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The American Civil Liberties Union. The Citizens Advisory Council on Status of Women. The Planned Parenthood- World Population. The American Ethical Union. The American Humanist Association. The National Council of Women of the United States. The American Psychological Association. The American Society of Mammalogists. The YWCA. The Izaak Walton League of America. The Chicago Child Care Society. The National Organization for Women. The President's Task Force on the Mentally Handicapped. The Urban League. The White House Conference on Children and Youth. The American Association of University Women. The American Home Economics Association. The National Association of Social Workers. The National Council on Family Relations. The National Welfare Rights Organization. The Community Service Society. The American Bar Association. The Americans for Democratic Action. The Women's International League for Peace and Freedom. The National Women's Political Convention. Mr. Chairman, these people are not pro-abortion, just as I am not pro-abortion. They simply feel, as I do, that with this Nation's religious and ethical diversity, no one view of abortion should be written into law. They do not wish to write their own views into the law of the land. They fully understand that others may not share their views. They simply do not wish to be bound by the religious or ethical dictates of others.
Mr. Chairman, this nation has traditionally and wisely looked to the Supreme Court as a protector and defender of individual rights and religious liberties, especially when political pressures have made protection of such rights and liberties difficult.
In the case of the abortion issue, the Court has wisely acted to take the state out of the decision-making process (except for late abortions) and has thereby provided the kind of individual protection our society has depended upon over the years. Under the Court's decision, all individuals are free to make their own decisions consistent with their own religious, moral, and ethical views.
A number of the groups I have mentioned, and several others, have coalesced to protect these individual rights against renewed attacks from those who would impose a monolithic view of abortion on all members of society. I believe their statement of purpose further exemplifies the importance of protecting the individual rights of all Americans:
“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."
Mr. Chairman, this clearly is the essence of your current deliberations. Mr. Chairman, given these fundamental questions of individual rights and religious liberties, let me mention for a moment some other aspects of the abortion issue which are relevant to your deliberations.
As you know, the Supreme Court's 1973 ruling automatically superseded inconsistent state laws. Although certain states chose to ignore the Court's ruling, and subsequently passed laws prohibiting abortions, all such restrictive laws have predictably been struck down.
But in two other important areas, state and federal courts have consistently issued rulings which not only support but in fact bolster the original Supreme Court decision. The two primary areas in question concern Medicaid coverage of abortions and consent requirements.
In all decisions that have come to my attention, State Medicaid programs have been required to pay for abortions. When a Medicaid program offers aid to poor
women who are pregnant, it cannot set up a discriminatory standard for poor women by arbitrarily refusing the abortion option. Denial of Medicaid funds for pregnancy termination has been consistently found to violate the equal protection and due process protections of the Fifth and Fourteenth Amendments.
With regard to consent requirements, the Supreme Court specifically stated in the 1973 decision that they did not discuss the father's rights, if any exist in the Constitutional context, in the abortion decision. No paternal rights were asserted in either case."
Since the decision, other courts have dealt with the question and have consistently held that consent to the abortion by any party other than the woman (i.e., husband, father, parents of minor) cannot be required. In this way, courts around the country have reflected the primary impact of the 1973 decision—that the woman, and the woman alone, has a fundamental individual right which may not be obstructed.
On the question of public support for the legalization of abortion, we see a diversity of opinion which typifies the kind of pluralistic ethical and religious views which I discussed earlier in my statement. I should point out, however, that recent polls have shown a clear majority favoring the individual's right to make this decision, as opposed to having restrictive provisions written into the law.
Several of my colleagues have confided in me that some of their constituents had voiced a different view of abortion laws than recent polls had indicated. But even Congressional questionnaires have shown majority support for the legalization of abortion. Of ninety-three questionnaires sent by Members of Congress during 1973 and 1974, seventy-three showed majority support for free choice; whereas only five showed majority opposition. (The remaining fifteen showed no clear majority.) Results of these polls are included at the end of my statement
PUBLIC HEALTH BENEFITS
Another important consideration in the abortion debate is the significant positive impact on the public health, or more specifically on maternal mortality. Opponents of abortion often look to data from other decades and other countries in an attempt to demonstrate that legal abortions have health risks comparable with illegal abortions. Quite to the contrary, current statistics from our own country clearly show that where abortion has been legalized, there has been a significant drop in the number of abortion-related maternal deaths and medical complications. A recent report from the Center for Disease Control (January 18, 1975) shows a 40 percent drop in maternal mortality resulting from abortion in just the first year that abortions were legal nationwide. This drop is due entirely to fewer deaths from illegally induced or self-induced procedures. In its editorial note the Center for Disease control states: “The two-year decrease in illegal and spontaneous abortion mortality occurred concurrently with an increased availability of safer, legal abortion services throughout the Country.”
The Center's report also points out that abortion in the first tri-mester is now about ten times safer than a full-term pregnancy.
One early assumption which has been borne out by all available data is that, where information about abortion and abortion services is readily available to all women, rich and poor alike, women will obtain early, and therefore safe, abortions. In the state of Washington, abortion became a legal option in 1972 with passage of a statewide referendum. Today, more than 95 percent of all abortions in the state of Washington are performed in the first tri-mester. In Illinois, 97 percent are performed before the twelfth week of pregnancy.
In this regard, it should be noted that only 15 percent of all abortions in 1973 were performed after the first tri-mester. Only 2 percent occurred after the twentyfirst week. And it is clear that the circumstances surrounding these late abortions are extreme. Generally, women forced to late abortions do so for three primary reasons. First, diagnosis of genetic disorder cannot be completed until early in the second tri-mester. Second, teenagers frequently deny the fact of pregnancy, even to themselves, or don't know where to turn, for several weeks or monthş. Finally, many poor women even today have only limited access to quality medical care and are either not aware of abortion services or are denied access because of bureaucratic red tape.
To compound the problem, about five million low income American women do not have access to preventive family planning information or services. And on this point, may I offer an aside. Mr. Chairman, we would all welcome a time in which abortion is a thing of the past, truly a medical rarity. With adequate family planning information and services for all who want, but do not currently have access to them, we might virtually eliminate the need for abortions. I had fervently hoped that following the Supreme Court's decision, opponents of legalized abortion would begin to work with us to make family planning services available to all so that abortions might one day not be necessary. Unfortunately, however, we find today that some opponents of legalized abortion are directing their efforts toward overturning the Supreme Court decision and imposing new restrictions on Federal programs-rather than the far more constructive approach of helping to prevent the unwanted pregnancies which rseult in abortion.
Let me turn now to the proposed amendments which would ignore both the wisdom of the Court's decision and the extreme negative consequences of any new restriction on the individual's right to terminate an early pregnancy.
We have seen that there is far from a consensus of public opinion in support of any move to overturn the Supreme Court decisions. At the same time, groups opposing legal abortion themselves have had difficulty in developing a consensus on the form that a Constitutional Amendment should take. Their difficulty is inherent in any attempt to develop, in law, strictly defined absolutes as to when a fetus may acquire personhood. In our society, there is no agreement as to when, or at what point during the development of a fertilized ovum the state should develop an interest in its preservation. I have already pointed out the diversity of views on this subject among our religious, ethical and medical communities.
The Supreme Court decision established viability as the time when the states can assert an interest in the protection of the fetus (except in cases where there is a conflict with the woman's own survival or health). Groups opposing the decisions seek instead to establish through various proposed Constitutional Amend. ments, not only that state interest commences “from the moment of conception,' or "moment of fertilization” or “at every stage of biological development," but also that personhood be fully granted at that time. Each one of these starting points for state interest is fraught with problems of definition, and, ironically, focuses on one of the points of confusion in the abortion debate. It is asserted that "life" begins at some certain point associated with fertilization or implantation. But life is also present in the sperm and egg before fertilization. The criterion would, I believe be more appropriately dependent upon the point at which ensoulment occurs. Which reminds us again of the varying religious views among us.
Mr. Chairman, my statement would be incomplete if I failed to discuss the responsibilities of the states under the Supreme Court abortion ruling.
The wisdom of the 1973 Supreme Court decision lies in the fact it does not deal in absolutes, for the abortion question is one in which there are no absolutesethical, legal, or scientific. The Court squarely faced up to this in its acknowledgment of the incontrovertible and simple fact that both the fetus and the pregnant mother cannot simultaneously and in every situation be held to have absolute, equal rights, even the right to life. May I refer you to an excellent piece on this subject by Dr. J. Philip Wogaman, Dean of the Wesley Theological Seminary, a copy of which is attached to my statement.
The Court, then, qualified both a woman's right to terminate her pregnancy and the rights of the individual states to regulate, and even proscribe, the abortion process. In doing so, the Court, acting in the best traditions of our unique system of Federal-State Government, left a great deal of latitude to the individual states in exercising their legitimate interests. Indeed, the syllabus preceding the opinion states clearly that the individual states have “legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a 'compelling' point at various stages of the woman's approach to term.” The Court's decision set forth guidelines for balancing the legitimate interests of the states in protecting the rights of already existing life. Each of these interests is seen to be "compelling" at the various stages of pregnancy, and within this framework, much is left to legislation and adjudication at the state level.
The Supreme Court decision has been frequently criticized for not solving all of the problems-legal or otherwise-relating to abortion. This is certainly the case, but I would argue that the fluid and opended nature of the decision was intentional and is in the best interests of a society, first in which we not only hold diverse, and even opposing, religious and ethical beliefs, but second, in which constant refinements and advances are being made in the art of medical science relating to pre-natal development.
As I have already mentioned, the Supreme Court recognized the ethical diversity of the American people and their religious leadership in protecting the right of American women, in conjunction with sound medical advice, to opt for abortion before the time of viability, when the fetus has a reasonable chance of survival outside the mother's womb.
The difficult subject of viability relates closely to the second reason for the wisdom of the open-ended nature of the Court's decision. While neither theologians nor scientists are now in agreement among themselves as to when "life" begins, it is becoming increasingly possible for medical science to determine the approximate time at which a fetus may be capable of survival outside the womb. At the time of the Court decision, conventional medical wisdom placed this occurrence at somewhere between 24 and 28 weeks. Several years from now, with more advanced medical technology, that moment may be considerably earlier. The point is that as the approximate moment of viability changes, the states will continue to have the right-and, indeed, the duty—to respond within the basic framework of the Court's decisions by regulating, and even proscribing the abortion decision, except in cases where abortion is necessary to protect the life or health of the mother.
The Supreme Court, admittedly and purposely did not close the book on the abortion controversy in its 1973 decision. It did not deal with such abortionrelated questions as consent, performance and facility requirements, or the responsibility of the state or the doctor to sustain the potential life of a potentially viable fetus resulting from the abortion procedure. Several states have already enacted laws which attempt to deal with these problems, and I would hope that all states continue to examine their responsibilities under the 1973 decision and pass appropriate enacting legislation.
In conclusion, Mr. Chairman, may I ask a question which goes to the very heart of your delibertions. If theologians and ethicists have come no closer to agreement on the morality of abortion, if law in the past has not moved us any closer to consensus now ended the practice, what special qualifications do we here in the Senate have to settle this matter?
In the absence of any overwhelming consensus in our society, I believe we must come down on the side of individual liberty. Only the individual woman can know the threat posed to her own humanity by a pregnancy. She must be free to make a decision consistent with her own moral, ethical and religious convictions, not yours, not mine, and most of all, not the state's.
The American Lutheran Church last October focused on this question in a beautifully written statement expressing the right and duty of individual conscience in this area:
"The position by the American Lutheran Church is a pro-life position. It looks in awe at the mystery of procreation and at the processes through which a human being develops, matures, and dies. It takes seriously the right of the developing life to be born. It takes into account the rights of the already born to their health, their individuality, and the wholeness of their lives. It allows the judgment that all pertinent factors responsible considered, the developing life may need to be terminated in order to defend the health and wholeness of persons already present and already participating in the relationships and responsibilities of life:
"Needless to say, equally committed Christians differ in their understanding of how these dimensions answer the abortion issue. The ALC earnestly urges the members of its congregations to show Christian love, mercy and compassionate understanding to those with whose views and actions on the abortion they totally disagree.
"We have no need to itemize a list of circumstances under which abortion is acceptable or is forbidden. We have the responsibility to make the best possible decision we are capable of making in light of the information available to us and our sense of accountability to God, neighbor and self.”
Just as no church can make such a list, neither should Congress attempt to impose either a total or a limited prohibition. The debate you have been carrying on here over the last year is basically all about freedom of belief. That freedom is no less precious on this complex issue of abortion than in other areas. Let all be free to oppose abortion fervently or accept it, as conscience dictates, but the Constitution of the United States would be grievously wounded by attempting to impose one viewpoint at a terrible cost upon those who believe otherwise.
93 Polls 73 Majority Support the Right
to Abortion 15 No majority or States'
705 G Street S.E. Washington, D.C. 20003 National Offices 250 West 57th Street New York, New York 10019
PUBLIC OPINION ON ABORTION
rights 5 Majority Oppose the Right