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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, Fong, Hruska, and Cook.

Also present: J. William Heckman, Jr., Chief Counsel; and Abby Brezina, Chief Clerk.

Senator Bayh. The committee will please come to order. We are beginning our hearings this morning on a broad area in which there are more strong emotions and deep convictions on both sides of the issue than any issue I have seen before this committee since I have had the privilege of being its chairman.

I am going to try to explore all the available facts and see where that leads us.

[The resolutions referred to, S.J. Res. 119 and S.J. Res. 130, follows:)

(S.J. Res. 119, 93d Cong., first sess.) Joint Resolution proposing an amendment to the Constitution of the United States for

the protection of unborn children and other purposes 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 when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress :

"ARTICLE — "SECTION 1. With respect to the right to life, the word 'person', as used in this article and in the fifth and fourteenth articles of amendment to the Constitution of the United States, applies to all human beings, including their unborn offspring at every stage of their biological development, irrespective of age, health, function, or condition of dependency.

"SEC. 2. 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.

"SEC. 3. Congress and the several States shall have power to enforce this article by appropriate legislation within their respective jurisdictions.”

(S.J. Res. 130, 93d Cong., First Sess. ) JOINT RESOLUTION Proposing an amendment to the Constitution of the United States

guaranteeing the right of life to the unborn, the ill, the aged, or the incapacitated 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 a part of the Constitution only if ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress :


“SECTION 1. Neither the United St es nor any State shall deprive any human being, from the moment of conception, of life without due process of law; nor deny to any human being, from the moment of conception, within its jurisdiction, the equal protection of the laws.

"Sec. 2. Neither the United States nor any State shall deprive any human being of life on account of illness, age, or incapacity.

“SEC. 3. Congress and the several States shall have the power to enforce this article by appropriate legislation.".

Senator Bays. We appreciate the fact that our distinguished col. league from New York, Senator Buckley, who is the author of one of the proposed amendments, Senate Joint Resolution 119, is with us this morning.

I will ask my colleagues if they have opening statements and then we will go to Senator Buckley.

Senator Fong. Mr. Chairman, thank you, but I wish to make no opening statement.

Senator BayH. Senator Hruska?

Senator HRUSKA. Mr. Chairman, I have a brief statement and then I would ask to be excused. The Attorney General is at another committee presided over by Senator Ervin, and I wish to be there.

But I wish to join my colleagues in commending you for calling this very important set of hearings. The Supreme Court decision on abortion has generated widespread disagreement throughout the country since it was handed down last year. Emotions run deep on both sides. It is, therefore, fitting and proper to hold extensive hearings on this subject, and I believe they should be hearings in depth.

I believe Justice Blackmun, in delivering the majority opinion, aptly described the sensitivity and complexity of the abortion issue:

One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.

The Court in its ruling held that, at least in the first 3 months of pregnancy, the abortion decision was to be left between the mother and her physician. The Court based its ruling on the right of privacy as contained in the 14th amendment. But, it is worth emphasizing the Court's conclusion:

We therefore conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

Most important, however, are these words:

This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs. That is what we are doing here. The hearing we are having here today is a part of those political processes.

I think my colleagues would agree that this is why we are here today. We must ascertain the dimensions and scope of how the people feel about the Supreme Court decision, whether indeed it was the right decision given the attitudes and beliefs of people throughout this country.

Our first job is to first agree on whether, in this instance, a constitutional amendment is in order, and if so, what is the common language of the amendment-language which will not only be acceptable to the members of this committee, but two-thirds of the members of both the House and Senate and three-fourths of the State legislatures, if it gets that far.

This is no small task, but it is time for us to begin the process. I, therefore, extend my welcome to those witnesses who have agreed to expend their time and energies to assist us in this inquiry.

I thank you, Mr. Chairman.
Senator Bayh. Thank you, Senator Hruska.
Senator Cook.

Senator Cook. Mr. Chairman, I have no formal opening statement except to say that I commend the chairman for his work in this area. He and I have discussed the problems involved on many occasions and I have worked with him and I have worked with the junior Senator from New York on the basis that this matter has caused a great division in the country, which must and should be aired.

Obviously there are those who feel that the court decision is sound, and, therefore, it should be left alone, while on the other hand there are those who feel it is a very unwise and unsound decision, and they wish to express their views.

On this basis, this Senator has insisted that this matter be considered and that the right of expression, which is a very fundamental and constitutional right in this country, should prevail.

I would surmise by looking over this witness list that we have divisiveness and that we can look forward to a rocky road of decision one way or the other, but we have a definite obligation to at least attempt to see what this rocky road is like and allow this right of expression. I remember so vividly, Mr. Chairman, sitting in this room holding hearings on a constitutional amendment to which the chairman and I were cosponsors. As you recall we failed one time and succeeded the next. I remember on one occasion which another member of the Judiciary Committee was in the Chair and an individual in the audience wished to be heard. That individual was hammered down. This occurred shortly after my first term began as U.S. Senator and I made up my mind then, that I did not think the chairman at any time had the right to deny an airing of an issue. I congratulate you on the openness of these hearings. I know that this is what we will continue to do and I know that this is what the chairman will continue to do. Thank you, Mr. Chairman.

Senator Bayh. Thank you for the compliments, Senator Cook. I appreciate the cooperation you have given me and this committee.

You are absolutely right when you say despite the controversy this matter is going to be heard. I think every matter has a right to be heard and probably one of the reasons the political process has reached such a low opinion in the minds of many, many people is that a lot of Americans feel that the tough issues are the ones we try to sweep under the rug. I think the rug is so full now there is no more room for controversial issues. Let's put it out on the table and see where it goes. Thank you.

[A prepared statement by the Honorable Mark 0. Hatfield, U.S. Senator from the State of Oregon, follows:]

STATEMENT OF SENATOR MARK O. HATFIELD, IN SUPPORT OF S.J. REs. 119 There is no single characteristic of our society that troubles my inner self more than the degradation, the cheapening, the dehumanization of life that we see all around us today.

That is what is at the heart of the terrible inhumanity of our policies in Indochina. Human life became cheap, and easily expendable—especially Asian life, which somehow seemed less valuable than American life. We justified policies by talking about body counts. And we destroyed all sensitivity to the sanctity of human life,

That is what happened at Attica. Remember what one of the prisoners said, "We didn't want to be treated like numbers any longer; we want to be treated like human beings." Yet the bodies of the prisoners who were killed during that tragedy were identified only by tags that read “P-1, P-2, P-3..."

We escalate the dehumanization of life whenever we heed the frightened and vengeful pleas for “law and order” that would have us crush the lives of others.

The same holds true for capital punishment. The State cannot be so arrogant as to take away that ultimate right of every citizen-the right to life. Those who plea for reinstituting capital punishment-even for those certain "exceptions"do not sense how basic a right they would deny.

A cheapness for life plagues our attitudes regarding amnesty. Many would ostracize young men from our midst–ban them forever from our land-because they disagree with the decisions of conscience that were made. That simply means there is little respect for their lives.

We have suffered so many assaults on the sacredness of human life that our conscience is insensitive and numb.

We sense this depersonalization of life in other ways as well. People feel estranged from society's structures and institutions. As our cities, our universities, and our corporations grow larger and larger, life within them becomes increasingly impersonal. Individualism suffers. People are regarded as cogs that have to fit into a machine. This is the reason why 87% of all Americans feel, if they had their choice, they would rather live in small country towns than in our large urban areas.

The dominant materialism of our culture further erodes our respect for the quality and value of human life. Our consumptive society sells us a life-style that emphasizes getting and having. The frequent result is that things become valued more than people; "possessions” become more important than "relationships.” If our lives are held captive to the values of materialism, we can never give priority to the sanctity of human life.

Such values, and the patterns of depersonalization have eroded the bonds of family, and the quality of our relationships. The warmth and primacy of the family strikes many as being obsolete. There is a tendency to keep relationships, both inside and outside the family, "second" to the primary demands of job, ambition, a sense of personal freedom, the accumulation of money and of things.

The malaise that strikes at the heart of our times is the fear of responsibility in and to human relationships; this force cripples us as humans and has devastating effects on our society as a whole. If people cannot extend mutual responsibility and care within a relationship, they will be unlikely to demonstrate concern for corporate society, and the well-being of one's fellow citizens. If people are afraid and unable to deal with the complexities of interpersonal relationships and to build strong family units, they become so self-oriented that they can be immune to tragedy.

Body counts are possible when a society encourages its members to believe "as long as it's not me, it's o.k.” Capital punishment exists where sensitivity to the demented and the tormented has decayed into the simplistic notion that the destruction of that life somehow absolves the crime that was committed.

The evidence of how life can be degraded, cheapened, and dehumanized by forces and attitudes in our society is painfully obvious.

Should it come as any surprise, then, that our society has come to regard abortion as an increasingly permissible and acceptable form of human behavior?

Is it any wonder that people should believe that liberal abortion laws, which make it easier and legal to take human life, will somehow liberate us, and make our society more humane?

Abortion is a form of violence. It is condoned by a society that has become callous and indifferent to the ultimate value of human life. It is undergirded by a whole moral climate that elevates selfish personal convenience to a supreme status in human decision-making. This attitude, when applied by individual citizens to decisions concerning the neighborhoods in which they live, the schools to which they send their children, the use to which they put their material resources, and the way they regard their families and relationships, can only result in social deterioration. When expressed in our national character, this same attitude results in oppression against minority groups, exploitation and misuse of our natural resources, and a reckless, destructive foreign policy.

Abortion is symtomatic of a retreat from mutual responsibility towards one another to self-seeking personal prerogatives as the ultimate norm. Let us recognize that often, abortion is submitted to by women who have been dehumanized by relationships lacking either commitment or responsibility. These same abortions are ignored-or even encouraged-by the men who caused the pregnancy since the convenience of abortion eliminates the necessity to view that woman, and the relationship, as an integral part of his life, calling for responsibility and care.

The dehumanization of life in much of our society has led us to the dehumanization of sex. Even the famous sex researchers, Masters and Johnson, have told us that the pendulum bas swung too far toward sex without commitment and sex without responsibility. “It may be,” they stated last year here in Washiington, “that now is the appropriate time to return sex to the doman of the family." An exploitive attitude toward sex flourishes in society, reducing men and women to objects and things. Once having dehumanized the act of sex, it becomes easy to dehumanize the result, and destroy that life by resorting to abortion.

I am persuaded that how society regards the question of abortion 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 very being.

There is a tendency to approach the essential questions about life from purely sociological, or legal framework, without reference to biological realities. Sociologically, we discover that unwanted children can often face severe and debilitating burdens. We find that mothers with an unwanted pregnancy may not properly nourish themselves, and thus, the life of their developing child. Retardation of that child may be the consequence. Further, we see that society leaves a man who is the cause of an unwed mother's pregnancy with no responsibility, and barely even any guilt. Yet the mother faces the emotional and physical demands of a nine month pregnancy, plus the psychological pain that can result, and then the guilt from a judgmental society. Also we know that there are limits to the number of persons that can be fully nurtured and sustained by a poverty-stricken family. These are all tragic, troubling realities. But despite the harshness of such truths, these are not the criteria for determining when human life begins, or whether the existence of that life has value.

It is just as impossible to arrive at a full answer to these questions from a purely legal perspective. The Supreme Court did not answer the question of when human life, or personhood, begins. Rather, it made an arbitrary judgment about when that life is to be valued, and given legal recognition and protection.

Now we simply cannot blind ourselves from the facts of embryology by allowing legal categories, or sociological criteria, to determine the point when human life shall be valued, and gain the status of person.

It is reckless and irresponsible for society to dismiss what is biologically self-evident. The life of a human being begins at life's beginning. We all know that. That is an inescapable truth.

To pretend anything else is to ignore reality, and even to degrade life. We are all familiar with the miraculous process of life's genesis-a process that prompts any sensitive person to stand in awe and wonder. When that life takes root and starts developing, it is human life, not any other form of life. And it is obviously being, since it is there. It is a human being, a person. Why should we even want to believe otherwise ?

The appropriate question for our society to ask, then, is not, "When does life begin," but rather, "How shall we value the life that exists ?”

The Supreme Court in its Wade and Bolton decision sets limits to the legal definition of personhood-limits which cannot be justified by fundamental biological reality. The court, and our nation, have dealt in the past with the legal

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