complicated, controversial issues and tell us that we are not supposed to get involved in legal specifics when we just have to know how far this proposal is going to go.

Senator BARTLETT. I did not say not get involved. I think you should straighten it out, but I do not think you should have it hang up on that point. I think it is very easy to do that, so I was just expressing a strong opinion that I would hate to see my good friend do that.

Senator BAYH. But you see, the question I asked, I still think is relevant.

Senator BARTLETT. I think it is a good question and I think as I understand this bill that it deals with the fertilized egg after implantation. Is that not your understanding? Or if it is not, that was my understanding.

Senator BAYI. Well, I think the technical wording is that every stage of the biological development, and there is also another wording before us.

Senator BARTLETT. Well, my point in what I said, Mr. Chairman, is that I said I think that it can be worked out and I do not at all caution the committee not to discuss the legal detail. I think it is important. But, I think it is important to not get hung up on it. We can solve it. Senator BAYI. Senator Cook, do you have any questions?

Senator Cook. Let me ask you, Senator, there is one thing I think we have to decide on, in both the House and Senate, because we are talking about the fact that prior to the Supreme Court decision it has been estimated that there were approximately a million illegal abortions in the United States. When we get this in the Constitution, and you are a Member of the U.S. Senate, what kind of criminal penalties are you going to impose on society, and on whom are you going to impose them?

You said in your statement the Supreme Court does not concern itself with the issue of whether or not abortion is murder. Now, that indicates to me that you believe that it is. You have a right to that opinion. Now, once we have this amendment on the Constitution, if we ascribe to the theory that you have promoted here today, then the Congress has to take up the issue of what kind of penalties and what kind of criminal penalties and civil penalties do we impose on society as a result of this constitutional amendment. We just cannot put it on the Constitution and then ignore it, because if it is in the Constitution it then has to be enforced. What kind of enforcement do you recommend to this committee that we consider as a result of proposing to the Congress the constitutional amendment that says that this shall not be done? And what kind of criminal penalties do we impose on a doctor? What kind of criminal penalties do we impose on prospective mothers? Because I think we have to take this into consideration, and I think we as Members of the Congress have to realize that that is also our responsibility. We cannot disregard these penalties just because we say we will now have preserved life in the United States, and yet we know that illegally a million abortions are going to take place, because this new section to the Constitution is not going to stop illegal abortions from occurring.

Now, what do we do? What is our social responsibility, and what is your and my legal responsibility?

Senator BARTLETT. Well, I think the States which had anti-abortion laws for many, many years faced up to that. They had laws which

43-245-75-28

prevented the medical profession from becoming involved in it. It was illegal in States to perform abortions, and it was illegal to have an abortion. And at the time that the 14th amendment and other amendments to the Constitution were passed, it was the considered judgment of the people, and the considered law of the land that it was illegal. Now, the penalties were not severe. They were not capital punishment, but there were penalties, it was the law. I think this again should be gone into very carefully. But, I think it is important to realize that we are talking about thousands and thousands of human lives. I think if one takes the position that an abortion is a proper thing, a legal thing to do, a proper interpretation of the laws, then I think they would have to take the position that at the time they were in the early stage of their development as a fetus that it would have been proper

to snuff them out too.

Senator Cook. Senator, are you familiar with D. & C.'s?
Senator BARTLETT. Yes.

Senator Cook. You are?
Senator BARTLETT. Yes.

Senator Cook. Do you consider that an act of abortion?
Senator BARTLETT. No.

Senator Cook. You do not? Can you give me your interpretation of a D. & C., in relation to the basic concept of abortion so that I can figure out in my own mind how you make the distinction?

Senator BARTLETT. Well, I probably cannot give you a good medical

Senator Cook. Do not give me a medical definition because you and I are not qualified in that field, and we will both readily admit that. Senator BARTLETT. Well, I think this is prior to the permanent implantation, and it is prior to the effect of this law, as I interpret it, as it has been interpreted to mean.

Senator Cook. Senator, I understood you to define life as fertilization.

Senator BARTLETT. I think it begins then, yes.

Senator Cook. Now, I must tell you in all fairness it is this Senator's absolute impression that as a result of a D. & C. a fertilized egg is removed.

Do we have an exception to the Buckley amendment if, in fact, in your mind as a cosponsor D. & C.'s do not constitute abortive action? Senator BARTLETT. No. I said in answer to your question, it is my understanding that the Buckley amendment deals with fertilized eggs after implantation or at implantation, that it gets away from this argument over the 6 or 7 days from the time of conception, from the time of fertilization to the time of implantation.

And I grant that that is an area of disagreement, and an area of confusion. But it is my understanding that the Buckley amendment does not include that area of concern which you are raising, both of you are raising.

Senator Cook. Senator, let me tell you one place in effect where I think you and I disagree on just one small point. On page 4 of your statement, you have said, and I quote:

The fetus is obviously human-the joining of the female ovum and the male sperm. The fetus is a being because the fetus exists and has life-therefore, the fetus is a human being.

The sole purpose for performing an abortion is to deny life and existence to the human fetus for if there is not life in the human fetus, the human fetus aborts naturally.

What is your opinion in regard to a tubular pregnancy? A tubular pregnancy is life. I think medical science can specifically say that a life within the framework of a tubular pregnancy cannot be carried to term, and cannot be produced as a human. Therefore, how do we explain this when, in fact, we have a phenomenon called a tubular pregnancy, called life, and the existence of life within that framework which cannot be carried to term?

Senator BARTLETT. Well, we have a high percentage of pregnancies that abort naturally.

Senator Cook. No question about it. It is considered by medical science that there are as many as 30 percent natural miscarriages.

Senator BARTLETT. Yes. And at the same time I think that while life is there, there is a human being and the human being may not be perfectly formed, the implantation may not be in the proper place, and it may not be a workable, viable pregnancy. But I think certainly that what I said in those remarks is certainly true, that it is human, that it is a being. It is there.

The normal purpose of pregnancy is to abort or to eliminate the existence in the life of a human fetus. But in the debate that has taken place on this matter, there is doubt cast by the Supreme Court that there is life until so-called viability and it is obvious that it is human life from the very beginning.

Senator Cook. Thank you, Senator.

Thank you, Mr. Chairman.

Senator BARTLETT. Yes.

Senator BAYH. Thank you, Senator Bartlett.

Senator BARTLETT. Thank you, Mr. Chairman.

Senator BAYH. We are glad to have had you with us.

Senator BARTLETT. I would like to thank you for having me.

Senator BAYH. Yes, sir. Thank you for coming.

The next witness is the Honorable Thomas M. Rees, a Member of Congress from California.

Congressman Rees, we are glad to have you here with us this morn

ing.

STATEMENT OF HON. THOMAS M. REES, A U.S. REPRESENTATIVE FROM THE 26TH DISTRICT OF THE STATE OF CALIFORNIA

Mr. REES. Thank you very much, Senator Bayh. It is a pleasure for me to appear before you and Senator Cook.

I hope you will excuse my not having a written statement. I generally do not speak from scripts. Sometimes it hurts the spontaneity of my delivery.

I am here to testify against the constitutional amendment introduced by my good friend, Mr. Larry Hogan of the State of Maryland. His proposed constitutional amendment allows no exceptions-all abortions would be illegal from the time of conception. There is no exception for therapeutic abortions. There is no exception because of reason of the health of the mother.

I also oppose Senator Buckley's proposed constitutional amendment, although his does allow an exception when there is a medical emergency dealing specifically with the life of the mother.

I think that if either of these passed, there would be a throwback to many very terrible practices, and I think it would be a great detriment to this country. In 1967, California passed a therapeutic abortion act, which said that abortions were permitted under three circumstances: (1) because of the physical health of the mother; (2) the mental health of the mother; and (3) a pregnancy caused by rape or incest.

This law was approved by both houses of the legislature, and signed into law by Governor Reagan.

Between 1967 and 1972, several court cases found their way to the State supreme court, and in November, I believe, of 1972, the State supreme court handed down a decision saying that the three tests that had been identified in the therapeutic abortion bill were not valid. The court stated that a woman had a right to her own body and could make decisions concerning her own body, and that these three items were restrictions on her freedom under the 14th amendment. As you can see, the California decision was based on the 14th amendment and the right of privacy, and was very close to the decision handed down by the Supreme Court on January 22, 1973, in Roe v. Wade.

So, in California we have a case not of a court making a decision, but the case of a State legislature, two bodies, each voting for a bill, and the bill being signed into law by the Governor. And so, rather than spending time talking about the legal specifics of the Roe case, we should ask ourselves, why would a legislature pass such a law? And I think the answer is obvious.

Of every 10 abortions performed today in California under the case law of the U.S. Supreme Court and of the State Supreme Court, it has been estimated that 7 of those abortions would have been performed before 1967. They would have been illegal abortions and, of course, Senator Cook, anyone who conspired, who had anything to do with the commission of the felony, that is, with performing an abortion, would be subject to the felony-murder rule. And, of course, they would be subject to the courts, and I suspect they would be subject to capital punishment if the State had capital punishment.

So before 1967 we have seven abortions being performed illegally in comparison to the 10 abortions being performed legally here in California today. Since 1967, California had maternal deaths of something like 2.9 per 10,000. In 1971, after the passage of the therapeutic abortion act, the State had a maternal death rate of 1.6 per 10,000.

I was in the State legislature during a good part of this time. I was elected to the U.S. Congress in 1965. I was on the Appropriations Committee in both the State Senate and the State assembly; in the State assembly, I was chairman of the Appropriation Subcommittee that dealt with State buildings and, as a result, I visited most of our State institutions, whether they were mental institutions or prisons, and I became very interested in the problem of abortions.

As a member of the State legislature, I had people approach me several times saying, "What can we do, we cannot have this child for

one reason or another?" And I could not give them any advice because if I did, I would be breaking the law.

If any doctor in California performed an abortion, he would immediately lose his right to practice in the State of California. And so, I saw tragic cases of young women, their bodies torn and bleeding because of an illegal abortion performed in some motel or a kitchen table. Many of them did not make it; they died. They died young-16, 17, 18. And that is no way to go.

I have also seen what has happened to children who are unwanted. We have something called child abuse. And if you talk to any doctor, or any hospital, you will find that every year hundreds of children come in that are beaten up, their brains damaged, their limbs broken, because they were not wanted. They were not wanted by the mother; they were not wanted by the father.

If you look at the records of any mental institution, if you look at the records of any penal institution and talk to the prison psychiatrist, or the psychiatrist at the mental institution, and you ask: "What about the people you have here, what do you see in their records, were they wanted by their parents?" and in too many cases, they were not wanted by their parents. They were thrown out by their parents. They learned one law, and that was the law of the street. They did not have any love from their parents. And they became wards of the State, committed crimes, or they went insane.

We also have problems of abandoned children, children just left, either just after birth or maybe a year or 2 years later, but eventually abandoned. And they, too, find themselves in some type of State home, either a foster home or another institution.

I feel that if a woman in the first trimester of pregnancy does not want to have a child, then that woman has every right not to have that child. It is easy for men to talk about pregnancy. It is easy for men to talk about the right of life. But if one is the woman with a child growing in her body, and that woman has a feeling she cannot mentally or physically cope with that fact, then I think she has the right not to have the child. I think the Court decision is absolutely correct in discussing the right of a woman under the 14th amendment of the Constitution to her body and the privacy of her body.

Now, I have been getting a lot of letters on this subject, so I decided to poll my district. I have a district of good, God-fearing middleclass people. They are intelligent. Their educational level is high. Many of them are business and professional people.

I asked the question:

A recent United States Supreme Court decision legalizes abortions which are performed by qualified physicians during the early stages of pregnancy. This allows an abortion to be a decision made by a woman and her doctor, rather than regulated by the government. Do you favor the Court ruling?

Yes, 85.6 percent; no, 9 percent; and no opinion, 5 percent. My constituents are good people, and I think they believe very deeply in their religions, and they believe very deeply in their children and their homelife, and the quality of life in California and the United States.

Now, I think this proposed constitutional amendment is potentially a very dangerous one, because I find that the American people are very deeply split on this issue. In the same way that I do not think the State