life and the need for a mandatory human life amendment are stated in terms of "the life of each human being" and of its preservation "from that human being's biological beginning when the Father's sperm fertilizes the Mother's ovum." And the leaflet announced a vigil and assembly that would "prayerfully anticipate our lobbying activities"; pro-lifers are to "continue the battles so that good can triumph over evil." In 1974 "Operation Avalanche," a program to "force enactment" of the human life amendment in 1975, by directing an "avalanche" of ten million letters to Congress, professedly acted on the suggestion of the NCCB; and it circularized a flyer by its national chairman appealing for a resetting of the nation "upon the theocentric foundation laid down by the Protestant Founding Fathers." The literature of those opposing abortion speaks of embryos and fetuses as human beings, children, unborn children, the innocent unborn, and it personifies them. Abortion is characterized as murder.
A theme constantly used in right-to-life literature is that abortion is a Slaughter of the Innocents, paralleling, exceeding Herod's slaying all the children in Bethlehem and its neighborhood two years old and under (Matthew 2:2-6, 16). A retired bishop, chaplain of the Knights of Columbus, speaks of abortion as violating the "sacredness of the life of an innocent child," and speaks too of the "legalized massacre of unborn infants," and says that the "tiny, unsilenced, haunting voice of the murdered unborn child will ever be gnawing at the conscience of the guilty mother." The New York State Right to Life Committee seeks to raise funds to halt "the 20th Century Slaughter of the Innocent." Representative Hyde used the reference to Matthew in an October 1977 speech to the Maryland Right-to-Life Convention; he spoke of "The slaughter of the innocents. We have over 1 million homicides a year . . . ." In an April 22, 1978, speech in St. Louis Mr. Hyde again referred to Herod's attitude toward the dimensions to which "we have extended his slaughter of the innocents."
The religious association was kept alive not only by references to the issue in parish and diocesan publications but also by the practice of having prayers said and services conducted in direct relation to the pro-life activity. A CDAC Action-Alert, of the National Committee for a Human Life Amendment, mobilizing efforts to support the Hyde amendment in September 1977, requested that the addressees in each Congressional district
"EACH DAY, until the Congressman agrees to support the present Hyde language, have a different congregation or parish conduct a private, 24-hour prayer vigil in behalf of the unborn."
The same exhortation was repeated in a CDAC Action-Alert of November 9, 1977, and it was added that the addressees' "past prayers" accounted in the writer's view for the Hyde amendment's remaining in effect. Reference has already been made to the Processions of Reparation and the monthly Mass in Los Angeles; the Knights of Columbus marched in the procession, and a statue of Our Lady of Fatima was carried. An October 1973 New York State Right to Life Newsletter suggested that "One resolution which can't wait any longer is one calling for all RTL people to make a special effort to pray together (although separated by miles)" at one agreed hour one day in each week. Work in the 1976 "Save-A-Baby" fundraising campaign is referred to as "truly God inspired," and the enthusiasm shown at the 1976 National Right to Life Convention is described as manifesting "Joy in doing God's work for the "denied' ones . . . ."
Roman Catholic clergy and laity are not alone in the pro-life movement, but the evidence requires the conclusion that it is they who have vitalized the movement, given it organization and direction, and used ecclesiastical channels of communication in its support. The union of effort with representatives of other denominations is based on shared religious conviction.
The divergence in views among religious leaders of different faiths has generated more dispute than useful interdenominational dialogue, but the absence of unanimity within denominations is an element that impairs clarity of dialogue in any direction. The Religious Coalition for Abortion Rights (RCAR), an organization of national religious bodies,
" . . . seeks to encourage and coordinate support for safeguarding the legal option of abortion; for ensuring the right of individuals to make decisions concerning abortion in accordance with their consciences and responsible medical practice; and for opposing efforts to deny these rights through constitutional amendment, or federal or state legislation."
RCAR argued that
"It is vital to build public awareness of the principle that in a pluralistic society the state should not embody in law one particular religious or moral viewpoint on which widely differing views are held by substantial sections of the religious community. All those concerned with religious liberty can join in opposing any attempt by constitutional amendment or legislation to take us back to the era of criminal abortion which legally denied to all, but in practice, particularly denied to the poor, the right and responsibility to make their own decisions.
"We believe that religious organizations have a special contribution to make to this significant and complex matter."
In opposition to the efforts of Roman Catholic clergy and laymen to secure passage of a human life amendment and restrictions on abortion funding, RCAR and some of its member religious organizations have taken limited action, including issuance of press releases making known its and their opposition to legislation inhibiting freedom of choice in respect of abortion. RCAR very particularly decried injection of the abortion issue into the 1976 presidential campaign, and protested President Carter's failure to meet with representatives of eleven Protestant and Jewish denominations on the abortion issue after he had met with members of the Catholic hierarchy. When a Catholic periodical, the Wanderer, in April 1978, published an article stimulated by the television showing of "The Holocaust," suggesting that the deliberate formulation and appalling execution of this "Final Solution" had parallels in the far greater degree of guilt involved in the permissiveness of Americans toward abortion, RCAR promptly issued a release asserting that Jewish and Christian communities "reacted with outrage" to the charge that legal abortion may be a greater sin than was the Holocaust. Through its chairperson, RCAR, in February 1977, protested against retired Bishop Sheen's statement of January 21, 1977, to a vigil sponsored by March for Life, that the country was divided into "biophilics" and "necrophilics," and linking abortion, the Holocaust and euthanasia; the RCAR letter to Bishop Sheen concluded:
"Honest men and women can differ on the morality of abortion but let's for Heaven's sake keep the dialogue rational. Epithets and slurs can only confuse and obscure."
Independently of RCAR, over 200 theologians and pro-choice ethicists published, in the October 3, 1977, issue of Christianity and Crisis, a "Call to Concern" expressing support for the January 1973 Supreme Court decisions, and opposition to the "absolutist" position that it is always wrong to terminate a pregnancy at any time after the moment of conception; the "Call to Concern" states that the most compelling argument against the inflexibility of the "absolutist" position is its cost in human misery, and that the signers believe it is wrong to deny medicaid assistance to poor women seeking abortion; it is then said that
"We are saddened by the heavy involvement of the bishops of the Roman Catholic Church in a campaign to enact religiously-based anti-abortion commitments into law, and we view this as a serious threat to religious liberty and freedom of conscience."
Organized pro-life activity has included the picketing of abortion clinics, a demonstration intended to persuade the pregnant women to forego abortion; in some instances, apparently few, protesters against abortion have entered clinics and used a species of sit-in tactics to half-dissuade, half-prevent pregnant women from undergoing abortion. Roman Catholic institutions, on a limited scale, have encouraged picketing of such clinics; that appears to have been the case in the picketing of the Highland Park, St. Paul, Planned Parenthood Clinic. However, when a possibly incendiary fire occurred at the clinic on Ash Wednesday in 1977, causing very extensive damage, and a suspension of operations, the editor of the Catholic Bulletin, the diocesan publication, deplored the action and its violence, insisted that the battle for "human life" would have to be won in the courts, the Congress and the legislatures, in the media, and, finally, before the bar of public opinion, and concluded that the incident had set the pro-life campaign back. The editorial, after referring to the clinic as an "abortion mill" and a "little Dachau," noted with relief that no one was seriously injured in the fire, that no lives were lost, and then asked, "who knows how many lives were lost earlier the same day as the clinic went about its daily routine of snuffing out human lives . . . ." RCAR reported that a bomb thrown at a window of the same clinic a year later failed to detonate.
Other incidents, few in number, of such vandalism against abortion clinics have occurred; such incidents have been reported as occurring in Omaha, Cleveland, Columbus, Cincinnati, Akron, and Burlington, Vermont. RCAR by letter to 270 Roman Catholic bishops referred to the St. Paul and Omaha incidents, and then said:
"Whatever differences there may be among us regarding the moral and theological implications of abortion, as religious people we cannot stand idly by while a climate of violence grows in this country. Our Judeo-Christian heritage and the traditions of our democratic form of government both speak to the importance of solving our disagreements by peaceful means. Fear and intimidation are not appropriate means of arriving at constructive solutions to difficult social problems. If religious leaders remain silent, we appear to endorse the attempts of a misguided few to enact their will at all costs.
"We are therefore calling upon you to join the undersigned in endorsing the enclosed statement, which calls for an end to violence and for efforts to debate our differences in a spirit of dignity, decency, and openness of mind. We also ask you to issue a statement which supports these concepts to your constituencies."
While none of the Roman Catholic bishops appears to have responded affirmatively to the tacitly accusatory "call," two bishops who answered the letter expressed disapproval of violence, but found the letter's appeal against violence to property incompatible with the RCAR's attitude toward the graver violence implicit in abortion. And, after the firing of a Cleveland clinic in February 1978, the Roman Catholic bishop of Cleveland issued a statement advocating peaceful discussion of the issue.
Because there is no evidence of the identity of those responsible for the vandalization of abortion clinics, no more can be said than that the issue is one that lends itself to extremes of expression and to easy incitement to anger and violence.
The seeming religious confrontation, with the damage that it may well be doing in the already difficult area of ecumenism, does not relate to whether the issue is one involving moral principle and resting on religious teaching. Nevertheless the denominational teachings, where the premises of all the denominational teachings in this area appear to be the same in substance, necessarily derive their conclusions by reason not revelation; the derived principles govern conduct, not worship; they relate to the field of the last seven commands of the decalogue, not to the first three. While the denominational differences do not seem to be explicable in terms of the differences in central beliefs that distinguish the denominations but to be explicable only as different reasonings from common premises, the differences are identifiably religious, and constitute an integral element of denominational religious difference. The differences do not in truth turn on whether an embryo or fetus or, indeed, a zygote or blastocyst is a "human being," but on the direct moral evaluation of the interests involved. So in the Orthodox Jewish view, the fetus is simply a limb of the mother until birth, but it may not be aborted except where the life of the mother is in the balance. The Roman Catholic doctrine puts on the embryo and fetus a value equivalent to that placed on the life of born human beings, ignoring its futurity as irrelevant to a value analysis determined by considerations of divine purpose and of the divine relation to the creation of human life. In different degrees other denominations deal with the embryo and fetus as having values but values of a different order than that belonging to born human beings until the fetus is born; hence the value attaching to the fetus remains subordinate to the value attaching to the life of the mother. In some views the value attaching to the fetus is subordinate as well to the mother's health interests, and the value attaching to the fetus may vanish as a value if the prospect that the fetus will attain fulfillment in life approaches nullity. But all the views are rooted firmly in religion, in belief in God's will, in God as the author of life, and in God's concern with humankind. The moral principle once determined by right reasoning is recognized as willed by God; it is, simply, inevitable, and beside the point, that reasonable men, without any knowledge of God or of his existence, would evolve the same principles of action by right reasoning alone as appropriate determinants of conduct in the civil order.
The Declaration on Abortion is explicit that
"Human law can abstain from punishment, but it cannot declare to be right what would be opposed to the natural law, for this opposition suffices to give the assurance that a law is not a law at all."
That is, natural law, immutable because ultimately divine in origin, and discoverable by reason, itself divine in origin, can tolerate the absence of any punishment for abortion by civil government the decriminalization of certain abortions but it cannot tolerate its affirmative legalization since that transgresses natural law. Other denominations make precisely the same argument to different conclusions: that law which attempts to make illegal what religious conscience justifies as licit is not tolerable, because it conflicts with the rule of conduct that moral theology explicates.
Abortion became a political issue of prominence after the Supreme Court's decision of January 22, 1973, not only through the effort to secure enactment of a human life amendment, but also through state and local legislative efforts and the effort to enact the Hyde amendment and its successors. Candidates for public office have been identified as pro-life and pro-choice, and, indeed, in the 1976 presidential election there was a candidate campaigning on a pro-life platform. A Westchester (New York) Right-to-Life Committee printed a pamphlet "Vote Survey" for pro-life groups to use in the forthcoming elections; it stated:
"Where a choice is indicated in November, all pro-lifers will be called to support the pro-life candidates irrespective of party affiliation of the voter and/or candidate.
"The result? Pro-life candidates become members of the 94th Congress who will work to get the Human Life Amendment passed; pro-life state senators and assemblymen will be in the New York State Legislature to ratify the HLA.
"Even if only a minority of pro-life voters are surfaced, it can still accomplish its goal, especially in primaries when relatively few voters turn out.
"Party loyalties must be laid aside, especially by those involved with a party, unless they influence their party to back only pro-life candidates."
During the 1976 presidential campaign representatives of the NCCB visited both candidates and elicited expressions about abortion from them. The result was extensive newspaper coverage of the candidates' views and vigorous discussion in the newspapers of the propriety of the NCCB action and of the meaning and the political significance of the candidates' expressions of view. The NCCB action was construed by some as supporting President Ford's candidacy and as intended to influence Roman Catholics to vote for the President. Newspaper reporting saw both candidates as trimming their sails to meet the seeming NCCB wind. Federal funding of abortion was injected into the newspapers' interviews with the candidates and reports of the candidates' remarks. Ultimately NCCB issued a statement of non-partisanship, the effect of which is necessarily a matter of conjecture.
There is little room for conjecture except on the issue of ultimate effect concerning the impact of organized pro-life activity on Minnesota politics.
Mary Peek decided, when in 1972 Minnesota's redistricting of its senate and house created a vacancy in her district, to stand for the House of Representatives from her Twin Cities area district. She had been active in Democratic-Farmer-Labor (DFL) politics, had taught high school and had some experience from that of high school students' pregnancy-abortion matters, had participated in anti-war activities (Vietnam), had been a founder of the local League of Women Voters unit, and had a position on current state issues. She favored reform of the state's abortion law. She sought the DFL party endorsement, but was advised that the DFL already had chosen a young man who had recently moved into the district: "He's a Roman Catholic and safe on abortion," she was told. "We cannot afford to lose the district." The district was considered a DFL district but was of mixed income levels, and, in Mrs. Peek's view at least, its large Roman Catholic population included more conservative than liberal Catholics. When Mrs. Peek appeared before the DFL local board she was questioned about her stand on abortion and her statement of position seemed to Mrs. Peek to disturb the board. At more casual meetings she was asked about and disclosed her views on abortion. At a county board meeting at which the four candidates were present all were asked about their religious affiliation, church attendance and activity in church affairs; the young man named his parish church, his regular attendance and belief. When Mrs. Peek said that she was a Unitarian, an occasional church-goer and sought to live her beliefs, one of the Board members indicated a belief that Unitarians were atheists. Abortion was not mentioned in the meeting, but Mrs. Peek sensed that it was what occasioned the inquiries.
Mrs. Peek incautiously answered an MCCL questionnaire by saying that she favored the ABA position on abortion. She did not know the then most recent ABA position, and MCCL took the answer to mean that Mrs. Peek approved abortion if performed in the first twenty weeks. MCCL made the result of its poll of all candidates available to the diocesan periodical, The Catholic Bulletin, which, just before the primary voting, published the list, grouping Mrs. Peek with those who "Favor abortion on demand up to 20 weeks of gestation." A letter of correction, worked out with Mrs. Darle St. Martin of MCCL, explained that Mrs. Peek believed that if abortions were lawful, they should be performed in the first twelve weeks and that after viability abortions should not be performed except for the gravest reasons. The Catholic Bulletin published the letter, but not in its entirety, on September 8, 1972, and on September 13, 1972, published a further item asserting that it had treated Mrs. Peek fairly, and explaining that the ABA had adopted a resolution in February 1972 approving the Uniform Law, permitting abortion "on demand" up to twenty weeks, and under specific circumstances thereafter, and that the ABA had taken no earlier position on abortion, although the ALI formulated a proposal several years earlier.
Mrs. Peek experienced an erosion of support, and some positive attempts by former supporters to dissociate themselves from her candidacy. It was her impression that some Roman Catholics, even those whom she had regarded as liberal and willing to vote for her although unsympathetic to her stand on abortion, were ceasing to support her. She believed, nevertheless, that most of her avowed Catholic supporters continued to support her, although with difficulty; one said that she had heard Mrs. Peek called a murderer; she heard no statement that any priest had spoken against her, and, indeed, thought that some quietly favored her. When she handed out flyers at a shopping center, some of those to whom she gave them, tore them up in her presence, and others said they would not vote for her because of her stand on the abortion issue. Her children told Mrs. Peek that in school other children had said that their mother was a baby killer. Her stand on the Vietnam war was also raised against Mrs. Peek.
She lost the election by 116 votes. Two of the four in the race were elected. Her young DFL opponent ran first, a moderate Republican, who did not exploit the abortion issue, ran second, and an older DFL candidate ran fourth.
Mrs. Peek has continued her interest in politics and it is her judgment that the abortion issue has been far more divisive in Minnesota than the Vietnam war issue and the issue of aid to parochial schools.
Mrs. Peek does not assert that the abortion issue certainly caused her loss. But she observed that her young opponent's views on almost all issues approximated hers, that he was a DFL liberal too both Hubert Humphrey Democrats and that the added facts, that he had a view on abortion that was that of his many co-religionists in the district and that he did somewhat better than she did in the heavily Roman Catholic parts of the district, have significance. Mrs. Peek did not believe that there was any institutional coercion of Catholics, but that the social disapprobation of abortion within the Catholic community, resulting from the hierarchically created atmosphere of disapproval, must to some extent carry through to the voting booth.
As early as 1967, when the Abortion Rights Council and MCCL were formed in Minnesota, there were efforts to have the abortion law of Minnesota repealed or modified; a number of groups were interested in the matter, including religious, social and medical organizations and a Minnesota coalition group called Freedom of Choice. The position of the Roman Catholic Church on abortion had become known through legislative hearings before 1972. In that year, when the legislature was redistricted, and the DFL thought it possible that it could elect majorities in both houses, an effort was made to select candidates whose "profiles" would fit the districts they were to run in; the result was to favor selection of candidates who were "safe" on abortion. In that year MCCL identified all candidates' positions on abortion, and, as Mrs. Peek found, the Catholic Bulletin published the MCCL findings.
In 1973, in the new legislature bills were introduced to change Minnesota's abortion law, and the Supreme Court decisions were handed down: a flurry of legislative activity and publicity followed; bills were presented proposing to memorialize the Congress to pass a human life amendment; the Catholic Bulletin, early in February 1973, published articles quoting Catholic bishops as denouncing the Court's decisions and urging various types of action to limit their effect and to initiate educational and informational programs. There was active lobbying in the Minnesota legislature, and discussion in the public press of the issue and of the Catholic Church's "hard-sell" image on abortion, an approach to the issue to which some Catholic clergymen and laymen objected even though they accepted the Church's underlying moral teaching. In late March an editorial in a St. Paul paper warned that memorializing the Congress to pass a constitutional amendment would not bypass the issue but would put the state on record as wishing to "circumvent" the Supreme Court's decisions, and that, if the Congress did act on the memorialization, the memorialization would end in the legislature's having to face the issue later on in a vote on the proposed amendment. The hearings before and the debates in the legislature provoked discussion of religious involvement, interference with religious liberty, and denigration of personal religious values; higher authority was invoked, a court higher than the Supreme Court was referred to, and, on one side, there was insistence that the legislation dealt with human life. The rhetoric of debate was "harsh," "unbelievable." On April 6, 1973, a Minneapolis newspaper column, reporting the action of the State Senate Judiciary Committee on a bill requesting Congress to pass a human life amendment, stated that "Throughout the hearing, there were overtones of religious influence behind the anti abortion movement." A St. Paul paper reported a little later in April, 1973, that the Minnesota House passed a similar bill "after an emotional debate." The author of the bill was quoted as saying that the right to life is not a question of women's rights or of religious rights, but that "it is a question of public societal morality." The press reported, in May 1973, that the executive director of the Minnesota Catholic Conference (who had also become a director of MCCL), who acted as legislative lobbyist for the ten Roman Catholic bishops of Minnesota, had written to the bishops urging them to add their effort to MCCL's campaign to have the Minnesota legislature enact new restrictions on abortion; the letter suggested that the matter "be commented on from the pulpit or any place else which is appropriate"; with the letters to the bishops were enclosed copies of a bulletin of MCCL's lobbyist recommending that MCCL's members write their representatives that they would hold the "DFL-controlled Legislature and particularly its leadership, responsible" if Minnesota was left without any law to regulate abortion. When a Minnesota Senate bill was voted out of committee in May 1973, a newspaper quoted its author as saying that the bill reflected a compromise between "two totally different perspectives"; the reporter asserted that, "During the hearing he (the bill's author) was advised by John Markert, lobbyist for the Minnesota Catholic Conference. Several representatives of Minnesota Citizens Concerned for Life (MCCL) the major antiabortion organization, sat nearby; not far away sat several lobbyists for Minnesota Organization for Repeal of Abortion Laws (MORAL), the MCCL's principal adversary."
To a witness active as a Pro-Choice lobbyist during the 1973 legislative session, the members seemed to be divided into opposing groups who sincerely believed in their respective pro-life and pro-choice positions, and an intermediate group whose members sought a politically expedient course that would avoid direct commitment on the question. The pro-life proponents appeared to the witness to have a basically religious belief that life began at conception and that they had the obligation to protect that life; to the witness they seemed unable to distinguish between belief and imposition through civil law. The witness testified to her participation in the organization in the spring of 1973 of a DFL Feminist Caucus by party members (women and men) committed to fourteen principles, the first of which was separation of church and state, and another of which was support of the Supreme Court's January 1973 decisions. In the summer of 1973 a similar caucus was formed within the Republican party, and the two caucuses have cooperated in support of issues and candidates.
January 22, 1974, marked the first March for Life, one year after, as Archbishop Byrne expressed it, the Supreme Court "issued its tragic and destructive opinions on abortion." On that date a "Circle of Life" march was formed around the State Capitol school children were excused from school to take part in it; the St. Cloud Visitor, a publication of the diocese of St. Cloud, communicated the bishop's request that the people of the diocese engage in the Circle of Life program: the bishop's message to the pastors outlined six methods of participating, including special Mass or Masses at convenient hours, a prayer vigil in each parish, family prayer and acts of self-sacrifice during the week of January 22, emphasis in Catholic school and religious instruction programs on the sacredness of life, tolling of bells from 11:50 a.m. to 12 noon, and the "Circle of Life" observance at the State Capitol "arranged by MCCL members and friends," in which 3,000 marchers were expected to join. The bishop's message also complimented the people on having contributed $ 11,000 to the pro-life cause. The March for Life was organized by the MCCL and Catholic churchmen. (MCCL was not a Roman Catholic organization; a majority of its members were believed to be Roman Catholics, but it was both non-denominational, and, practically, interdenominational.)
The political year in Minnesota begins with preparations for the caucuses, held on the last Tuesday in February or the first Tuesday in March, in the more than three thousand electoral precincts in the state. Separate caucuses are held by the DFL and the Republican parties. Everyone who will be eighteen by the next general election is eligible to participate in his or her precinct caucus, but can attend only one. The caucus elects a number of delegates determined by the number of votes of that party cast in the precinct in the last preceding general election. The delegates elected in the caucuses elect from their number the delegates to the State Senatorial District Convention; the delegates to the District Convention elect from their number the delegates to the Congressional District Convention and the State Convention (the members of which are the same persons), and they in turn elect from their number delegates to the National Convention. Subcaucuses may be formed within the precinct caucus in terms of the delegate's position on a particular issue or cluster of issues. Delegates are elected on a proportional representation basis. Subcaucuses related to the abortion issue were to be anticipated in 1974 in light of the experience with the issue in the 1973 legislative session.
The 1974 caucuses were held on February 26, 1974. The parish bulletins of two Roman Catholic churches for Sunday, February 24, contained notices about the caucuses. The St. Rose of Lima bulletin said in part:
"ALL PRO-LIFE PEOPLE : Be sure to attend your precinct caucus to be held on Tuesday, February 26th at 8 PM. Roseville Precincts 2, 4, 6, 7 & 8 will meet at Alexander Ramsey High School. Roseville Precinct 5 will meet at Falcon Heights Elementary School. We need YOU to vote for pro-life delegates to Democratic and Republican conventions. There will not be another chance to do this for two years ! If you wish to know who your pro-life delegates are in your precinct or if you have any questions at all please call . . . Roseville-Falcon Heights Pro-Life Committee.
"PRO-LIFE MASS at St. Rose on Tuesday, Feb. 26th at 11:00 AM for all those planning to attend the caucuses that evening. The theme of the Mass will be: "Encouragement in the Lord." Members of St. Odilia's & Corpus Christi Churches have also been invited to join us at this Mass."
The relevant part of the St. John the Baptist bulletin read:
"Do you Love Life? If you are concerned about the erosion of our traditional values of respect for life as seen in the issues of Abortion, Infanticide & Euthanasia, then Tuesday the 26th is the day you can do something about it. Join your friends & neighbors at your precinct caucus & guarantee that your views be represented by becoming a delegate or voting for a pro-life delegate. For more information call Marilyn Nystrom . . . "
The bulletin also invited those interested in knowing more about the pro-life movement to attend "an informational meeting & re-grouping of the New Brighton Chapter of MCCL" at the New Brighton village hall.
A flyer of unknown origin distributed in Fridley on the same Sunday, addressed to "Fellow Catholics," asserted that "we" need your votes at the precinct caucuses on resolutions for human life legislation and for "equal funding for each student" whether a student in public or in private school. The flyer asserted that in 1972 there were 100,000 at the DFL caucuses and 35,000 at the Republican caucuses, and that there were 640,000 Roman Catholics aged 18 or older in the state. After giving the addresses of three DFL and one Republican caucus, the flyer continued:
"The caucuses will last only one hour required by law so be there on time. One hour out of your life to help save a lifetime for an un-born, and to save your right to send your children to what school you would like. When a baby is aborted and your private school is gone, they're gone forever. So if you are tired of the indignities heaped upon us as a Catholic community judicially then attend these caucuses and cast your shadow on these issues of our time."
There is no evidence that clergy of any other denomination urged their congregation to support caucus candidates on the basis of their positions on the abortion issue; clergymen of such other sects simply urged their congregations to attend the caucuses. The DFK Feminist Caucus sent out mailings referring to threats to religious liberty.
The selection of delegates at the precinct caucuses in many districts produced subcaucuses identified as "Pro-Life" and "Freedom of Choice," directly referring to the abortion issue, and there were "Supreme Court Dec." subcaucuses representing a pro-choice position; "Unity" and "Labor" subcaucuses reflected a concern with avoiding polarization on the abortion issue; "Independent" and "Progressive Democratic" caucuses reflected a pro-choice position linked with, apparently, a position on other issues as well. Other subcaucuses are identified as "Education," "Environment," "United DFL," and by proper names; no subcaucus designation is recorded for many delegates to the district and state conventions, but the absence of a designation does not necessarily signify that the precinct delegate or a precinct delegation did not reflect an ascertainable alignment on issues. The record of the delegates to one district (and state) convention in evidence shows the extent of the subcaucus identifications related to the abortion issue.
Precinct subcaucus designations could survive into the district and thence into the congressional and state conventions; however, a subcaucus that reflected no more than the minimum number of votes needed to elect one delegate would be unlikely to survive into congressional and state conventions. The pro-life subcaucus designations were very evidently numerous enough to secure injection of the abortion issue into the 1974 primary and general elections in Minnesota.
As in 1972 the Catholic Bulletin published the MCCL identification of pro-life and pro-choice candidates both for the primary and for the general election. A council of the Knights of Columbus circulated a mimeographed flyer headed "Support Respect for Life" giving the names of the candidates for statewide office, United States House of Representatives and for the Minnesota legislature in the district, together with their party designations and their response to a questionnaire asking their attitudes toward the "Respect for Life and/or the liberalized abortion issue." Not all candidates responded; the statewide DFL caucus had agreed that DFL candidates on both sides of the issue would decline to respond; eleven candidates answered that they supported "Respect for Life," and nine did not respond. After listing the names and responses the flyer continued:
"It is our duty as Catholics and Christians to vote for the Pro-Life candidate regardless of whether or not it means crossing party lines. To do otherwise is to give our stamp of approval to legalized murder."
A flyer circulated in the 4th Congressional District listed candidates for Congress and the state house of representatives in three columns, "pro-life," "pro-abortion," and "no response," and among pro-life candidates distinguished with an asterisk those who were "strong pro-life candidates." The flyer's data were said to be from a recent MCCL survey and from voting records. Just above the list of candidates was printed, in solid capitals, the statement:
"OVER A MILLION BABIES ARE KILLED IN COLD BLOOD BY THEIR MOTHERS EVERY YEAR. ONLY YOU CAN STOP THEIR SLAUGHTER. VOTE FOR CANDIDATES WHO ARE PLEDGED TO SUPPORT THE HUMAN LIFE AMENDMENT TO THE U. S. CONSTITUTION."
The Republican candidate for Congress was asterisked as a "strong pro-life" candidate; his adversary, the incumbent, was also pro-life, but a newspaper advertisement of his Republican opponent, under the prominent heading "PRO-LIFE," criticized the incumbent's alleged failure to work for immediate passage of a pro-life constitutional amendment "bottled up in a House Committee while countless lives are being terminated." The incumbent DFL candidate won the election, and in 1976 did not stand for re-election. In an election for one of the state House seats a windshield flyer circulated by a pro-life citizens committee asked voters to "Make sure you get what you vote for/Moral, responsive representation/Life is the Issue." The pro-life candidate, the incumbent, who had fairly recently adopted that position, was supported on the ground that he "Denounced the U.S. Supreme Court ruling on abortion," whereas his opponent "Supports the U.S. Supreme Court ruling on abortion. (The ruling in effect provides abortion on demand.)" The flyer stated that the pro-life candidate would vote for a "right to life" amendment to the national constitution, and that he had voted for the MCCL bill regulating abortion in Minnesota (an enactment later held unconstitutional) and for the bill requesting Congress to pass a human life amendment. The flyer stated that the candidates' positions were given as they stated them at an MCCL-sponsored meeting on October 3, 1974. The pro-life candidate lost the election. (The invalidation of the law regulating abortion was commented on adversely by the editor of the Catholic Bulletin in an editorial that concluded with an appeal for prayers and for contributions to the Legal Defense Fund of MCCL.)
On January 22, 1975, the second anniversary of Roe v. Wade, a second "circle of life" demonstration was organized around the theme "Everyone deserves a birthday," under MCCL's sponsorship; participants were asked to take canned food to the demonstration as a "birthday gift" for the poor, and three day partial fasts were suggested to heighten awareness. The MCCL brochure on the "Celebration of Life" at the state capitol was addressed to "Minnesota Clergy," and the Catholic Bulletin of January 7, 1975, published an article summarizing the points of the proposed program and noting that participants were asked to send "pledges and savings on food costs to be donated to MCCL." The article concluded that "parish groups sending buses to the rally at 10:30 a.m." included those of parishes in Burnsville, Savage and Mendota. A later article in a Knights of Columbus publication referred to the participation of five parishes in the Highland Park area; the report stated that the "literature" was passed out at a Lutheran Church before those attending departed via bus for the march, and that there was an "evening requiem" at St. Agnes church.
In November 1975 an article in the St. Cloud Visitor, a diocesan publication, discussed the NCCB Pastoral Plan, and quoted the Bishop of St. Cloud as saying that much of the Pastoral Plan was already being carried out in Central Minnesota, an area "ahead of the nation in the whole pro-life effort." The Bishop was quoted as approving organized political action through citizens' lobbies identified not only with the Catholic Church but with all other interested groups. The editor of the Catholic Bulletin had already told his readers in September 1975 that then was the time to get together with people who really believed that human life was sacred from the moment of conception, and stated that "The caucuses of both major parties are where the action starts. . . ."
The March for Life organized with MCCL to mark the third anniversary of Roe v. Wade was planned to circle the Federal Building in Minneapolis where Senators Humphrey and Mondale had their offices: the St. Cloud Visitor reported that the senators were to be picketed for their inaction on the human life amendment; the Federal Building also contained the office of Representative Frenzel, who had been non-committal, and of Representative Fraser who had opposed the amendment. (The other six Minnesota representatives were said to favor the amendment.) The St. Cloud Visitor article advised that all parish pro-life coordinators would receive informational mailings from MCCL, and they were asked to organize bus rides to the Federal Building. It was reported in the press that about 3,000 gathered at the Federal Building on January 22, "a large percentage" of them school age children, and that afterward the protesters marched to the National Guard Armory and heard pro-life speeches from two state senators and the president of MCCL and were urged by one of the state senators to attend their state caucuses in February in an effort to elect officials who were against abortion.
Before the caucuses, held on February 24, 1976, pro-life workshops were reportedly conducted in two Roman Catholic parishes, and one parish bulletin advised parishioners to support pro-life at the caucuses, saying that "Your vote now could be more important than your vote in November, when your choices are limited." The caucus voting in the precincts and at the legislative district level again showed subcaucuses expressing the opposing views on abortion, and news reports of the caucuses reflect discussions of the issue in the caucuses. In one locality, it was reported, the one-issue anti-abortion candidate for president won the most delegates in the DFL caucuses, that the delegates' votes were equally divided on a resolution favoring a constitutional amendment overruling Roe v. Wade, and that a resolution that welfare funds should not be used for abortion, since it is an elective procedure, was narrowly adopted. After the caucuses the Catholic Bulletin reported that the past president of MCCL asserted that pro-life had done as well as or better in the 1976 DFL caucuses than in 1974 and much better in the 1976 Republican caucuses than in 1974. In the September 14 primary election, the Catholic Bulletin asserted, there was a supporter of the human life amendment in 75% of the legislative districts; the same issue of the Bulletin published the result of the MCCL poll of the candidates' responses to a proposed human life amendment which would have allowed abortion only to save the life of the pregnant woman.
As political activity extended to include the presidential campaign and the platforms of the national parties, the abortion issue was the subject of much newspaper reporting. The Church was roundly accused of meddling in politics and of seeking to impose its views on others, and the churchmen as vigorously defended their right to interrogate candidates, determine their positions on the abortion issue, advise their church members of the candidates' positions, and state the Church's position on the issue, as one among a number of social issues with which the Church was deeply concerned. The churchmen insisted that they did not tell their members how to vote. The differences between the positions of President Ford and Mr. Carter on the issue were made the subject of a flyer that urged a vote for President Ford as a Pro-Life candidate. And candidates were insistently criticized if they failed to make their positions on abortion clear. Candidates were sufficiently alive to the issue to cause some of them to advertise their candidacies in the Catholic Bulletin, and, in some cases, to emphasize their positions on the abortion issue.
The abortion issue has become an important part of the electoral and legislative processes since 1973. The evidence does not, of its nature cannot, demonstrate that the abortion issue has begun to dominate politics. Equally, it cannot be said that the abortion issue has not decided any elections. Practical reason gives assurance that it must have done so, that the forces to produce that result have been often deployed, and that they could not have failed uniformly. The Annex and the trial evidence demonstrate significant phases of the impact and the workings of the abortion issue. The prominence of the issue and its unmeasurable but probable effect on the outcome of elections cannot, however, safely be regarded as an untoward distortion of electoral and legislative considerations. The ratio of abortions to live births in this country, the trend of the ratio, the inevitable problems of adjusting from the earlier prohibitory laws to a new generation of laws that must conform to newly defined constitutional considerations, these are matters that in a federal republic necessarily and properly occupy legislative and voter attention; they are matters of critical social importance, and their implications for religion and religious difference cannot impose a rule of silence. That the issue is seen as alive with considerations of specifically religious morality neither means that legislatures may not deal with the issue nor that candidates may not debate it nor voters divide on it. Single-issue politics, in quiet truth, is no more than a recognition of and action upon the fact that certain issues are seen by a large part of the voting population as having decisive importance; there is no authority that can or should require voters to accept any scale of issue evaluation except their own. The electoral process is itself the regulator; it admits of the effective entrance of the single-issue wedge only by popular vote.
That is not to say that the single-issue voting almost inevitably encouraged by the bitterly controversial abortion issue may not be relevant to some other analysis of the complex whole.
There was little change, and no fundamental, change in the content of the annual debates that led to the funding restriction enactments in 1976 and the three following years. The Annex summarizes the debates in 1976 and 1977, notes the scope of the 1978 debate, and summarizes in principal part the 1979 debates. In addition there were each year unreported meetings of the conference committee; the record has evidence only on the 1977 committee proceedings.
A witness present at every session of the conference committee meetings as a lobbyist for the National Abortion Rights Action League (NARAL), and who spoke to Senator Brooke, the key conferee on the part of the Senate, before, during and after each conference session and kept in close touch with the Senator's staff, testified that Mark Gallagher was also present at every conference session and at significant points during the process of formulating and voting on amendments communicated with subcommittee counsel on the House side who would then communicate with Representative Flood, who headed the House conferees. Mark Gallagher was the lobbyist of the National Committee for a Human Life Amendment, which the witness described as the lobbying arm of the NCCB. (The reports filed by the National Committee for a Human Life Amendment, Inc., under the Federal Regulation of Lobbying Act, 2 U.S.C. § 264, disclosed receipts of $ 279,119.35 in 1977 and expenditures in connection with legislative interests of $ 45,533.29; of the receipts $ 272,747 was in gifts of $ 500 or more from 118 archdioceses and dioceses; the report for 1976 reflected $ 277,414.89 of such gifts from 120 archdioceses and dioceses included in total receipts of $ 290,323.93, and expenditures in connection with legislative interests of $ 36,280.30.)
In the protracted conference committee proceedings thirty-one different versions of funding restriction were brought forward and a thirty-second position was that there should be no such amendment to the appropriations bill. Exhibit 46 supplies both a chronology of floor and committee action, keyed to the proposed amendments, and the texts of the amendments. Intense lobbying efforts were exerted both by the pro-life and pro-choice organizations, and to at least one reporter, as well as to the witness lobbyist of NARAL, Mark Gallagher's influence on the position of the principal conferees on the part of the House was an expression of the NCCB view and was decisive of the position the House conferees took, at least until the very last, when the "leadership" in the House and Senate intervened. The long sequence of amendments marks the effort to reach a compromise of what could not be the subject of a principled compromise result but could only become a register of the point at which the struggle of principle was arrested. During the conference committee proceedings and on the floor the members made and responded to the charge that a religious restriction was being put forward by the pro-life group, and the counter-charge that the pro-choice group was subordinating life values to social convenience. Oddly, the debates were most trying to the Roman Catholic legislators who were unsympathetic to the political approach of NCCB and who did not share the view that the Congress should restrict funding to the abortion required to save the pregnant woman's life: they had to meet attacks from a Catholic press that seemed to insist on strict adherence to the "Hyde" amendment, usually meaning the Hyde-Conte Amendment of 1976, and excluding the rape and incest exception and the severe and long-lasting physical health damage exception. See Annex, pages 764-765, and 124 Cong.Rec. H5360-61 (June 13, 1978: criticizing Mark Gallagher's reporting of Representative Obey's votes; Mr. Obey said, "I am especially appalled when those distortions are engaged in by people who parade as representatives of religion and morality."). The Bishop of Fargo in his bulletin to his clergy of August 29, 1977, indicated that he had written his clergy about their and their parishioners' contacts with Senator Burdick to request him "to support the Hyde Amendment, as he did last year, with no federal funds for abortion "except to save the life of the mother '." The Bulletin continued, "Please continue your efforts until we close off all abortion funds and until we have laws to protect the Unborn Child. I am most grateful for your prayers and persistence. God will bless them, I know." When Senator Burdick reportedly voted for an amendment that included exceptions from the funding restriction for rape and incest victims and for "medically necessary" abortions, the Catholic Action News of the Fargo diocese in a page one article reported that fact, and that the Senator had refused to change his view despite receiving many letters expressing concern over his "present position"; the article quoted the Fargo Pro-Life Director as saying that the only way out of the "dilemma" was to persuade the Senator to change his view by writing or calling him, and by praying and sacrificing "so that all Unborn Children will be permitted to enjoy their right to live." In the Bishop's column in the same issue of the News he appealed to the Senator to "come to the defense of the Unborn Child," and concluded, "I join thousands of North Dakotans in asking Senator Burdick to vote for life and not death, to vote as he did last year on the Hyde Amendment."
Religious motivation and allegiance to religiously perceived principle on the part of many legislators, on both sides of the issue, are easy and necessary inferences from the record and the legislative history. That does not signify that only religious motivation can explain the pro-life position nor does it signify that secular reasoning could not readily arrive at the pro-life principle. What finally influenced the votes of the decisive number of legislators cannot be said with any confidence to be religious motivation or religious conviction or will to make effective a religiously perceived principle of conduct or the influence of institutional religion and religious pleading or fear of reprisal from religiously oriented voters. What can be said is that an organized effort of institutional religion to influence the vote on the enactments in question on religious grounds was made, that it cannot be said that the effort did not influence a decisive number of votes through a combination of religious belief and principle on the part of some with a fear of political reprisal on the part of others, and that the narrow votes in both houses are open to the inference that in one or the other way the religious factor was decisive of the issue for enough legislators to affect the outcome of the voting. On the specific effect of Roman Catholic institutional intervention Representative Hyde said in his April 22, 1978, St. Louis speech:
"It would be amusing (if it weren't so threatening) that the current crusade of the American Civil Liberties Union is to prove in Federal Court that the pro-life movement in America is a religious plot specifically a Catholic plot and hence a violation of the First Amendment. I should like to point out that while several Catholic voices many Catholic voices are heard in Congress on behalf of innocent pre-natal life the leading Senatorial pro-life spokesmen are mostly non-Catholic. I speak of Senator Jesse Helms of North Carolina, Senator Dick Schweiker of Pennsylvania.
"The most prominent Catholics in the Senate the senior senator from Massachusetts and the junior senator from New York do not support our effort to stop the abortion tidal waive. The same sad truth applies to the celebrated Catholic governors of California and New York. In the House we have a Jesuit Priest Congressman who wears his Roman collar while casting votes to continue the use of taxpayers' money to pay for medicaid abortions. To my knowledge, he remains in good standing with his religious superiors. In a nearby state, one Catholic college invited a Senator who was a leader of the pro-abortion forces in Congress to address its graduating class last June. The point of all this I suggest, is that the outrage of abortion isn't all that disturbing to some influential Catholics. That is what Jacques Maritain calls "kneeling to the world.'
"There is one nun based in Chicago who travels the country attacking me for opposing abortion. Occasionally, the newspapers give her coverage which I suggest ought to embarrass every Catholic."
When Representative Hyde voted in 1976 to override President Ford's veto of the 1976 enactment despite his agreement with the veto on the appropriations aspect of the bill (which exceeded the President's budget by $ 4 billion), he said (123 Cong.Rec. H11855):
"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."
The language of the debates, the arguments made, revolve around the pro-life assertion that the fetus is a human life from its beginning, and that, therefore, abortion is either never permissible, or is permissible only in the narrowest circumstances. There was no absence, on either side of the debate, of a sufficient knowledge of human physiology; there were no mistaken notions about the physical nature of the fetus. Indeed, it was the pro-life forces which called on the discoveries of modern science to confirm if not to establish the validity of their position. Nevertheless, the insistence that fetal life has the inviolability accorded by all to the life of born human beings is not genuinely argued; it is adamantly asserted and forms the basis for much essentially religious language. There was, thus, no common ground on which to debate the morality of abortion and to consider in a moral or social view the kind of legislation needed to deal with the altered constitutional position. The pro-life legislators argued from a premise that foreclosed discussion. The pro-choice legislators' every argument was met with the assertion that the fetus was inviolable human life, that there was nothing to discuss. The language of the debates is replete with references to "unborn children"; birth is simply a "change of address"; the 800,000 or 1,000,000 abortions a year are repeatedly equated with the Holocaust; the fetus aborted is an "inconvenient human being," sacrificed to parental convenience; those having abortions are said "to terminate the lives of their posterity."
Yet it would not be difficult to point to considerable pro-life argument that counted on the evident facts that the fetus begins in a union of living human cells and is from nearly the first moment a potential human being, and that its dependent existence, is, for all its dependence, separate life of human quality; and to pro-life argument that the "right to life" the affirmation that only great reasons can justify frustrating the natural growth into being of rational human life is separately significant, and that the reasons advanced for funding abortion are for the most part empty. Others argued that federal neutrality would be represented by not subsidizing abortion, that the right to choose abortion did not imply a right to have an abortion paid for from public funds. Others argued that if there was a public duty it was a duty to provide alternatives to abortion, and so to relieve poor women of the need to resort to the always tragic recourse of abortion.
The repeated use during the debates of "human life" terminology extended at times to referring to the immortal soul of the fetus, to invoking Herod's "slaughter of the innocent," and to emphasizing that the fetus is "defenseless," is "innocent." Much of this language is seen in the Roman Catholic literature already referred to, and it implies humanity in the fetus for only rational beings can be "innocent" in moral terms. The language and references are specifically religious, but, again, much other argument was in the debates that was free of religious reference, whether or not the debaters were motivated by their religious convictions. Other parts of the debates are very insistent that the issue was a moral issue, and that the members had to, or ought to, vote their consciences. The pro-choice debaters, in their reference to the pro-life members' positions, frequently emphasized their respect for the pro-life members' views and, in so doing, manifested an evidently informed belief that the pro-life views were essentially religious. More broadly, the pro-life members at times portrayed abortion as one element of the moral decay that they saw about them in this country and against which they sought to rouse the Congress.
The charge that the pro-life members were seeking to impose their "morality" or their religious views on the Congress, and on poor women, and the counter-charge that the pro-choice members were preparing to require taxpayers to whom abortion was morally abhorrent to subsidize it with their taxes, resulted in frequent avowals by members of their religious affiliations; indeed, members did not hesitate to instance in aid of their arguments their own religious upbringing, their conduct of their own families, and their legal and medical professional experience with abortion. The positions of the various churches on abortion were referred to more than once. The pro-choice members argued that the abortion decision was a matter of individual conscience. And there was a recognition that in the minds of some members their religious beliefs did not really leave them a free vote.
The debates were often bitterly controversial, even inflamed; the members returned to the debate again and again with expressed reluctance but with unabated resolution. The members recognized that the debates were often emotion-charged, and much of the argument, even read in the black and white of the Congressional Record, is deeply felt, personal in tone, and consciously moralistic because the speaker sees no escape from the moral issue or from its importance. The members were plainly aware, were made aware, of the pressures exerted upon them by their sense of their constituencies' views on the issue and of the religious setting in which the views were entertained and expressed.
The intense lobbying on both sides of the issue is reflected in the debates and made clear in the record. The members were fully aware of it, and the not infrequent references to the picketing, the March for Life, and the letters from the constituencies indicate general consciousness that the issue was one that had gained wide popular attention and recognition that their votes would be reported to their constituencies. While the overall impression is that the pro-life lobbying effort was better centralized and more strongly presented than the pro-choice lobbying, the pro-choice lobbying was effectively present and skillful. Remarkably, the issue cut across party lines, so that the lobbying effort had to be more personal than organizational in its address. To an extent the essentially non-partisan cast that the issue assumed seems to have cost the pro-choice advocates a substantial part of the Democratic support that might normally have been expected on a DHEW issue affecting medicaid. Representative Flood's 1976 change from opposition to support of the Hyde amendment is illustrative. See Annex pages 744, 750 and 764.
No measure of the effect of the lobbying is possible. The unanswered question is whether there would have been any abortion legislation if the pro-life group had not used the expedient of presenting the issue as a "rider" on the appropriation bill for 1976. The inference from the fact that the funding restriction has survived only as a rider for four successive years is that the expedient itself is responsible for the fund restrictions, and not any congressional consensus on abortion, or any fruition of effective lobbying effort. It is evident enough that the amendments are legislation on an appropriation bill, and that, although each side has charged the other with hostage taking, the reality has been that the pro-life forces have held the appropriation bills hostage until the amendments were passed. Yet that would not have been possible unless in one of the two bodies there was a consensus for abortion legislation. In a sense the amendments are enactments of the House of Representatives to which the Senate has acceded, with such amendments as it could negotiate, rather than risk the appropriation bills.
As pointed out earlier (supra, pages 646-648), right to life language has found its way into a number of statutes, and, in the case of the pregnancy amendment to Title VII (Equal Employment Opportunities), 42 U.S.C. § 2000e(k), occasioned exchanges as bitter as many of those that occurred during the Hyde amendment debates. In addition to the other enactments referred to above, Public Law 95-444 of October 10, 1978, 92 Stat. 1067, added to the section enumerating the duties and functions of the Civil Rights Commission the provision:
"(f) Nothing in this or any other Act shall be construed as authorizing the Commission, its Advisory Committees, or any person under its supervision or control to appraise, or to study and collect information about, laws and policies of the Federal Government, or any other governmental authority in the United States, with respect to abortion."
The Commission had issued a report in 1975 on The Constitutional Aspects of the Right to Limit Childbearing which argued against legislation aimed at narrowing the effect of Roe v. Wade.
What ultimately emerges from the facts found in parts XII through XIV is that the major religions whose views were presented all regard abortion as presenting religiously framed questions of moral right, moral duty and conscience, that they are in disagreement on the appropriate rules of conduct but in agreement that abortion is a morally grave undertaking in any circumstances, and that their sharpest disagreement concerns the role of civil government. In this period, the record indicates, only the Roman Catholic Church, among the institutional religions, has sought to secure the enactment of legislation that would forbid abortion, has organized educational and lobbying efforts to that end, and acted to mobilize popular support for its legislative goals. The principal effort, to persuade Congress to pass a human life amendment for submission to the states, has failed completely to date. That the efforts of the Roman Catholic clergy and laity have produced the Hyde-Conte amendment of 1976 and its successors cannot be found as a fact, but it is more likely than not that those efforts have been a factor that cannot be eliminated from the chain of causation. In any event the pro-life effort, of which the organized Roman Catholic effort has been the most active component, has made use of the political process, and played a significant part in bringing about congressional legislation on the subject.
1. The Secretary argues that the action should be dismissed because there is no justiciable controversy: the plaintiffs have no standing since the states administer the Title XIX programs and are free to do so whether the federal government reimburses them or not, and here the Congress has simply failed to appropriate funds, a non-action that does not give rise to a cognizable injury; the injury to plaintiffs flows from the failures of the states of their residence to act, and if the states' failures trace to the federal government's failure to appropriate funds, then it is the states, not plaintiffs, who are injured.
It must be doubted that the question remains open; the Supreme Court's remand was to reconsider the decision in light of Maher, Beal, and Poelker ; the terms of the remand rather confirm the existence here of jurisdiction over a justiciable controversy than suggest a re-examination of the point. What was decided earlier (421 F. Supp. 533, 537-539) answers the Secretary's points. In addition the challenged enactments have been held in some cases to modify Title XIX and, in consequence, the obligations of the states under their Title XIX plans. See Preterm, Inc., supra, pages 650-651; Reproductive Health Services v. Walsh, supra, page 651; Zbaraz v. Quern, supra, page 651; Committee to Defend Reproductive Rights v. Myers, supra, page 651. The evidence in the case demonstrates that plaintiffs have been denied abortions in cases in which abortion is medically appropriate because physicians have found themselves unable to certify the cases under the Hyde amendment standards; such certificates, if given, would come under review in DHEW audit of reimbursement data, and they could give rise to fraud investigations of providers if the DHEW saw reason to question a provider's good faith in making the certificate. Moreover, the Hyde amendment has precipitated changes in state law and Title XIX plans that depend for their validity on the validity of the challenged amendments. See pages 648, et seq., supra.
To the extent that the Hyde-Conte Amendment and its successors are held to modify Title XIX they are "legislation," despite the implicit transgression of the rules of parliamentary procedure of House and Senate, Andrus v. Sierra Club, 1979, 442 U.S. 347, 357-361, 99 S. Ct. 2335, 2341-2343, 60 L. Ed. 2d 943; they are legislation directly affecting the rights of members of the plaintiff classes. That the funding restrictions are "legislation" even in the Secretary's view is clear from the circumstance that he adopted informal regulations under the 1976 enactment, and formal regulations under the 1977 enactment; indeed, the latter enactment directed:
"The Secretary shall promptly issue regulations and establish procedures to ensure that the provisions of this section are rigorously enforced."
He did so. See, supra, pages 644, 661, 661-662; Annex, pages 836-837.
2. The Secretary argues the case is not justiciable because a congressional failure to appropriate funds presents only a political question, and that, for that reason, the issue is not one within judicial competence. The point's substance was dealt with in the earlier Memorandum, it must surely have been prominently presented to the Supreme Court, and yet the Court evidently remanded the case for consideration on the merits. See Califano v. McRae, 1977, 433 U.S. 916, 97 S. Ct. 2993, 53 L. Ed. 2d 1103.
No doubt an appropriation act must precede the final act of drawing money from the federal treasury; the argument that the Secretary seeks to press from article 1, section 9, clause 7, however, is without merit. First, in practical reality the language of each of the challenged enactments (a) relates to the "use" of concurrently appropriated funds, and the present actions challenge the validity of the restriction upon the use of appropriated funds; (b) to the extent that the enactments achieved their purpose, they increased the Title XIX medicaid expenditures from the appropriation, as the Congress understood (see Annex, passim ); and (c) the enactments classified abortions, and confirmed the propriety of using appropriated funds for abortions (and certain somewhat similar procedures) in certain of the classes of cases. Second, to repeat, the enactments are legislative in content. See United States v. Dickerson, 1940, 310 U.S. 554, 60 S. Ct. 1034, 84 L. Ed. 1356, the Congress realized it, passed by their own points of order, and consciously legislated on an appropriation bill. See Annex, passim, and, for example, pages 748-749, 772-773, 797. Representative Hyde spoke of the October 12, 1979, enactment as "the only vehicle to stop the killing is an appropriation bill." (Annex p. 838. As the Secretary points out (Defendant's Post Trial Memorandum pp. 22-23 fn.18) the purpose of the enactments was to change the administrative practice of providing funding for legal abortions. Third, the argument that, in order to avoid trenching on the congressional power of appropriation, a constitutional wrong to citizens must be held to be irremediable if the wrong takes the form of a deliberate congressional failure to appropriate funds, is unanswerably self-refuting; it is excluded by the nature of constitutional government. E. g., Califano v. Westcott, 1979, 443 U.S. 76, 99 S. Ct. 2655, 61 L. Ed. 2d 382.
The cases relied on by the Secretary do not support the argument made. Hart v. United States, 1886, 118 U.S. 62, 6 S. Ct. 961, 30 L. Ed. 96, held simply that Congress was competent to decide, as it did, by a joint resolution enacted in 1867, that the United States would not, until Congress otherwise ordered, pay debts it incurred before April 13, 1861, to merchants who thereafter "in any manner sustained, the late rebellion" and that a presidential pardon, granted earlier in 1865, although it relieved the merchant of liabilities to the United States for disloyal acts, would not have authorized payment of the debt even if the 1867 resolution had not explicitly stated, as it did, that no pardon theretofore granted should authorize payment until the resolution was modified or repealed; Hart, simply, said that the United States could decline to waive its immunity to suit as against those who had supported the "rebellion." Knote v. United States, 1877, 95 U.S. 149, 24 L. Ed. 442, similarly, had earlier held that President Johnson's general pardon and amnesty of December 25, 1868, did not raise an implied contract on the part of the United States to pay compensation for property it had condemned, and sold on the ground of Knote's treason, the proceeds of the sale having been paid into the treasury; had the money still been in the registry of the condemnation court, Knote's 1868 pardon would have entitled him to it; to sue in the Court of Claims, however, he would have to show an implied contract to pay or else some act of Congress authorizing payment from the Treasury an appropriation. Austin v. United States, 1894, 155 U.S. 417, 15 S. Ct. 167, 39 L. Ed. 206, also held that it is for Congress to say when and for what causes the United States may be sued in the Court of Claims. Cincinnati Soap Co. v. United States, 1937, 301 U.S. 308, 57 S. Ct. 764, 81 L. Ed. 1122, held that the Revenue Act of 1934, imposing an excise tax on the first domestic processing of coconut oil, could validly provide that the tax collected on coconut oil of Philippine origin should be set aside for and paid over to the Philippine treasury so long as the Philippine government did not subsidize producers of the oil; the court rejected the argument that turning the tax proceeds over to the territorial treasury was not an apt "appropriation" of public funds; Congress had established the territorial government and could assume the tax proceeds would be applied to public purposes. United States v. Dickerson, supra, held that an amendment appended to an appropriation for the Rural Electrification Administration, in the form "no part of any appropriation contained in this or any other Act for the fiscal year . . . shall be available for the payment" of any re-enlistment allowance "notwithstanding . . . §§ 9 and 10" of the Act of June 10, 1922, was not simply a restriction on payment that left the old Section 9 re-enlistment allowance in force but was, and was intended to be, a provision suspending the operation of old Section 9 for one year; the Court met the argument that the plain words used did not suspend Section 9 by saying (310 U.S. at 562-563, 60 S. Ct. at 1038):
"It is sufficient answer to deny that such words when used in an appropriation bill are words of art or have a settled meaning."
The actions do not seek to require the Secretary to ignore 31 U.S.C. § 628 by applying Title XIX appropriations to any object other than those for which they were made, that is, reimbursement under Title XIX plans of the necessary medical expenses of poor women, free of invalid limitations. Cf. Califano v. Westcott, supra. Reeside v. Walker, 1850, 52 U.S. (11 How.) 272, 13 L. Ed. 693, does not support the argument made from the nature of the Secretary's duty with respect to appropriations; the United States there sued a postal contractor on his account, he counterclaimed, and a jury found that he owed nothing but that the government owed him $ 188,000; although under the local practice of the time no judgment award had been made against the United States, the defendant sought an order directing the Secretary of the Treasury to enter the debt on his accounts and to pay it; the Court pointed out that the case was not one for mandamus, and went on (at page 290):
"It is well settled, too, that no action of any kind can be sustained against the government itself, for any supposed debt, unless by its own consent, under some special statute allowing it, which is not pretended to exist here. (Citation omitted.)
"The sovereignty of the government not only protects it against suits directly, but against judgments even for cost, when it fails in prosecutions."
The Secretary appears not to recognize that there was no difficulty in giving full and fair effect to the preliminary injunction issued at an early stage in this cause, and in effect until August 1977. See Califano v. Westcott, supra, 99 S. Ct. at 2659-60 (form of order).
Lovett v. United States, 1946, 328 U.S. 303, 66 S. Ct. 1073, 90 L. Ed. 1252, is no less in point because it was, of course, a very easy case; the addition to the restriction on the use of the appropriated funds to pay compensation to plaintiffs of the derisory "unless . . . such person has been appointed by the President, by and with the advice and consent of the Senate," or has served as a juror or in the armed forces, and the background of the enactment did not make it anything more or less than a direct and clear prohibition of the use of appropriated funds to pay the plaintiffs' compensation after November 15, 1943; on the Secretary's theory it was the paradigmatic, double underlined failure to appropriate funds. That it was simply that did not protect it from judicial scrutiny, nor result in denying the plaintiffs a remedy: faced with the argument founded on the congressional control of appropriations the Court promptly rejected it, holding that the purpose of the statute was not merely to cut off plaintiffs' compensation through regular disbursing channels but permanently to bar them from government service, and that the issue of whether it was constitutional was justiciable. So here, it is the invalidity of the restriction, invalidity allegedly flowing from the operative consequences of the restriction for the people whose interests it affects, that is the gist of plaintiffs' claims and the basis of justiciability.
The claims put forward by plaintiffs are peculiarly for courts to determine. What the Supreme Court said concerning legislative competence to deal with the policy issues affecting the funding of non-therapeutic abortions (Beal, 432 U.S. at 448, fn.15, 97 S. Ct. at 2373, fn.15, Maher, 432 U.S. at 479-480, 97 S. Ct. at 2385-2386) did not signify that legislative bodies had the power to determine the validity of their own laws by framing them as funding laws. For the Secretary to argue that "there are no judicially discoverable and manageable standards that the court can apply for determining what political balance should have been struck between policy considerations, conflicting interests and the other myriad factors to be taken into account" (Defendant's Post Trial Memorandum, p. 31), may be correct and may suggest that, therefore, there can be no legislative standards in this field; the inquiry here is not what is wise policy, but whether the Congress has or has not adopted a policy which, wise or unwise, the law forbids. The Secretary's argument ignores the lesson taught by Roe v. Wade, Doe v. Bolton, the Maher, Beal and Poelker cases, and not less than six other cases in which the Supreme Court has dealt with the abortion issue in one or another of its aspects. It is the inescapable responsibility of the judiciary, state and federal, to determine whether or not legislation transgresses the constitutional limits on legislation, and to interpret legislation. That is intrinsic to the separation of powers.
3. The Secretary argues that the actions should be dismissed because the states are indispensably necessary parties and have not been joined in the action. The contention is without merit, as a host of cases, most recently Califano v. Wescott, supra, demonstrates. The case is concerned with the meaning and validity of the annual funding restrictions as they affect the poor women and the medicaid providers concerned with legal abortion. The plaintiffs' evident and reasonable expectation is that, if what they see as the illegal incubus of the Hyde-Conte amendment and its successors ought in law to be and is removed, the medicaid responsibilities of the states under Title XIX will be appropriately discharged.
A glance at the Annex will show that pro-life advocates in Congress were of the view that Maher, Beal and Poelker settled the constitutional questions involved in the Hyde-Conte type of amendment, and that the pro-choice advocates argued that the constitutional question, if settled by Maher, Beal and Poelker, did not decide the policy issues that were before the Congress. The basic questions in the case concern issues cognate to those in Maher, Beal and Poelker, and require review of those cases.
The series of enactments involved is directed to reducing the number of abortions performed in the United States by excluding from medicaid coverage all abortions except those described in the enactments. As nearly as can be determined the effect of the 1977 enactment for the period February 14, 1978, to December 31, 1978, was to reduce the rate of medicaid funded abortions by over 95%. The legislative history establishes that the riders were not enacted to encourage normal childbirth but to end abortion, so far as that could be done by limiting medicaid coverage, because it was a moral evil. The national policy, to the extent formulated, encourages family planning, 42 U.S.C. §§ 300, et seq., 300a-21, et seq., 1396d(a)(4), excludes use of abortion as a family planning method, 42 U.S.C. § 300a-6 and establishes safeguards against involving health service personnel and recipients of family planning assistance in violation of their religious beliefs, 42 U.S.C. §§ 300a-7, 300a-8. The legislative history demonstrates conscious rejection by the Congress of any provision for therapeutic abortion as a procedure to deal with the array of the principal maternal and fetal health considerations presented during the debates.
1. Title XIX, the structural provisions of which are outlined above (pages 639-641), is intended to provide medical care for the needy; the state plans of medical assistance must include reasonable standards for determining eligibility need and the extent of medical assistance necessary medical care. 42 U.S.C. § 1396a(17). Those standards must be consistent with the objectives of Title XIX, the first-stated purpose of which is to appropriate sufficient funds each year to enable each state, as far as practicable under the conditions in each state, "to furnish . . . medical assistance" to AFDC families and certain others "whose income and resources are insufficient to meet the costs of necessary medical services." 42 U.S.C. §§ 1396, 1396a(a) (10)(B), (C)(i), (13), 1396d(a). The state plan must provide the safeguards needed to assure that eligibility for care and services will be determined and such care and services provided in a manner consistent with simplicity of administration "and the best interests of the recipients." 42 U.S.C. § 1396a(a)(19). Certainly, as Preterm observed, Section 1396 identifies the needy, but it also identifies the relevant need "the costs of necessary medical services" which it is a primary object of the act to fund. There are, indeed, categories of medical service that need not be covered Section 1396d(a) (1)-(17), read with Section 1396a(a)(13)(B), (C)) is explicit. But in the case of AFDC recipients the state plan, under 42 C.F.R. § 440.210, must specify that at a minimum categorically needy recipients are provided the services as specified in §§ 440.10-440.50. These include "inpatient hospital services" that are ordinarily furnished in a hospital for the care and treatment of an inpatient under the direction of a physician and that are furnished in an institution that is maintained primarily for the care and treatment of patients with disorders other than tuberculosis or mental diseases, is a licensed institution, meets medicare requirements and has a utilization review plan applicable to medicaid patients. 42 C.F.R. § 440.10. The mandatory physician's services whether furnished in office, home, hospital or elsewhere means services provided within the scope of practice of medicine or osteopathy as defined by state law by or under the personal supervision of an individual licensed to practice medicine or osteopathy. Under 42 C.F.R. § 440.230(b) and (c)(1) each service must be sufficient in amount, duration and scope reasonably to achieve its purpose, and the medicaid agency may not deny or reduce the amount, duration or scope of a service required to be provided for the categorically needy or the medically needy "solely because of the diagnosis, type of illness, or condition." Medical and hospital service and care are specific to human health needs. Prenatal and obstetrical care are obvious kinds of customary medical care provided under medicaid, and abortions were covered under medicaid until the Hyde-Conte amendment became effective. Apart from the effect of that amendment, the cases have with one exception concluded that state plans must include provision for "medically necessary" abortions. See supra pages 649-650, 651, 651-652. No reason can be perceived for excluding therapeutic abortions from medicaid coverage after Roe v. Wade and Doe v. Bolton, even if it were thought that the first and second trimester right of the pregnant woman included choice of abortion for reasons, like those enumerated in Roe v. Wade, 410 U.S. at 153, 93 S. Ct. at 726 (quoted supra page 662), and in Doe v. Bolton, 410 U.S. at 192, 93 S. Ct. at 747 (quoted supra page 662), not all of which were immediately within "the scope of practice of medicine," or called for inpatient hospital services ordinarily furnished in a hospital for the care and treatment of an inpatient. But in any case, the "Hyde amendments" of 1977, 1978 and 1979 make clear the congressional recognition that abortion services are covered medical services; the Congress was concerned only with drastically limiting the circumstances in which the abortions would be within medicaid.
Plaintiffs argue that the only legal effect of the "Hyde amendments" is to withhold federal matching funds for certain classes of abortions without relieving the states of the duty to include in their plans provision for all medically necessary health care, including provision for medically necessary abortions. However, the analysis in Preterm, Inc. v. Dukakis, discussed, supra, pages 650-651, is persuasive that the 1977 amendment and its 1978 reenactment must be read as amending Title XIX substantively (591 F.2d at 128-133), the court in Zbaraz v. Quern agreed (596 F.2d at 199 to 202), and the amendments have been so administered. Concern that such a continuing duty would be imposed on the states has induced Representative Bauman to introduce an amendment on the subject to the bill that would add a new section to Title XIX (Child Health Assurance Program); Mr. Bauman's amendment would add a Section 1914 to Title XIX (to follow 42 U.S.C. § 1396k), providing that none of the funds "authorized to be appropriated" under Title XIX should be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term: "Provided however, That nothing in this title shall be construed to require any State funds to be used to pay for an abortion." 125 Cong.Rec. (96th Cong., 1st Sess.) H 11770 (December 11, 1979). The amendment was adopted (H 11776).
2. Plaintiffs contend that the Congress could not validly discontinue medicaid coverage of those medically necessary abortions that are not included in the classes of cases for which Congress has continued medicaid coverage, that is, where the pregnancy would endanger the pregnant woman's life if the fetus were carried to term, where severe and long-lasting physical health damage would result if the fetus were carried to term, in the cases of victims of rape and incest, in the cases of ectopic pregnancies, and to prevent implantation of the fertilized ovum. The questions related to the validity of the enactments must be analyzed in terms of accepting that, as the Court said in Maher v. Roe, 432 U.S. at 475, 97 S. Ct. at 2383, that case marks no retreat from Roe v. Wade, or the cases applying it. Roe v. Wade found that a pregnant woman's right to decide whether or not to terminate her pregnancy is a right founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action or in the Ninth Amendment's reservation of rights to the people; it is a "fundamental right," a "constitutionally protected liberty interest," Maher v. Roe, 432 U.S. at 474, 476, 97 S. Ct. at 2384. Roe v. Wade was not limited to ending criminal liability for abortions before viability. The right it defined may not be subjected to a requirement of spousal consent, or, if the pregnant woman is a minor, to a requirement of parental consent, Planned Parenthood of Central Missouri v. Danforth, 1976, 428 U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788, and, while a requirement affecting legal abortion is not unconstitutional unless it unduly burdens the right to seek an abortion, Bellotti v. Baird, 1976, 428 U.S. 132, 147, 96 S. Ct. 2857, 2866, 49 L. Ed. 2d 844; Maher v. Roe, 432 U.S. at 473, 97 S. Ct. at 2382, if such a burden is imposed upon access to legal abortion services, the statute imposing it is invalid. Bellotti v. Baird, 1979, 443 U.S. 622, 642, 655, 99 S. Ct. 3035, 3048, 3054, 61 L. Ed. 2d 797. A pregnant woman does not, however, have an absolute constitutional right to an abortion on her demand. Doe v. Bolton, 410 U.S. at 189, 93 S. Ct. at 746, and (concurring opinion) 410 U.S. at 208, 93 S. Ct. at 755.
(a) Beal v. Doe, supra, reached the Supreme Court as a case in which respondents contended that Title XIX required Pennsylvania's medicaid program to cover "nontherapeutic abortions." The state's plan did cover those abortions that physicians certified as "medically necessary," a standard met by documentary evidence that "continuance of the pregnancy may threaten the health of the mother," or that "an infant may be born with incapacitating physical deformity or mental deficiency," or that continuance of a pregnancy resulting from proved statutory or forcible rape or incest "may constitute a threat to the mental or physical health of a patient." The Court held that Title XIX did not require the state's medicaid program to find all abortions permissible under state law, noting, however, that "serious statutory questions might be presented if a state Medicaid plan excluded necessary medical treatment from its coverage." The Court stated that the Court had been advised during oral argument that the state's definition of medical necessity was broad enough to encompass the factors in the Bolton definition (410 U.S. at 192, 93 S. Ct. at 747), quoted supra page 662. To the argument that exclusion of nontherapeutic abortions from coverage was unreasonable on health and economic grounds the Court answered that the exclusion was not unreasonable, given the state's valid and important interest in encouraging normal childbirth in protecting the potentiality of human life; that interest of the state alone does not justify "unduly burdensome state interference with the woman's constitutionally protected privacy interest" until approximately the third trimester. The Court made clear that the state, although not required to do so, was free to cover nontherapeutic abortions. The Court left open the validity under Title XIX of the requirement that two additional physicians concur in the attending physician's certificate of medical necessity.
Maher v. Roe, supra, considered "whether the Constitution requires a participating State to pay for nontherapeutic abortions when it pays for childbirth." Connecticut's Welfare Department regulations limited funding to first trimester abortions that in the attending physician's opinion were "medically necessary." That term was defined as including "psychiatric necessity." The provider was required to obtain authorization beforehand by submitting, inter alia, the physician's certificate of medical necessity. The plaintiffs had been unable to obtain such certificates. It was held below that Title XIX allowed but did not require state funding of nontherapeutic abortions and that, although there was no constitutional right to a state-financed abortion, the equal protection clause forbade the exclusion of nontherapeutic abortions from a program that generally subsidized the expenses of pregnancy and childbirth, and that, having no justification in any state interest, the exclusion infringed upon a fundamental interest of the plaintiffs. The Court observed that although the states are not constitutionally obligated to pay pregnancy related or any other medical expenses of indigents they are subject to constitutional limitations on the manner of dispensing any medical benefits that they undertake to provide in alleviation of some of the hardships of poverty. The challenge to Connecticut's funding childbirth but not nontherapeutic abortion, the Court said, presents an equal protection argument that required the Court to consider whether the legislation either operated to disadvantage a suspect class, or impinged upon a fundamental right explicitly or implicitly protected by the Constitution (both of which alternatives evoke strict judicial scrutiny); and if neither alternative applies, the legislation must be examined to determine whether it rationally furthers some legitimate, articulated state purpose, and therefore does not invidiously discriminate. No suspect class was found, for financial need alone does not identify a class, and, in a sense, every denial of welfare to an indigent creates a wealth classification. Roe v. Wade, the Court said, "protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy," but it implies no limitation on the state's authority to make a value judgment favoring childbirth over abortion. Since Connecticut has added no disadvantage to the lot of the indigent woman desiring an abortion by making childbirth the more attractive alternative, no impingement on the fundamental right is present. That the state may not constitutionally prohibit or substantially restrict an activity does not imply that it may not encourage an alternative activity childbirth. Applying the less demanding test of rationality, the Court found that the state's unquestionable " "strong and legitimate interest in encouraging normal childbirth' " is rationally furthered by its assuming the medical costs of childbirth; the state's interest "in encouraging normal childbirth" exceeds the minimal level of furnishing a " "reasonable basis' " for the classification. The Court also sustained the requirement of obtaining prior authorization for the procedure, based on a showing of medical necessity, on the ground that the procedure terminated a potential human life, and so was distinguishable from other medical procedures for which no advance authorization was required.
Poelker v. Doe, supra, considered the validity of an executive directive prohibiting the performance of abortions in two St. Louis municipal hospitals except when there was a threat of grave physiological injury or death to the pregnant woman. Agreeing that the constitutional question presented by the plaintiff, refused a nontherapeutic abortion at one of the municipal hospitals, was identical in principle with that presented by a state's refusal to provide medicaid benefits for abortions while providing them for childbirth, the Court found no constitutional violation in the city's election, as a policy choice, to provide publicly financed hospital services for childbirth without providing corresponding services for nontherapeutic abortion. The Court said (432 U.S. at 521, 97 S. Ct. at 2392):
"We merely hold, for the reasons stated in Maher, that the Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth as St. Louis has done." (Footnote omitted.)
All three decisions considered the cases as presenting claims that nontherapeutic abortions must be funded if pregnancy and childbirth care are funded. In each case the Court emphasized the reasonableness and constitutionality of the state's and city's action "in encouraging normal childbirth" (Beal, 432 U.S. at 446, 97 S. Ct. at 2371, Maher at 478, 479, 97 S. Ct. at 2385), and in "expressing a preference for normal childbirth." Beal treats nontherapeutic abortion as an "unnecessary " medical service in the perspective of Title XIX (id. at 445, 97 S. Ct. at 2371), that is, a medical service that becomes "needed" only after and if the election to abort has been made, and is not "necessary" if normal childbirth is chosen. The Court is explicit that the state's interest does not until the third trimester become sufficiently compelling "to justify unduly burdensome state interference with the woman's constitutionally protected privacy interest" (Beal, id. at 446, 97 S. Ct. at 2371), and that the pregnant woman is constitutionally protected "from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy" (Maher, id. at 474, 97 S. Ct. at 2382).
The ultimate common holding of the three cases, then, is (a) that funding normal childbirth does not unduly burden women's constitutionally protected fundamental right to choose whether or not to terminate a pregnancy, and (b) that nontherapeutic abortion is an unnecessary medical service that may be withheld, notwithstanding that childbirth is funded, because it is reasonable to encourage the birth of the potential life in which the state has an interest. The Court does not say that to fund childbirth and deny funding for nontherapeutic abortion does not influence the pregnant woman's choice between the alternatives. The decisions assume that the state action does influence the decision, and that, as between normal childbirth and nontherapeutic abortion, the state need not be neutral, and hold that the state has not interfered with, or burdened, or put obstacles in the way of the protected decision to seek a nontherapeutic abortion by failing to fund such abortions, nor discriminate against the woman seeking an abortion by funding childbirth.
The trio of cases signalizes the Court's conclusion that the state has no interest in encouraging or facilitating nontherapeutic abortions by providing unnecessary medical services.
(b) Parts IV through X above (pages 661-689) set out the background of the medical management of pregnancies, the standards by which the medical profession guides its practices, and the very wide gap between the circumstances in which the medical profession finds abortion a "medically necessary" procedure and the few types of cases in which the profession could certify under the successive "Hyde amendment" standards (see particularly pages 671-672 supra ); Part IX shows the very special medical risks and disabilities of the younger teenage woman who becomes pregnant; Part VI emphasizes the medical relevancy of poverty itself, and of the unwantedness of the pregnancy, and Part VII, the problems connecting pregnancy and mental health; and Part X shows the special factors affecting victims of rape and incest. These Parts are summarized in part in Part XI at pages 689-690. That abortion has become a dimension of the country's social structure and legal order is evident from Parts I and III, pages 634 to 639, 648 to 653 and 657 to 659.
The evidence requires the finding that by the professional standards of modern medicine adequate and timely treatment of pregnancy includes recourse to abortion, and particularly abortion in the early weeks of gestation when the risk of mortality is lowest, and is well below maternal mortality in childbirth; that the abortion procedure is a means of safeguarding the health of the pregnant woman from exposure to serious impairment, and to avert unacceptably high risks of death; and that the "life endangerment" and "severe and long-lasting physical health damage" standards do not include but exclude the greater part of the cases in which the profession would recommend abortion as medically necessary procedure to safeguard the pregnant woman's health. The evidence requires the finding that the endangerment of the mental health of the pregnant woman, due to or aggravated by pregnancy, can reach a degree that in professional medical judgment makes abortion medically necessary in the sense of Doe v. Bolton, supra, 410 U.S. at 192, 93 S. Ct. at 747. The evidence justifies the conclusion that pregnancy among younger teenagers, and the constellation of special health problems pregnancy involves for them, make abortion medically necessary over a broader range of instances than in the case of women in their twenties. The evidence warrants the finding that poverty entrains enhanced health risks, nutritional deficiencies, and limitations on access to health care that make the incidence of medically necessary abortion markedly higher among the poor than among those who have the means to maintain well-nourished life and regular health care. Unwantedness itself is a factor deranging the management of pregnancy, and aggravating the risks from otherwise controllable complications. The evidence shows further that the professional standards of modern medicine accept that grave fetal defect, determined early in pregnancy with a high degree of probability, may make abortion medically necessary in the judgment of a large part of the medical profession.
A substantial part of the medical profession, the evidence makes clear, will not, in principle, perform abortions, other than indirect abortions, and, possibly in cases of crisis intervention by abortion where the pregnant woman's life is threatened. The evidence does not afford a basis for a conclusion that, if the point of principle that influences their practice could be eliminated from the medical evaluation, physicians in this group would disagree that from a therapeutic viewpoint abortion would be medically necessary to preserve the pregnant woman's health in significant classes of cases falling outside the classes delineated in the successive "Hyde amendments."
(c) The medicaid legislation expresses the concern of nation and state with health, and with providing health care for the categorically needy and the medically needy. Roe v. Wade and Doe v. Bolton defined the pregnant woman's fundamental right of decision largely in terms of the medically warranted abortion as a protected alternative to childbirth. Colautti v. Franklin, 1979, 439 U.S. 379, 400, 99 S. Ct. 675, 688, 58 L. Ed. 2d 596, reflects, it would seem, that primacy of concern is for the woman's life and health. It is the state's concern for the health of the pregnant woman, not its interest in bringing the fetus to birth, that justifies state regulation of abortion procedure in the second trimester "in ways that are reasonably related to maternal health" (Roe v. Wade, supra, 410 U.S. at 164, 93 S. Ct. at 732), and concern for the woman's health justifies the state in prosecuting a non-physician who performed an abortion in the first trimester. Connecticut v. Menillo, 1975, 423 U.S. 9, 11, 96 S. Ct. 170, 171, 46 L. Ed. 2d 152. On the other hand, Beal, Maher and Poelker read as cases in which there was no health care need for an abortion.
The "Hyde amendments" would deny necessary medical care to indigent women in specific need of such care because of medical conditions affecting their pregnancy, where the condition, in their attending physicians' judgments, calls for abortion as the appropriate and medically necessary procedure. At that point the impact of the "Hyde amendments" is not to influence the pregnant woman toward normal childbirth, for that is not medically possible, but to frustrate her making, in consultation with her physician and for medical reasons, that "abortion decision . . . that must be left to the medical judgment of the pregnant woman's attending physician" in the first trimester, and which, in the second trimester, can be affected only in ways reasonably related to maternal health. Roe v. Wade, supra, 410 U.S. at 164, 93 S. Ct. at 732.
Medicaid is directly involved. The concern of medicaid is with the problem pregnancy that, as such, requires medical treatment, and, as that treatment passes the diagnostic stage, has resulted in an "appropriate medical judgment, for the preservation of the life or health of the mother," Roe v. Wade, 410 U.S. at 165, 93 S. Ct. at 732, that abortion is medically necessary. To overrule the medical judgment, central as medical judgment is to the entire medicaid system, and withdraw medical care at that point because the medically recommended course prefers the health of the pregnant woman over the fetal life is an unduly burdensome interference with the pregnant woman's freedom to decide to terminate her pregnancy when appropriate concern for her health makes that course medically necessary. To deny the appropriate medical assistance to the patient in need of medical assistance and remit her to a less appropriate medical course and abandonment of her fundamental right of choice, or else to resignation of medicaid benefits, is not called for by Maher v. Roe and is forbidden by the principle it reaffirms.
The medicaid eligible woman who is pregnant has a statutory entitlement to medical assistance, and, if her pregnancy becomes a problem pregnancy, her entitlement extends to receiving the medical treatment appropriate to her medical problem, the treatment which is recommended by her attending physician's judgment. Cf. Doe v. Bolton, supra, 410 U.S. at 198-200, 93 S. Ct. at 750-751 (two-doctor concurrence); United States v. Vuitch, 1971, 402 U.S. 62, 70-71, 91 S. Ct. 1294, 1298-99, 28 L. Ed. 2d 601 (criminal responsibility). Since the recommended abortion is medically necessary to safeguard the pregnant woman's health, and her basic statutory entitlement is to appropriate medical assistance, the disentitlement to medicaid assistance impinges directly on the woman's right to decide, in consultation with her physician and in reliance on his judgment, to terminate her pregnancy in order to preserve her health. The interests of the state and the federal government for in medicaid their interests are united their interests in the fetus and in preserving it are not sufficient, weighed in the balance with the woman's threatened health, to justify withdrawing medical assistance unless the woman consents to assume the risks to her health and essays to carry the fetus to term. That is plainly the case in the first and second trimesters, and scarcely less so in the extremely rare third trimester case. It is not necessary to go farther and consider whether the evidently dominant purpose of the enactments, as disclosed in the debates, is so directed to preventing exercise of the woman's constitutional right, and so clearly seeks to prefer the life of the fetus over the health of the pregnant woman, neither of which would be a licit purpose, that the statutory purpose of itself, precludes reliance on any other legitimizing legislative interest that might exist. But, as noted earlier, there is no federal policy of encouraging unwanted childbirth among the poor; to the extent that there is a settled federal policy, it is to promote family planning. See 42 U.S.C. §§ 300, et seq., 300a-21, et seq., 602(a)(15). The relevance of the woman's poverty is that medicaid is her health care reliance, and when she is excluded from receiving under medicaid the therapeutic abortion that is to her a medical necessity, there can be no assurance that she will receive the medically necessary abortion elsewhere. She is effectively denied assurance of a basic necessity of life (Memorial Hospital v. Maricopa, 1974, 415 U.S. 250, 259, 94 S. Ct. 1076, 1082, 39 L. Ed. 2d 306) because of her medically advised decision. The evidence supports the inference that an undetermined but substantial percentage of women denied medically necessary abortions under medicaid carry the fetuses to term, or obtain illegal abortions with some incidence of serious complications if not death, or, after a delay that increases their mortality risk measurably, do obtain legal abortions. Without justification in a countervailing legislative interest, the women's exercise of the right to a medically necessary service is denied them.
(d) The enactments clearly operate to the disadvantage of one suspect class, that is to the disadvantage of the statutory class of adolescents at a high risk of pregnancy defined in 42 U.S.C. § 300a-21(a), (quoted in footnote 74), and particularly those seventeen and under (Section 300a-21(b)(1)). See pages 680-686 supra. The congressional findings of fact describe in relentlessly concrete terms, particularly in findings (3) and (5), just such medical conditions, here, as they affect teenagers, as formed the central justifying perception in Roe v. Wade and Doe v. Bolton, quoted above at page 662 (410 U.S. at 153, 164-165, and 192, 93 S. Ct. at 726, 732-733, and 747). Pregnant teenagers, particularly the younger teenagers, are a disadvantaged class, recognized as such by Congress; they are disadvantaged by the convergence in their unwanted pregnancies of physical and psychological immaturity, poverty and dependence, and a high risk of serious pregnancy-connected physical and psychological complications that threaten permanently to undermine the health of the pregnant teenagers and their fetuses. The Adolescent Pregnancies title defines "core services" as including "primary and preventive health services including pre- and post-natal care"; the Secretary may require grant applications to include assurances that the pregnant adolescent will be informed of the availability of counseling "on all options regarding her pregnancy," and he is to give priority to applicants who will (inter alia ) utilize existing programs and facilities for "ongoing pregnancy prevention and pregnancy-related services." 42 U.S.C. §§ 300a-22(4)(C), 300a-25(a)(4), 300a-26(a)(22). Yet the "Hyde amendments" enacted in 1978 and 1979 (and 42 U.S.C. § 300a-28) exclude medically necessary abortion from the primary health care services provided under Title XIX and under the Adolescent Pregnancies title. No legislative interest outweighing the interest in the teenagers' health can be advanced to justify the discriminatory denial of necessary medical care.
(e) The "Hyde amendments" cannot be sustained under the less demanding test of rationality that applies in the absence of suspect classification. Preterm, Inc. v. Dukakis implies as much in its conclusion that limiting funding to those abortions necessary to prevent the death of the mother was a proscribed discrimination violative of the purposes of Title XIX: to single out one medical condition, complicated pregnancy, and restrict treatment of it to life or death situations, the court held, crossed the line between permissible discrimination based on degree of need and entered into forbidden discrimination based on medical condition, because one cannot discern any rational social objective that it would serve (591 F.2d at 126). Noting that the narrow categories of the Hyde amendment enacted in 1977 "would certainly not encompass all situations in which a physician, exercising his professional judgment, could certify that an abortion was medically necessary" (id. at 131 n. 8), the court held that the limitation of abortion funding to cases where otherwise severe and long-lasting "physical" health damage would result impliedly excluded equally grave mental damage, and set up a presumption that physical health damage is always more serious and more important to prevent than mental health damage, a presumption that was nothing less than absurd and not "reasonable" (id. at 132). And, after the remand to the district court in Zbaraz v. Quern (supra, page 651) the court held the Hyde amendment invalid, 469 F. Supp. 1212, 1219-22, because the state's interest in fetal life, though growing as gestation advanced toward childbirth, could not be advanced at the cost of increased maternal morbidity and mortality among indigent pregnant women.
The Court in Maher observed that the distinction drawn by the regulation there under review was to be tested by seeing whether it was rationally related to a constitutionally permissible purpose. The purposes of the enactments in question that would be inferred from consideration of the debates in Congress would not be constitutionally permissible: the dominant purpose inferable was to prevent exercise of the right to decide to terminate pregnancy, to prevent the funds of taxpayers who disapproved of abortion on moral grounds from being used to finance abortions that were abhorrent to them. No purpose of encouraging normal childbirth was discussed, and no such demographic consideration as the Court suggested in Maher, 432 U.S. at 478 n.11, 97 S. Ct. at 2385 n.11, entered into the debates except in the form of the argument suggesting that the pro-choice position on medicaid had in it elements of an unthinkable "final solution" for poverty. If a purpose emerges in result, it is the purpose to prefer the life of the fetus over the health interests of the pregnant woman except in the life-for-life case reflected in the life endangerment exception; the hard-won compromise that added the clause covering severe and long-lasting physical health damage was illusory in result, and the debates show that it emerged only as a vestige of what commenced as a proposed exception for "medically necessary" abortions. See Annex pages 794-798.
Maher is clear that if the Congress had forbidden funding of nontherapeutic abortions there could be no further debate. But in light of all the abortion cases in the Supreme Court the legislative interest that must be found is one that will, in terms of public interest values, outweigh the pregnant woman's health interest, and the legislative interest in fetal life, at very least during the period before viability, is not invested with an interest of that quality. Planned Parenthood v. Danforth and Colautti v. Franklin, in dealing with saline amniocentesis and with abortion techniques most favorable for the fetus to be aborted alive, appear to imply that any regulation of abortion must not preclude the physician from using the methods of medical management that preserve the woman's health and life as against fetal life when the interests conflict.
The statutory purpose of medicaid is to provide medical assistance to the needy, and, considered as an amendment to medicaid coverage, the enactments in question fail the rationality test, recently applied, in an emotionally neutral area, in the leading case of White v. Beal, 3rd Cir. 1977, 555 F.2d 1146, 1151, interpreting Title XIX. The need for health care during pregnancy is basic, and, in the case of the complicated or problem pregnancy, it is indispensable. To exclude from the physicians' battery of procedures legal abortion when it is medically necessary is repugnant to the scheme of the entire medicaid program. The legislature, as Maher makes clear, need not be neutral between normal childbirth and nontherapeutic abortion, but the rationality test requires that it be neutral among medically necessary procedures, certainly in the absence of any special circumstance relevant to the legislative aims of the health care program. Restricting abortion, alone of all medical procedures, to the life endangerment circumstance has no support in any medical evaluation of medical conditions and the medical procedures appropriate to the medical conditions; the physicians who reject all direct abortion do so on grounds other than a medical evaluation of condition and procedure. Life endangerment is, simply, not the test for surgical intervention generally and may not rationally be made so in the one medical context when no legitimizing legislative purpose is served by such a restriction.
A special circumstance reinforcing the conclusion arises from the medical relevancy of poverty itself as a factor increasing the risks of pregnancy complications for the health of poor women; they are the class least able to sustain withdrawal of the procedure from the physician's battery of procedures. The indigent younger teenager who becomes pregnant represents the extreme of need, the class for whom withdrawal of the procedure would, from the nature of their physical and emotional plight, be most damaging, and most frequently damaging.
The exclusion from the severe and long-lasting physical health damage clause of any reference to mental health damage is not reasonable, and it has no support in permissible legislative purpose. Fear of fraud on medicaid, of feigned psychiatric problems, can hardly justify excluding a whole field of health damage from appropriate treatment. The evidence discloses the problems that pre-existing and supervening mental ill-health connected with pregnancy can cause, both in themselves and by complicating the task of medication, as well as through the supervention, particularly among younger teenagers, of suicidal ideation connected with pregnancy.
The special case of grave fetal defect, wholly excluded by the enactments in question, appears to impose a restriction that the profession did not apply even before the changes in abortion law of recent times.
The strangeness to medical thinking of "life endangerment" as the factor decisive of the use of a medical procedure is shown by the medical evidence, and is an added element relevant to the application of the rationality test. The meagre statistics on abortion since the Hyde amendment bear out the view emerging from the medical evidence: the life endangerment test is so uncertain of meaning in terms of medical content that it operates to restrict the use of abortion procedure in medicaid to the narrowest classes of cases, to crisis intervention. It seems to function to exclude many more cases than can be supposed to have been intended for exclusion because of the physicians' inability to divine what medical standards it implies.
It must be concluded that the enactments in question are invalid under the Fifth Amendment.
Plaintiffs' First Amendment argument is that the generating premise of the pro-life position is the proposition that from the moment of conception the conceptus is a human being, human life, that that belief is derived from religious conviction, that the enactments under review translate that belief into law, and that the secular justification for and support of the enactments, to the extent of its existence, is not legally significant weighed against the dominant religious origin, purpose and institutional support for the enactments. The evidentiary background related to the argument is summarized above, pages 714-715, 723-727.
The argument from the establishment clause must be rejected. That the enactments reflect, if imperfectly, one religious view, if it were true, would not be decisive. The enactments deal with human conduct, and that conduct in an area related to human life. They reflect a traditionalist view more accurately than any religious one, a view that was reflected in most state statutes of a generation ago. The purpose of the "Hyde amendments," if their purpose could be realized, would be the prevention of abortions, not an identifiably religious purpose, or one that became religious because, after 1973, the most vigorous spokesmen for it put their case in religious terms, and grounded them in religious reasons. The underlying difficulty with the plaintiffs' argument that there is here no clearly secular legislative purpose (within Committee for Public Education v. Nyquist, supra ) is that the argument treats Roe v. Wade as removing the issue from the field of secular action, and as forbidding reference to a purpose conceptually at war with Roe v. Wade as a secular purpose. While Roe v. Wade argues for the measures' invalidity under the Fifth Amendment at least, it does not make the enactments any less secular in their legislative purpose. On its face such legislation, marking explicit disapproval of abortion in most cases, reflects a general and long held social view even if, as has been held, it goes too far in excluding medically necessary abortions.
The argument that the enactments have a primary effect that advances some religions (and inhibits other religions) by its involuntary effect on the conduct of pregnant women fails for essentially the same reasons as the secular purpose argument as well as for the reason that no connection to establishmentarianism is present in the kind of effect on conduct that the enactments were intended to have. The conduct enacted by the law's indirection is the familiar traditional submission to childbirth until recently enforced by criminal statutes.
The argument that the issue will involve excessive government entanglement with religion must, on the present record, be briefly noticed. Lemon v. Kurtzman, 1971, 403 U.S. 602, 619-620, 91 S. Ct. 2105, 2114-2115, 29 L. Ed. 2d 745, and Committee for Public Education v. Nyquist, supra, 413 U.S. at 794-797, 93 S. Ct. at 2976-2977, in speaking of entanglement with religion and divisiveness, had reference primarily to the kind of continuing relation arising out of annually renewed grants of assistance, annually debated on lines that would reopen religious controversy. As it happens that has occurred in the case of the enactments in question, but only because they have been introduced and passed in connection with annual appropriation bills. The annual debate does not arise out of the true nature and purpose of the enactments, but, as the debates make clear, because the pro-life members have been unable to bring to the floor for debate the bills embodying the proposed pro-life constitutional amendments.
But apart from that, it is clear that the healthy working of our political order cannot safely forego the political action of the churches, or discourage it. The reliance, as always, must be on giving an alert and critical hearing to every informed voice, and the spokesmen of religious institutions must not be discouraged, nor inhibited by the fear that their support of legislation, or explicit lobbying for such legislation, will result in its being constitutionally suspect. That does not mean that the fact of denominational support is not relevant to analysis of legislation to determine whether it violates the establishment clause; the law is otherwise.
Nevertheless the enactments do raise grave First and Fifth Amendment problems affecting individual liberty. The evidence (pages 696-697 supra ) makes clear that in the Conservative and Reform Jewish teaching the mother's welfare must always be the primary concern in pregnancy, that the fetus is not a person, and that abortion is mandated to preserve the pregnant woman's health. The American Baptist Church position recognizes that abortion should be a matter of responsible personal decision, and it envisages danger to the physical or mental health of the woman, evidence that the conceptus has a physical or mental defect, and conception in rape, incest or other felony as justifying abortion (supra, pages 697-700). The United Methodist Church affirms the principle of responsible parenthood and takes account, in the abortion context, of the threat of the pregnancy to the physical, mental and emotional health of the pregnant woman and her family; in that belief continuance of the pregnancy is not a moral necessity if the pregnancy endangers the life or health of the woman or poses other serious problems concerning the life, health, or mental capability of the child to be (supra, pages 700-702. These teachings, in the mainstream of the country's religious beliefs, and conduct conforming to them, exact the legislative tolerance that the First Amendment assures. Wisconsin v. Yoder, 1972, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15. The liberty protected by the Fifth Amendment extends certainly to the individual decisions of religiously formed conscience to terminate pregnancy for medical reasons. West Virginia State Board of Education v. Barnette, 1943, 319 U.S. 624, 634-635, 641-642, 63 S. Ct. 1178, 1183-1184, 1186-1187, 87 L. Ed. 1628.
A woman's conscientious decision, in consultation with her physician, to terminate her pregnancy because that is medically necessary to her health, is an exercise of the most fundamental of rights, nearly allied to her right to be, surely part of the liberty protected by the Fifth Amendment, doubly protected when the liberty is exercised in conformity with religious belief and teaching protected by the First Amendment. To deny necessary medical assistance for the lawful and medically necessary procedure of abortion is to violate the pregnant woman's First and Fifth Amendment rights. The irreconcilable conflict of deeply and widely held views on this issue of individual conscience excludes any legislative intervention except that which protects each individual's freedom of conscientious decision and conscientious nonparticipation.
Judgment must be for plaintiffs.
It is, accordingly,
ORDERED that the Clerk enter judgment in the actions in the accompanying forms, which have been approved.