"SEC. 2. No unborn person shall be deprived of life by any person: Provided, however, That nothing in this article shall prohibit a law permitting only those medical procedures required to prevent the death of the mother. "SEC. 3. Congress and the several States shall have the power to enforce this article by appropriate legislation within their respective jurisdictions.". [S.J. Res. 91, 94th Cong., 1st sess.] JOINT RESOLUTION Proposing an amendment to the Constitution of the United States with respect to State laws relating to the termination of pregnancy Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution if ratified by the legislatures of three-fourths of the several States within seven years after its submission to the States for ratification: "ARTICLE "The power to regulate the circumstances under which pregnancy may be terminated is reserved to the States.". ABORTION-PART IV MONDAY, MARCH 10, 1975 UNITED STATES SENATE, SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS, OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittee met, pursuant to notice, at 10:10 a.m., in room 2228 Dirksen Senate Office Building, Senator Birch Bayh [chairman of the subcommittee] presiding. Present: Senators Bayh [presiding] and Fong. Also present: J. William Heckman, Jr., chief counsel; Marilyn R. Berning, assistant chief clerk. Senator BAYH. We will reconvene our hearings. Our first witness this morning is our distinguished colleague from New York who has been a member of the Senate and who has expressed a tremendous amount of interest in this area. One of his amendments is a primary vehicle for the committee. TESTIMONY OF SEN. JAMES L. BUCKLEY BEFORE THE SENATE SUB- Mr. Chairman, little more than one year ago—March 6, 1974—I had the opportunity to address you and the members of the Subcommittee at the inauguration of hearings on proposed Constitutional amendments aimed at guaranteeing every American the right to life. At that time, I said: "... there is no more important issue before the Senate and the nation than that which you now propose to examine. . . "I have long felt-and my experience during the past year has redoubled my conviction that such success as the case for permissive abortion has managed to acquire, requires that certain crucial facts be obscured from public view or ignored altogether. And although the proponents of abortion have used this tactic with measurable success in some places, I know that they will not be successful here. I believe I can speak for all opponents of permissive abortion in saying that we rest our case on the facts-the facts concerning what precisely it is that is done during an abortion; and the facts concerning what, or rather who, it is that is killed during an abortion. And I am confident that this subcommittee, peopled as it is with men of good will, will bring those facts to light . . ." Mr. Chairman, since I spoke those words a year age, this subcommittee has held 11 days of hearings with testimony from 64 experts in the fields of science, ethics, law and medicine. Your pains-taking and, I am convinced, successful attempts to make sure that no important fact or theory or opinion has been omitted from these hearings have made them a model of fairness, objectivity and reasonableness. I want to take this opportunity to publicly thank you for what I believe to be an outstanding display of patience, understanding and legislative leadership in an extraordinarily difficult area. The thorough and fair hearings conducted to date, plus another year of experience with the reality of abortion-on-demand, have served to dispel all the myths that have clouded the abortion debate and caused people to focus on the essential fact. We are dealing with the matter of the deliberate killing, for utilitarian purposes, of a distinct human life that is biologically distinguishable from other human life only in that it has not as yet been born. We are dealing, in other words, not with "a part of the mother's body", but rather with a unique, genetically complete human being that until birth is sheltered and fed by the mother. Given the indisputable reality of the fact that abortion involves the taking of a distinct human life, this places the focus on what is basically at .ssue: Will American society accept a new ethic that reduces human life from a supreme value to be granted full Constitutional protection from the moment of conception until death, or will it be downgraded to one of a number of values to be weighed in determining whether a particular life shall be terminated? This is something that the most honest advocates of permissive abortion have always understood. I recently came across an article in the New England Journal of Medicine that testified eloquently to this fact. The article was written by Dr. Bernard Nathanson, a founder of the National Association for the Repeal of Abortion Laws, now known as the National Abortion Rights League, and formerly a director of the Center for Reproductive and Sexual Health-at one time considered to be one of the largest abortion clinics in the Western world. In the article, Dr. Nathanson, still an advocate of a liberal abortion policy, concedes that the process of abortion involves the taking of a human life. The center performed 60,000 abortions under his directorship, and Dr. Nathanson candidly admits: "I am deeply troubled by my own increasing certainty that I had in fact presided over 60,000 deaths. There is no longer serious doubt in my mind that human life exists within the womb from the very onset of pregnancy." How Dr. Nathanson reconciles his continued belief in abortion-on-demand, with his "increasing certainty" that he has presided over 60,000 deaths, is not quite clear. But one fact is clear: there is a growing consensus, involving not only those who favor an amendment, but also those who favor abortion-on-demand, that what is at the heart of the matter is whether the United States will reject the ethical precepts of the past in favor of a new utilitarian view of human life. The most honest statement of the matter that I have read appeared in an editorial entitled "A New Ethic for Medicine and Society" that appeared two years ago in California Medicine, the official publication of the California Medical Association. The thrust of the editorial (which supports permissive abortion) is that the current controversy represents the first phase of a head-on conflict between the traditional Judeo-Christian medical and legal ethic (in which the intrinsic worth and equal value of every human life is secured by law) and a new ethic which accepts the taking of human life to meet the compelling social, economical or psychological needs of others. The editorial goes on to say: "The process of eroding the old ethic and substituting the new has already begun. It may be seen most clearly in changing attitudes toward human abortion. In defiance of the long held Western ethic of ntrinsic and equal value for every human life regardless of its stage, condition, or status, abortion is becoming accepted by society as moral, right, and even necessary. It is worth noting that this shift in public attitude has affected the churches, the laws and public policy rather than the reverse. Since the old ethic has not yet been fully displaced it has been necessary to separate the idea of abortion from the idea of killing, which continues to be socially abhorrent. The result has been a curious avoidance of the scientific fact, which everyone really knows, that human life begins at conception and is continuous whether intra- or extra-uterine until death. The very considerable semantic gymnastics which are required to rationalize abortion as anything but taking a human life would be ludicrous if they were not often put forth under socially impeccable auspices. It is suggested that this schizophrenic sort of subterfuge is necessary because while a new ethic is being accpeted the old one has not yet been rejected." Nor does the California Medicine editorial flinch from the necessary consequences of the adoption of the new medical and social ethic. Again I quote: "One may anticipate further development of the roles (of physicians in deciding who shall live and who shall not live) as the problems of birth control and birth selection are extended inevitably to death selection and death control whether by the individual or society. . ." The important link between what the facts tell us and the implications we must draw from these facts was nowhere better expressed than in the testimony of Dr. Andre Hellegers, Director of the Kennedy Institute for the Study of Human Reproduction and Bioethics, before the Subcommittee in April of last year. At that time, Dr. Hellegers said: That the fetus is alive and not dead is undoubted. If it were dead, abortions would not need to be performed and there would be no child to raise. That the fetus is biologically human is also clear. It simply puts it into a category or life that is different than the cat, the rat or the elephant. So the human fetus represents undoubted human life and genetically it is different than any other animal life. "But I think what those who do not oppose abortion mean to actually convey is that this life is not sufficiently valuable to be protected. It has no value, no dignity, no soul, no personhood, no claim to be protected under the Constitution. "That is not a biological question. That is a value issue. The issue is hidden under such language as 'meaningful' life or 'potential' for life, or 'quality' of life. What is at stake goes far beyond the issue of abortion. The question is this: are there to be live (not dead) humans (not rats, cats, etc.) who are to be considered devoid of 'value', 'dignity', 'soul', 'meaningfulness', 'protection under the Constition' or whatever phrase or word by which one wants to describe the inclusionary or exclusionary process? "This is fundamentally why I am opposed to abortion. It is because it attaches no value to live biological human entities . . ." Dr. Hellegers has properly focused attention on the question of values. He has stated the problem both precisely and correctly. The question of the humanity of the fetus is not a question of subjective judgment, of personal whim or belief. It is a question of fact, and the fact is indisputable: a fetus-and I use that term so that I cannot be accused of slanting the statement with emotional overtonesis genetically and biologically identifiable as a member of the human species and no other. It has a life and destiny of its own. Having once and for all settled the scientific fact of its humanity, we come to the ultimate question of value: What do we, as a society, say about the worth of this living human being? This growing knowledge of human biology and what it is that is being killed in an abortion is sharpening the public's understanding of the fundamental issues to be decided. This is why the controversy launched by the Supreme Court's abortion decisions can only grow in intensity. This was clearly demonstrated by the over-30,000 men and women who gathered in Washington on January 22nd of this year, almost twice the number who met a year earlier in protest of the Supreme Court decisions. It is demonstrated by the growing strength of the Human Life movement. This realization of what the controversy is truly about serves to underscore the enormity of what happened on January 22nd, 1973. On that day, seven men holding appointive office for life, who were clearly devoid of any understanding of biological facts of life, at one stroke repealed the laws of fifty states and two thousand years of the ethical tradition of Western civilization. I respectfully suggest that theirs was a supremely political act that can only be repaired through the political process. Under the circumstances, I urge the Subcommittee to complete its excellent work with all dispatch, as I know it will. But more than that, I urge the Subcommittee to report out a Human Life Amendment so that the people may once and for all determine for themselves what will be the prevailing ethic of life in the United States. At this stage, this can only be done by enabling the people through the Congress to adopt such an amendment if only to enable this enormously important issue to be judged and decided by the States. Given the institutional difficulties of enacting a constitutional amendment, requiring as it does the approval of 3/4 of the states, no one genuinely interested in having the final decision made by the people of the United States can reasonably object to so direct a testing of popular sentiment. Nothing short of such a referral can possibly resolve the deeply emotional debate now dividing such large bodies of the American public. It is not up to the Supreme Court to decide the ethical values that will guide American society. It is up to the people. Only the people can make this judgment. Mr. Chairman, in urging that your subcommittee report a Human Life Amendment, I have no pride of authorship. I introduced in 1973, and again this year, a proposal for such an Amendment that I believe will accomplish the objectives of all who have joined in the anti-abortion movement. I have also introduced another that has been drafted by the National Right to Life Committee so that the Subcommittee may have the benefit of differing approaches to the same goal. Any apparent technical differences between the two amendments will, as I understand it, be discussed by the distinguished professor of law at Fordham University, Robert Byrn, who will testify before you later this morning. What I wish to emphasize here is that despite these differences our goals are identical; and if these goals are shared by a majority of the subcommittee, I will defer to its expert judgment as to how they may be best achieved. Mr. Byrn is an eloquent and learned advocate of the Constitutional right to life for all Americans. I am certain he will provide you with factual data and expert opinions on these and other important matters. Let me conclude, Mr. Chairman, by once again thanking you for the fairness and objectivity that have been evident throughout these hearings. STATEMENT OF HON. JAMES L. BUCKLEY, A U.S. SENATOR FROM THE STATE OF NEW YORK Senator BUCKLEY. Thank you, Mr. Chairman. I appreciate your letting me appear first since I do have a plane to catch. I ask that my entire statement be put into the record since I will be skipping one or two passages. Mr. Chairman, little more than a year ago, March 6, 1974, I had the opportunity to address you and the members of the subcommittee at the inauguration of hearings on proposed constitutional amendments aimed at guaranteeing every American the right to life. At that time I said, "I believe I can speak for all opponents of permissive abortion in saying we rest our case on the facts, the facts concerning what precisely it is that is done during an abortion, and the effects concerning what, or rather who, it is that is killed during an abortion." I am confident that this subcommittee, peopled as it is with men of good will, will bring these facts to life. Mr. Chairman, since I spoke those words a year ago, this subcommittee has held 11 days of hearings with testimony from 64 witnesses in the fields of science, ethics, law, and medicine. Your painstaking. and, I am convinced, successful attempts to make certain that no important fact or theory or opinion has been omitted from these hearings, has made them a model of fairness, objectivity, and reasonableness. I want to take this opportunity to publicly thank you for what I believe to be an outstanding display of patience, understanding, and legislative leadership in an extraordinarily difficult area. The thorough and fair hearings conducted to date, plus another year of experience with the reality of abortion upon demand, have served to dispel all the myths that have clouded abortion to date and will cause people to focus on the essential facts. We are dealing with the matter of the deliberate killing for utilitarian purposes of a distinct human life that is distinguishable from other human life only in that it has not yet been born. We are dealing, in other words, not with a part of a mother's body, but rather with a unique, genetically complete human being that until birth is merely sheltered and fed by the mother. Given the indisputable reality of the fact that abortion involves the taking of a distinct human life, this places the focus on what is basically at issue. Will American society accept a new ethic that reduces human life from a supreme value to be granted full constitutional protection from the moment of conception until death; or will it be downgraded to one of a number of values to be weighed in determining whether a particular life shall be terminated? The most honest statement of this essential fact that I have read appeared in an editorial entitled, "A New Ethic for Medicine and Society," that appeared 2 years ago in "California Medicine," the official publication of the California Medical Association. The thrust |