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and restrictions upon State action. The Justices determined that the right of privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”
Many with whom I have talked even recently still do not understand that the Court decision prohibits State regulation of abortions only during the first three months of pregnancy. Beyond the first trimester, the State may regulate abortion procedures to preserve and protect maternal health; and beyond the second trimester, the State may probibit abortion in all cases except those where the life or health of the mother is endangered.
The question as I view it is not an absolute one of pro-Court-decision versus anti-Court-decision, or of concern for human life versus lack of concern. The fact that women do desire abortions and will seek them out even under illegal and dangerous circumstances cannot be ignored or denied. Whether individuals, groups, or governments approve or not, this is the nature of the real world we live in. Rather, the question is whether the government will force those women who desire abortions, and whose personal moral and religious views do not prohibit them, to seek abortions under illegal and potentially abominable surgical conditions.
Furthermore, legalized abortion allows for far greater amount of personal counseling than was possible before the Supreme Court ruling. We know that prior to that decision, about one million abortions were performed annually in the United States. We also know that an illegal abortionist will seldom counsel a woman against abortion. If an expectant mother feels free to consult her family physician, however, that doctor might well counsel against abortion although the abortion would be legal.
The Court's ruling does not require any woman to undergo an abortion if she does not so choose; the ruling allows a woman a personal choice. The same cannot be said by laws prohibiting abortion; such laws deny freedom of choice. Although I view abortion as the least desirable means of birth or population control, and although I wish that no abortions were ever desired or performed, I cannot in good conscience work to overturn the Supreme Court ruling.
I am well aware that many people are in strong disagreement with me on this issue, and I believe that the individual rights of those people should be protected as well. Consequently, I have supported and will continue to support legislation to protect the rights of those who because of religious belief or moral conviction oppose abortion. I do not believe that any medical personnel should be required to perform abortions if personal or religious beliefs are in conflict.
The decision to terminate a pregnancy, at least in its earliest stages, should remain between a woman and her physician, and the government should interfere as little as possible. This has been my position consistently during my years of public office, and it remains my position now.
Although I personally view the central issue in the abortion controversy to be the right of each woman to control her own reproductive -life, there are a number of peripheral issues which indicate that the Supreme Court ruling of January 1973 has resulted in other types of social benefits. Improvements to our society with respect to health, child welfare, equal rights, and economy are evidence by available information.
Because abortion has been legal nationally for only one year and information on the national impact of the new law is not yet available, existing statistics are mainly from New York and California, where new abortion laws took effect in 1968 and 1970 respectively. Although we cannot assume that the experiences of two States will be duplicated nationally, changing trends are apparent.
The number of women admitted to hospitals for post-abortion treatment has declined, In one San Francisco hospital, such cases decreased by 68 percent in two years following abortion reform, Abortion complication cases in one Los Angeles facility declined hy 88 percent in one year. And statistics from ten New York City hospitals indicate a 52 percent drop in abortion complications in the first three years of legalized abortion.
In my home State, the Illinois General Assembly 1969 Family Study Commission Report showed that the Cook County Hospital alone admitted approximately 4,000 women annually from 1962 to 1968 for medical care following criminal abortions; in April and May of 1973, however, the Chicago Board of Health found less than five such cases per month at the same facility,
Abortion-caused maternal deaths have declined as a result of legalized abortion, In California in 1967, there were 20 such deaths per 100,000 live births. In 1971, after liberalization of the law, there were only two abortion-caused maternal deaths per 100,000 live births. In New York City, only four maternal deaths from abortion were reported in 1972–73, while 22 had been reported in 1970.
Although abortion has been a major cause of maternal mortality, many women, who in the past did not have the alternative of legal abortion, were actually endangered because of their pregnancies. Young teenage girls, women nearing menopause, women who have had many or problematic pregnancies, and women with medical handicaps all are at risk during pregnancy and childbirth. The number of women who die from all of these causes has also dropped since the liberalization of abortion laws. The New York City Department of Health reports a 51 percent decline in maternal deaths from 1969 to 1972, and in California, a 45 percent decline has been reported in the four years following abortion reform.
The rate of infant mortality has also decreased markedly. The New York City Department of Health reports a drop of approximately 20 percent in this figure from 1969 to 1972.
The number of babies born out of wedlock has dropped. In the first year of new abortion laws in California and New York, the out-of-wedlock birthrate declined 16 percent and 12 percent respectively, completely reversing the trend of earlier years of ever-increasing numbers of illegitimate births.
Fewer babies have been abandoned or given up for adoption. In one New York institution, there was a 56 percent decline in such cases the year following abortion reform. And the number of New York children placed in foster homes dropped 41 percent in two years after the law was changed.
The Supreme Court decision has increased equality of opportunity between the rich and the poor. It has long been an alternative of those women who can afford to travel to countries or States (or the Nation's Capital in Washington, D.C., for that matter) with less restrictive laws. Legal abortion was thus available to the wealthy although it was a financial impossibility for the poor. The Supreme Court ruling has to a great extent eliminated this discrimination based on economic status.
Millions of tax dollars have been saved by providing availability of abortion to women on welfare. In 1971 in California, the state medical welfare program paid $17.9 million for abortions for women on welfare. If none of those abortions had been performed, the cost to taxpayers would have been $59 million for health care during pregnancy and immediately after birth alone, beyond which would have been the continuing payments for the additional children on welfare rolls that could have run into hundreds of millions of dollars.
From 1970 to 1972, the national fertility rate for welfare mothers declined by 2.1 percent. In New York City, however, where abortion reform had taken effect, the fertility rate for welfare mothers declined by more than three times as much.
I bring these statistics to the attention of the Subcommittee because they are worthy of careful consideration. The abortion issue is a controversial and highly charged one: I believe it is imperative for us to be as fully aware of available data as possible and to keep our minds open to the moral, physiological, psychological and economic issues involved, in that order. Only in this manner, will we be able to view the abortion issue rationally and responsibly. As we debate what is "right" and what is "wrong" we must also be understanding and respectful of opposing views earnestly held by others.
STATEMENT OF SENATOR EDWARD W. BROOKE
Last year, in perhaps its most controversial decision of the past decade, the United States Supreme Court ruled that a woman has a constitutional right to terminate her pregnancy under certain circumstances.
The decision, instead of resolving the abortion issue, has percipitated an intensification of an already heated debate. Opponents and proponents of the decision have flooded Capitol Hill with hundreds of thousands of letters. This attention has focused primarily on the various proposed amendments to the Constitution, designed to overturn the Supreme Court decision.
Because I have many reservations concerning these amendments, I cannot in good conscience support the efforts to enact them.
In order to discuss the constitutional amendments, it is first necessary to understand precisely what the Supreme Court decided. In the companion cases, Roe v. Wade, and Doe v. Bolton, the Supreme Court held: (1) that during the first trimester (usually meaning the first 13 weeks of gestation), the decision to have an abortion must be left solely to the woman and her doctor; (2) that during the second trimester, government regulations “reasonably related to maternal health", such as licensing of the facility and its personnel, are permis
sible; and (3) that after the 26th or 27th week of pregnancy (when the fetus is potentially capable of life outside the mother's womb) anti-abortion laws may be passed to protect the state's "interest in the potentiality of human life", but that abortion prohibitions must make exception for the preservation of the woman's life and health.
Regrettably, confusion still exists as to what the Supreme Court actually allowed. For example, some contend that the decision authorizes "abortion on demand”. This is not so. The Court held that based on her right to privacy, a woman has a qualified right to have an abortion. But, this right, as outlined above in the summary of the Court's holdings, is dependent on a number of factors.
Secondly, the Supreme Court decision does not force anyone to do anything that would be inconsistent with one's religious or personal beliefs. In fact, the essence of the Supreme Court decision is freedom of choice. The government assumes a neutral position. It forces no one to have an abortion, nor does it compel anyone to perform an abortion.
On the other hand, I fear that the proposed constitutional amendments might preclude individuals from acting in accordance with the dictates of their consciences. In these amendments the federal government assumes an affirmative role. It can be argued that the religious or personal beliefs of some would be imposed upon others. If so, I believe that these amendments might endanger a central Judeo-Christian tenet-freedom of conscience. Such a result might also be violative of the spirit of the First Amendment's Freedom of Religion Clause. I am apprehensive about endorsing any measure that might threaten one of our most precious heritages.
In considering whether one should support one of the proposed amendments, it is also important to ask a practical, realistic question : will this amendment stop abortions? Available evidence suggests that passage of an amendment would merely restore the practice of millions of illegal abortions—many under backalley conditions that have prevailed until recently. This would mean a reutrn to high maternal death rates, uneqal treatment of poor women, and an increase in abandoned, abused and unwanted children. In addition, severe laws would again be permitted with criminal penalties for women who feel they must prevent childbirth. We must ask ourselves whether approval of such a constitutional amendment would create greater problems than it would solve.
Another consideration is my reluctance to use the constitutional amendment process to solve the social problems that beset our country. In recent times there seems to be a disturbing trend to resort to a constitutional amendment as a panacea. In addition to threatening the independence of the Judiciary, I believe that this tendency distorts the concept of our Constitution. It was not meant to be the repository of every proposed solution to every social ill.
In addition to the aforementioned factors, one other major reason contributes to my disinclination to endorse a constitutional amendment. Too many important and relevant questions remain unresolved. As the recent abortion hearings before the Senate Subcommittee on Constitutional Amendments amply demonstrated, many issues deserve to be thoroughly studied. Included would be consideration of the legal status of the unborn child, the intention of the framers of the Fourteenth Amendment regarding the meaning of a "person", the origins and limitations of the “right to privacy", the rights of the father of the unborn child, the medical and psychological consequences of abortion, etc. If the subject of abortion is to be fully and fairly treated, all these issues must be comprehensively examined.
The cumulative effect of all these reservations is to make me quite dubious about the merits of these constitutional amendments. The available evidence appears to indicate that passage of such an amendment would only exacerbate an already difficult situation.
The abortion question is truly agonizing. I am fully sympathetic to the views expressed by individuals on both sides of the issue. I do hope that all involved in the debate will remain tolerant of one another's beliefs. Unfortunately, on occasion, the debate has been marked by uncommon bitterness.
Although we may believe our causes to be right and just, we must still respect differences of opinion—especially on an issue that embodies so many legal, moral, medical, religious, and sociological factors.
Senator Bayh. Our next witness is the Honorable Lawrence J. Hogan, a Congressman from the State of Maryland.
STATEMENT OF HON. LAWRENCE J. HOGAN, A U.S. REPRESENTA
TIVE FROM THE FIFTH DISTRICT OF THE STATE OF MARYLAND, ACCOMPANIED BY WILLIAM J. HOGAN, M.D., OBSTETRICIAN/ GYNECOLOGIST
Mr. Hogan. Thank you, Mr. Chairman. My name is Lawrence J. Hogan and I am a Member of Congress representing the Fifth District of Maryland.
I have introduced a human life amendment in the House of Representatives. I introduced H.J. Res. 261 on January 30, 1973. Senator Helms' proposed amendment is identical to mine.
It seems to me, Mr. Chairman, that these hearings should address themselves to two questions: When does life begin?; and once it has begun, what legal rights does it have?
Mr. Chairman, if you would forgive me, I have with me my brother, Dr. William J. Hogan, who is an obstetrician and gynecologist, and my medical counsel.
Senator Bayh. Glad to have both of the Hogans present.
Mr. Hogan. As I said, Mr. Chairman, it seems to me that these hearings should address themselves to two questions: First, when does life begin?; and once it has begun, what legal rights does it have?
It is my position that human life begins at conception and destroying that life through abortion is killing a baby. That is the basis and crux of my opposition to it and, I believe, the ultimate basis of all opposition to abortion.
An argument often raised to support legal abortion is that restrictive laws are broken. This argument is inconsistent and is not based on logic or jurisprudence. Virtually all of our laws are broken, and that is hardly a legitimate reason for repealing them.
Twenty years ago few would have questioned that abortion is killing a baby. Now one is called upon to defend that statement. When there is a doubt-as the public has been led to believe-whether or not human life exists, the moral course, it seems to me, should be to err on the side of protecting that life.
Assuming for the purposes of argument that there is some doubt, the moral course, it seems to me, should be to err on the side of protecting that life.
If you are a hunter and you see something move behind a bush, and you think that there is a 50 percent chance of its being a wild boar, and a 50 percent chance of its being a child, should you not refrain from shooting? If society, buttressed by law, upholds the right of the child behind the bush to be safe from the assault of a hunter, why does not the law give a similar benefit of the doubt to the child in the woml?
Until 15 years ago our laws did, in fact, give this benefit of the doubt. And there was less medical proof then than there is now that the unborn child is a human being. If it is not a human being, what is it?
The woman seeks an abortion because she does not want to have a baby. So, if what is in her body is not a baby, then what could it possibly be?
So let us take a look at what it is. Physicians tell me that in the first month of life, growth and development are rapid and dynamic
with the central nervous system, the brain, seeing its most important growth spurt, and the rhythmic contractions of the heart beginning: The primitive skeletal system has completely developed by the end of the eighth week, and the electroencephalogram has detected brain waves as early as 43 days.
Senator Cook. Congressman, my copy says 6 weeks. Does your's Mr. Hogan. I understand that there is a dispute on that, so I decided to take the latter figure to prevent any possible confusion or an overstating of my case.
I might say, Mr. Chairman, that I submitted for the committee a comprehensive statement, and what I am doing now is summarizing it.
Senator Cook. All right.
Mr. HOGAN. During the sixth and seventh weeks, the nerves and muscles begin working together for the first time, and the lips become sensitive to touch. And when gently stroked, the child responds.
By the seventh week of life, the child's shape and form are unmistakably human. He now has all of the internal organs of the adult; the stomach produces digestive juices, the liver manufactures red blood cells and the kidney is eliminating uric acid from the blood. His arms are still very short but hands with fingers and thumbs are recognizable, and the legs have knees and ankles and toes.
From this point in development, until age 25 to 27 years old, when full growth and development is complete, the only major changes will be in the size and sophistication of the functioning parts.
Fingerprints, which will never change throughout his life, develop at 8 weeks. The eyelids and palms of the hand become sensitive to touch about 812 weeks. At this point if the eyelids are touched, the child squints. If the palms are touched, the fingers close into a small fist.
The sex hormones have been identified as early as 9 weeks. At 10 weeks, hormone growth is detectable. At 12 weeks the thyroid and adrenal glands have begun to function. Also at 10 weeks the obstetrician can detect the child's heartbeat.
By the end of the third month, or the first trimester, the unborn child has become very active. He can now kick his legs, turn his feet, curl and fan his toes, make a fist, move his thumb, bend his wrist, turn his head, squint, frown, open his mouth and press his lips tightly together. He can swallow and drink the amniotic fluid that surrounds him. Inhaling and exhaling respiratory movements begin to move fluid in and out of his lungs. And thumb sucking is first noted at this age.
He has vocal cords, but cannot cry because he is not strong enough. The fingernails appear and he starts to urinate. By this time, every child shows a distinct individuality in his behavior and the words of noted behaviorial psychologist Dr. Arnold Gesell I think are significant on this point.
He says, and I quote: “By the end of the first trimester, the fetus is a sentient moving being. We need not pause to speculaté as to the nature of his psychic attributes but we may assume that the organization of psycho-somatic self is now well underway."
The child grows very rapidly during the fourth month of life. His weight increases six times and he grows 8 to 10 inches in length.