the Court's decisions), and failure of five of thirteen Washington metropolitan area abortion clinics to pass a voluntary inspection program established by the District of Columbia Medical Society, Planned Parenthood and District of Columbia health officials. If this were any other kind of medical care, I cannot help but believe that the Congress would be shocked and an investigation launched. This would be proper-it is shocking, and it is demonstrative of the extent to which the Court bound the hands of state and local governments even to protect women from unsafe medical procedures, fraudulent practices and unsanitary clinical conditions. We are seeing what these decisions are wreaking on our country. We will know more about their breadth when the Court has rendered its decisions in the recently argued trilogy of cases nominally referred to as Danforth v. Planned Parenthood. I am skeptical, however, that there will be any significant confinement since, in the case of Missouri, the State law pushed as far as possible within the parameters set by the Court. That push was not far, and still it is being challenged as an unconstitutional infringement on a right to privacy to obtain an abortion. The language of the Court in Doe v. Bolton, supra, is as follows: "This is not to say that Georgia may not or should not, from and after the end of the first trimester, adopt standards for licensing all facilities where abortions may be performed so long as those standards are legitimately related to the objective the State seeks to accomplish." (140 U.S. at 195–196). "Standards" and "legitimately"-the Court has mired itself hopelessly in the administration of abortion regulatory laws. It has frustrated Georgia's modern attempt to provide abortions at those times when many in the country would grant that the woman's interest outweighs that of the unborn, and it has struck down the State's attempts to ensure safety and knowledgeable choice for the woman. On the one hand, it has repudiated the "right to do with one's body as one pleases;" on the other, it has cast its language so that its repudiation is hollow. The Court prematurely threw itself into the breach as legislatures and citizens in every state were grappling with abortion laws regulating it and/or prohibiting it. At stake is human life in the womb and a unique conflict in the interests of two individuals. It seems to me that this is a major public policy question with many ancillary issues which should be subject of legislative determinations-not that of seven justices. Ely remarks, "Were I a legislator I would vote for a statute very much like the one the Court ends up drafting," (Ely, supra, at 926). However, he then goes no to say: "Of course a woman's freedom to choose an abortion is part of the 'liberty' the Fourteenth Amendment says shall not be denied without due process of law, as indeed is anyone's freedom to do what he wants. But 'due process' generally guarantees only that the inhibition be procedurally fair and that it have some 'rational' connection-though plausible is probably a better wordwith a permissible governmental goal. What is unusual about Roe is that the liberty involved is accorded a far more stringent protection, so stringent that a desire to preserve the fetus's existence is unable to overcome it—a protection more stringent, I think it fair to say, than that the present Court accords the freedom of the press explicitly guaranteed by the First Amendment. What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-a-vis the interest that legislatively prevailed over it. And that, I believe the predictable early reaction to Roe notwithstanding ('more of the same Warren-type activism')— is a charge that can responsibly be leveled at no other decision of the past twenty years. At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking." (Footnotes deleted). (Ely, supra, at 935–937). All of these factors and many more having been cautiously and solicitiously deliberated upon, I have proposed a constitutional amendment restoring to the Congress and the States their authority to make laws concerning abortion in their respective jurisdictions. This amendment is H.J. Res. 144 and was reintroduced with co-sponsors as H.J. Res. 221. It provides the protections of due process and equal protection of the law to human beings in these categories whose life can now be or can arguably be taken in accordance with the Court's decisions by defining the word "person" as it is used in this amendment and in the Fifth and Fourteenth Amendments to include all human beings, including their unborn offspring, at every stage of their biological development, irrespective of age, health, function or condition of dependency. It gives constitutional support to the belief that all human life is valuable and meaningful simply because it is human. It is also my intent that this amendment be flexible according to the desires of the people of each jurisdiction. It does not restrict the authority of the Congress and the States as to the liberalness or restrictiveness of their legislation so long as the laws they enact pursuant to the amendment are definite and not arbitrary and assure to these protected human beings a constitutional degree of due process and equal protection. It must allow the people of each jurisdiction to make the judgment when the need for taking life overrides the principle that human life should be preserved and restrains Congress and the States by adopting the traditional exception allowing an abortion in all cases when a pregnancy endangers the life of the mother. My amendment or any amendment is addressed to reasonable people. Our citizens and State legislatures certainly were grappling carefully with the problems involved in abortion and the protection of the unborn before the Court's decisions. There is less of a consensus now, and an amendment such as I envision would enable a consensus to develop through the workings of our system of government. I am confident that our citizens and their legislators will make decisions on abortion and the protection of the unborn which reflect the considered weighing of factors. Also, no matter what amendment two-thirds of the Congress and three-fourths of the States might approve, I do not agree that it, or even legislation restricting access to abortion, would involve the imposition of a single religious belief. First, our Constitution addresses a higher order of justice, i.e., it is a document of moral purpose and force and teaches on a noble plane. Its preachments cannot be divorced from our Judeo-Christian heritage. Second, there is the secular agreement that the taking of another human life is socially and morally wrong. Abortion joins a small number of permissible events when another human life may be taken. Third, all law manifests moral or ethical views, whether we consider political campaigns, food stamps, pollution or abortion. Fourth, people from every segment of society and from every religion have expressed opposition to permissive abortion. No single group or even number of groups stands alone in promoting restriction of access to abortion. Fifth, people who for reasons of conscience oppose abortion are forced to pay for this service to others through taxes which go to medical care, social services and hospital support and to work in places where this service is performed. I here insert the words of my good friend, the Honorable Mark O. Hatfield, United States Senator from Oregon, made on the floor of the Senate on May 31, 1973: "An issue marked by such intensity and divisiveness invites public neutrality on the part of the politician. Quite candidly, it usually seems pragmatically imprudent to become strongly and unapologetically committed on either side of this controversy. "In truth, I have chosen to identify myself unambiguously with a constitutional amendment safeguarding the existence of human life in all forms because I am utterly convinced that issues of the most profound moral consequence for our society, and for all humanity, are at stake. "I have wrestled with my beliefs about abortion-morally, legally, biologically, sociologically, and theologically. In doing so, convictions that I find totally compelling have been deeply affirmed. Moreover, I am persuaded that how society regards this question directly relates to whether we can choose to nourish and enhance all life for the development of its full humanity, or whether we shall make quiet compromises about the sacredness of human life, until the fundamental worth of any life becomes subject to society's discretion, rather than guaranteed by that life's being. "It would be simpler if one concluded that convictions about abortion, however deeply felt, were 'personal' beliefs that should be followed individually, but not applied to society. But the belief in life's fundamental right to be has inevitable corporate consequences. I do not, after all, believe merely in my right to be; I believe in the right of all life to be. It would be hypocritical cowardice to hold such a conviction, but not to propose, as a legislator, that society embrace this view. "In opposing our intervention in Indochina, for example, I did not merely believe it would be wrong for me, as an individual, to fight there. I believed that no American should fight there, which compelled me to propose legislation expressing that conviction. "Certainly, abortion, like the war, is an issue requiring moral judgments by each of us as individuals. But it is also an issue which society should and must continually face, making its corporate moral determinations. "The vitality of our corporate conscience is the fundamental issue." Abortion and the protection of unborn life are societal problems, not individual ones. We, as a society, cannot come to grips with the problems under the present regime of Supreme Court administration of social policy matters in which the greatest number of citizens possible must be involved. If we are truly interested in the fate of a mother, of a woman with a troubled pregnancy or of a woman who wants to bear a child but has difficulties, then our attentions must not only be addressed to the violent act of abortion but also to the beneficial alternatives to it. Abortion is not a solution to poverty or mental illness or any other number of ills and often is the compounder of physical, mental and sociological problems. As a body politic, we should take measures to enhance the personal dignity of the pregnant woman and to guarantee her mental and physical health. We must redirect the focus of our social services programs to promote the preservation of life, elevate the well-being of the pregnant woman who wishes to give birth, and assist her and her infant in establishing themselves in society. For example, I have introduced H.R. 10878, the National School-Age Mother and Child Health Act of 1975, which might be described as providing "life support" services to teenage girls and their infants and pre-school children. Similar legislation has been proposed by Representative Cohen, Representative Spellman, Senator Bayh, and Senator Kennedy. This legislation provides for federal grants to the States to create comprehensive services programs for pregnant teenagers and their infants and children to meet their health, educational and vocational, psychological, family planning, job placement and other social services needs. Even with the availability of abortion, some two-thirds of pregnant teen-agers choose to continue their pregnancies to term. In order to ensure their and their babies' health, this bill provides that they receive health care and nutrition, and in order to guarantee that fulfilling roles will be open to them in society, it provides for their continued education and/or vocational training. We in the Congress already have taken some steps to assist families, women and children-there is the special feeding program for pregnant women popularly known as WIC, the title XX social services programs administered by the States, and the Family Planning and Population Research Act of 1970. A number of other alternatives exist in the inchoate stage or are struggling without the needed support; with a redirection of purpose, increased federal, State and private support for these services would do much more for the well-being of women and their families than increased support for and access to abortion. "Pro-life" counselling, for instance, falls chiefly within the responsibility of Alternatives to Abortion and Birthright; what is needed is professional counselling for women and families experiencing distressed pregnancies so that they have complete information on medical, legal, psychiatric, spiritual and other counselling concerns. There is a need for rapid medical and supportive assistance for the rape victim. Parents must have access to genetic counselling to aid in their determination whether they can produce normal children. People of all ages need family life and sex education, and many women, especially teenagers, need post-abortal counselling and emotional and mental care. There is also a need for improved insurance coverage for maternity and for reform of adoption policies and laws. The field is wide-open with much that can be done to enhance human dignity for pregnant women. I urge the Subcommittee to continue its investigation into the subject of abortion. The issues involved are extremely important and highly controversial. With study, I believe the Members of the Subcommittee will come to understand why so many people are alarmed over the Supreme Court's decisions and the ramifications they hold for the future value of human life in our society. STATEMENT OF HON. GENE SNYDER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF KENTUCKY Mr. Chairman, and Members of the Subcommittee, thank you for this opportunity to present my arguments on behalf of H.J. Res. 246, which I have introduced, proposing an amendment to the Constitution of the United States recognizing the right to life of every unborn person from the moment of fertilization. Mr. Chairman, you are to be commended for asking a penetrating question of a witness on the very first day of these hearings that, had the Supreme Court asked it of itself with the same earnest sincerity, might have led to an entirely different result in Roe v. Wade, and Doe v. Bolton. I will refer to your question, and its great implications, later in Section VI of my testimony. I The reasons underlying the arguments for my amendment could be summed up in two utterly simple, basic, and undeniable, complementary statements of fact that too many of us do not wish to face up to: 1. No person-no human being, man or women, healthy or deformed-has ever been born without having first passed through the zygotic, embryonic and fetal stages prior to birth. 2. No embryo or fetus in any woman's womb that has been left to pass through its full cycle to live birth, has ever turned out to be anything but a baby human child, male or female. All other factors in the human life vs. abortion controversy are secondary to the truths contained in those two statements. All other considerations are secondary. No matter the level or the intensity of the arguments in the controversy, those two basic facts remain crystal clear. No child born of woman has ever been anything but a human person. No woman has ever given birth to a horse, or fish, or eagle, or rock, or rose, or tree. A third basic fact is that no aborted embryo or fetus has ever been identified as any of those things, or as anything else not human. Clearly, humans beget only humans; humans give birth only to humans. Nothing on earth that is not human, has ever passed through any stage or phase of human life. As far as I can determine, even those who believe in some form of reincarnation do not claim that a human being is anything less than human during his or her entire human existence. Mr. Chairman, and Members of the Subcommittee, the embryo or fetus carried by a woman, at any and every stage is human, regardless of its development. Those two elementary truths which I have stated, alone tell us that it simply cannot be anything else. But medical knowledge affirms it, completely. In 1827, the human ovum and its function in conception was discovered. Fertilization of the female ovum by the male sperm was found to be the natural beginning of new human life. A fertilized egg, or zygote, was seen to be indispensable to new human life. Without such fertilization, a new human life could not come into being. With it, nothing but human life could be involved. Scientists and medical men who sought only truth, from that point on accepted the act of fertilization in the joining of sperm and ovum, as clearly and undeniably the first step, or stage, or phase of life for a separate, individual human being. It was obviously the basic, necessary step to initiate or conceive human life. Later theories or findings that conception is a process, and not just an initial act, have not changed the basic fact that the fertilization of the ovum by the sperm is absolutely necessary for conception of new life that then, or at any point thenceforth, is never anything less than human life. The basic issue in the controversy is human life, and the value we place upon human life in all its stages. It is not abortion or the right to have an abortion. Once we thoroughly comprehend the no longer mysterious beginning of human life and its prenatal stages, we shall readily see the question of abortion in its true light. Abortion itself is undergoing change. I don't mean in techniques as much as in purpose. Traditionally defined as "the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead fetus," (proposed Uniform Abortion Act adopted by American Bar Association, 1972) abortion is being considered more and more in many quarters as a means of saving human life. The removal of the fetus from the womb will be utilized to prevent the unborn child's death-perhaps even disfigurement or malformation-that may be diagnosed as a certainty or probability without such removal. Fetoscopy is being perfected. Doctors and technicians are becoming more and more adept at viewing the development of the embryo and the fetus with advanced instruments that can enable them to observe defects in order to seek to correct them. Human life is sacred to men of science and medicine who strive for the perfection of such techniques. They wish to advance and perfect human life, not desecrate and destroy it. It would be cruel to call such men abortionists now, in view of what abortion has always meant. Yet they truly may come to be called that in a few short years, legitimately and honorably, when abortion will take on a completely new image as safeguarding human life. To appreciate just how far off base the Court was in Roe and Doe, we must realize the capabilities today of medical science in regard to the unborn. To demonstrate some of them, I wish to include at this point in my testimony an extremely pertinent article from Good Housekeeping for March 1976, entitled, "Second Thoughts on Abortion From the Doctor Who Led the Crusade For It." That doctor is Bernard Nathanson, M.D. The article reveals that heartbeats can be detected at six weeks in embryos with electrocardiagraph; brainwaves recorded at eight weeks; the fluid in which fetuses live can be analyzed biochemically; their growth studied by the use of ultrasound; if needed, they can be given blood transfusions, etc. [From Good Housekeeping, March 1976] SECOND THOUGHTS ON ABORTION FROM THE DOCTOR WHO LED THE CRUSADE FOR IT Bernard Nathanson, M.D., was once head of New York's first and busiest abortion clinic. Now he feels that the removal of a fetus is the taking of human life. By Charles and Bonnie Remsberg. One of the most dramatic turnabouts in recent years is that of Dr. Bernard N. Nathanson. Once a militant crusader for abortion on demand and director of a pioneer clinic where upwards of 100 pregnancies were terminated each day, Nathanson now marches to a very different tune. He has come to believe that abortion "is the taking of human life," and that a legal climate that is "completely permissive" on that issue may be a threat to the very fabric of our society. Dr. Nathanson is now associated with St. Luke's Woman's Hospital in New York City, where he oversees a special medical unit devoted to the sophisticated testing of unborn babies in the wombs of their mothers. The heartbeats of fetuses in early stages of development are monitored electronically; the fluid in which they live is analyzed biochemically; the way they are growing is studied with ultrasound. When problems are detected, blood transfusions and other major treatments are sometimes performed long before birth. "We are saving babies," Nathanson says with evident pride, "who would not otherwise be saved." His work at St. Luke's seems to stand in vivid contrast to what he formerly did as chief of the nation's largest abortion clinic. Yet, for Nathanson, the two jobs are indelibly related. For it was their unusual juxtaposition at a certain period in his life that helped produce his surprising change of mind about abortion. An intense, dark-haired man of 49 with thick eyeglasses and far-ranging intellectual curiosity, Nathanson earned his medical degree in Canada more than 25 years ago and now, in addition to his work at St. Luke's, maintains a busy practice in obstetrics and gynecology in Manhattan's fashionable East Eighties. He first became an advocate of legalized abortion because of his weariness with the deviousness spawned by the old restrictive laws. In those days, he |