Senator HELMS. Yes, conceivably, in a remote sense, although again, Mr. Chairman, I stress the fact that my amendment does not envision this exception. I think it is fair to say that this is sort of an academic question. Abortions in the event of incest were never challenged before the Roe case, if my information is correct.

Senator BAYH. I must say I respectfully cannot see how it is academic, inasmuch as the way I read the language of previous amendments which you had introduced with some of your colleagues, that there could be no abortions for rape or incest. Did I misread that? Senator HELMS. You may have misread the intent.

Senator BAYH. I do not remember any dialogue that you and I had. I do remember having dialogue with some of the church leaders

Senator HELMS. The point is, you have to start somewhere. You are correct in your statement and in your assessment. Our immediate concern as far as this Senator is concerned is to get a dialogue going and get some action taken based upon the best judgment of those who sincerely feel that this is a matter of conscience, which I do, and I am sure the distinguished Chairman and members of this distinguished subcommittee do.

Senator BAYH. I know, Senator Helms, you cannot really look into other people's minds, but there have been large numbers of groups representing large numbers of people who have supported the right to life amendment or such an amendment as S.J. Res. 6. Have you consulted with them whether abortions should be permitted in the case of rape or incest?

Senator HELMS. No, I have not. I would not want to speak for anybody else.

Senator BAYH. What about your feelings, sir, relative to whether abortions could be permitted by a State legislature or Congress in the event of the kind of examination that can detect Tay-Sachs genetic disease? Would you say that that could be permitted under this amendment?

Senator HELMS. That is difficult to say. If you are going to apply the Fourteenth Amendment and due process and legal protection, if you include that, I would say yes, if the life of the mother is at stake. Senator BAYH. I am not too sure what that answer is. Is that yes or no?

Senator HELMS. If you would apply the due process and equal protection in evaluating this, sure. That is as clear an answer as I can give you.

Senator BATH. Would you interpret the language of the resolution to permit a state to legalize abortions for Tay-Sachs?

Senator HELMS. I would have to say what I said before. If the unborn child is given due process and equal protection.

Senator BAYH. I assume that the unborn would be given due process and equal protection. The question has to do with the mother's due process and equal protection in the event of Tay-Sachs.

Senator HELMS. That is exactly the point. These questions are going to have to be resolved, as the Chair well knows.

Senator BAYH. I thought perhaps as one of the authors of this, you could give us at least your thoughts, yes or no, on this. It is one thing to say we want action, but we need to know which direction we are

going, how far this would go, and what would be accomplished. I do not want to proceed any further if you do not want to comment on this.

Senator HELMS. I do not know how to give you a more definitive answer, Mr. Chairman, except to say that I certainly cannot write an amendment or a law to cover all cases. I still say that each case must be handled on the basis

Senator BAYH. Let me say with all respect, that is one of the things that really worries me about this. I have developed a much greater respect for life-and I have come to believe that we are talking about life-but when you and I as members of the Congress of the United States are opposed to the individual States and State legislatures in a constitutional amendment, we have to resolve this matter as it would apply to all cases. We cannot say that we are just going to throw this out there and let the States decide. At least I cannot until I am certain how this is going to affect all cases.

We touched on three here: rape, incest, and Tay-Sachs. I think these are very difficult cases involving the Edelin situation of a viable child. To me that is relatively a simple case. That is why I wanted to get your thoughts on that. Have you determined in your own mind, Senator Helms, how this amendment which establishes life is entitled to full protection of the Constitution after the point of fertilization? Would an amendment affect the use of certain contraceptive devices, such as the IUD or the morning after pill?

Senator HELMS. I do not think it would have any application to contraceptive devices or drugs. Getting back to your previous question, as a general principle, no, sir, I do not favor abortions except generally to save the life of the mother. I do not share the Chairman's stated view. I think the States ought to have, should have concurrent responsibility and authority in this.

Senator BAYH. I concur if we pass one. But I do not think our Founding Fathers ever intended the responsibility of the Congress to be just one of referring constitutional questions on to the State legislatures. Is that the way you interpret it?

Senator HELMS. I did not say that. I am simply saying that they should have concurrent responsibility just as they had before Roe v. Wade.

Senator BAYH. I think we have a responsibility to determine what is right or wrong and vote our consciences before the States have a crack at it. I would like to pursue this again. The reason I think that your opinion is particularly important and valuable to us here is you are one of the early sponsors of this, and I am sure you have given nore than the average amount of study into what is going to happen. You say you do not think your amendment would have any impact on the use of various birth control devices.

Senator HELMS. It could have some impact, yes, if those devices were abortifacient rather than contraceptive.

Senator BAYH. Do you think this will prohibit women from using the IUD or the morning-after pill?

Senator HELMS. Yes, if medical science could prove that they are abortifacients. As a practical matter such specific problems would be handled by legislation pursuant to the enforcement clause. Again, as a practical matter, I can't see prosecutions occurring under my amend

ment in such cases. You would never even have a corpus delecti, so to speak.

Senator BAYH. A moment ago you said you did not think it would have any impact.

Senator HELMS. I would be glad to have the lady read back my answer. You asked about contraceptives, but gave as examples items which are more likely to be abortifacients.

Senator BAYH. That is all right. You can revise the record any way you want to. I just want to get your thoughts. Dr. Hellegers and others have suggested that the way the IUD and certain other devices act on the woman's womb is to create a condition which would prohibit implantation. If you are guaranteeing life from the point of fertilization, which is prior to implantation, it would seem to me that any device or substance that was used by the mother to prohibit that life from continuing through implantation would be in direct violation of the constitutional prohibition.

Senator HELMS. Mr. Chairman, let me say I do not pose as any expert on IUD's. There is serious question about them, as you know, as to whether they actually abort. Aside from this question here, there is a great deal of evidence that they should probably be taken off the market. My distinguished colleague from North Carolina, Mr. Fountain over in the House of Representatives, is conducting exhaustive studies of this. I wish I knew more about it from a medical standpoint, but I do not.

Senator BAYH. I wish I did too. Unfortunately, I am in the position-or fortunately, as the case may be of being in this role of having to take what I do know and try to act on this constitutional amendment.

Do you think it is a proper role of the Federal Government to tell women and families what kinds of birth control devices they may and may not use?

Senator HELMS. No, if you're talking merely about contraception. On the other hand, safety and efficacy are areas where the Federal Government is already permitted to act.

Senator BAYH. Thank you, Senator. You have been very kind.
Senator Fong?

Senator FONG. In reading your amendment, it seems that your amendment is very rigid. It reads as follows. You say: "With respect to the right of life guaranteed in this Constitution, every human being subject to the jurisdiction of the United States or of any State shall be deemed, from the moment of fertilization, to be a person entitled to the right of life."

Yet, in your discourse here you say that it would allow exceptions. In a reading of this resolution, it seems as though there are no exceptions. Once fertilization has been consummated, there is a guarantee of life.

I could understand the quandary you are in. Once you say there should be exceptions, then you do not know where exceptions should stop.

Senator HELMS. Really I only have one exception that I think the courts would permit, that is to save the mother's life.

Senator FONG. In this case here, you do not say that. Once there is fertilization, there is a guarantee of life.

Senator HELMS. Well, sir

Senator FONG. And it pinpoints it to fertilization. There is something here that there is due process and guarantee of life also to the mother.

Maybe you can argue that the mother's life is also paramount.

Senator HELMS. Well, this is an amendment that takes account of the right of self-defense, just as the fifth amendment already does. Abortion to save the life of the mother has been treated, in a way, as a form of self-defense, as far as I can discern.

Senator FONG. You believe that even with these rigid words in your amendment that the mother's life could be considered?

Senator HELMS. Yes, sir, it has always been considered, even before Roe v. Wade. My amendment puts us back to the same position.

Senator FONG. With such exceptions, and it will go back to the same court issue. That is what it really will mean, will it not?

Senator HELMS. I have to go back to my original statement. My amendment would simply take us back to where we stood before Roe v. Wade, when abortion to save the life of the mother was acceptable under due process of law. The only exception that I envision the courts allowing would be abortion to save the life of the mother. Senator FONG. Rape and incest, you would not allow that exception? Senator HELMS. You get into a lot of questions on that, but I am perfectly willing to let the States and the Congress judge this concurrently as having the current authority and responsibility. Now you get into the question of rape-provable rape. How many cases are provable? You open up a Pandora's box. Was abortion in the case of rape a problem before Roe v. Wade? I am trying to keep the amendment as simple as possible.

Senator FONG. I understand that you want to keep it as simple as possible. Yet, you have a lot of difficulties. But a difficulty also comes after fertilization. If there is any disturbance at all of the fertilized egg, that would be prohibited even 1 day, an hour, 10 minutes after that fertilization, you would stop that with this amendment. Senator HELMS. Do you mean, would I stop it?

Senator FONG. Your amendment would stop it.

Senator HELMS. Yes.

Senator FONG. Nothing could disturb this fertilization, even 10 minutes, an hour, or a day after.

Senator HELMS. The Senator is correct.

Senator FONG. Thank you.

Senator BAYH. Senator, could I clarify the record here because I thought you told me that you would permit the States and the Congress to make exceptions for rape and incest. I am not too sure where

we are.

Senator HELMS. We are talking about subsequent to the ratification of this amendment, if it should be ratified. I think that this problem of exceptions can be worked out by the States and the Federal Government.

If the amendment includes every conceivable exception, Senator, the problems are just insurmountable.

Senator FONG. That is the difficulty of this amendment.

Senator BAYH. Senator, I have been involved in a number of constitutional amendments, as you know, as my distinguished col

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league from Hawaii has, and there is no way that we can pass an amendment that has more flexibility after it is passed than it does while we are considering it. It either permits abortions in cases including rape or incest, the difficult Tay-Sachs situation, or it does not. I realize that is up to the court ultimately, but as one of the authors, do you interpret it as permitting exceptions to be made which would permit abortion in the event of rape, incest, or any defects?

Senator HELMS. Just let me raise a question to you. Is abortion in the case of rape satisfactory or allowable under the 14th amendment? We do not know. There has been no case.

Senator BAYH. You see, Senator, by passing this amendment, this comes after the 14th amendment. We are writing legislative history by every word we say here. That is why your thoughts are particularly important, because you are one of the consponsors of this.

Do you have any further thoughts?

Senator HELMS. No, sir.

Senator BAYH. Thank you very much.
Senator FONG. Thank you very much.

Senator BAYH. Our next witness is Prof. Robert M. Byrn, Fordham University of Law.

I realize you have a rather lengthy statement. Would you care to summarize?

Mr. BYRN. I was going to ask, Mr. Chairman and Senators, that the statement be included in the record, along with two "Law Review" articles that I have submitted in support of it. Then I would like to read my introduction to the statement and then go down the table of contents in the form of questions and answers that have been asked and briefly summarize that and make myself available to you. Senator BAYH. Fine.

[The prepared statement of Robert M. Byrn, Esq., follows:]

STATEMENT OF ROBERT M. BYRN, ESQ., PROfessor,
FORDHAM UNIVERSITY LAW SCHOOL

Introduction

As I understand it, today's hearings are concerned with the "secondary effects" of the constitutional amendments which have been proposed in response to the Supreme Court's abortion decisions of January 22, 1973. I have dealt with some of these matters in two law review articles which I take the liberty of subsubmitting with, and as a part of, this statement.1

There are two type of amendments:

(a) The so-called "States' Rights Amendments" which purport to invest in the legislative process the power to regulate, permit, or prohibit abortion, and (b) The Human Life Amendments (S.J.R. 6, 10, and 11), the purposes of which are (i) to assure Fourteenth and Fifth Amendment personhood, vis a vis the right to live, to unborn children and to other unwanted human beings who might be endangered by the jurisprudence of Roe v. Wade and (ii) to protect against the exclusion of the lives of any class of human beings, qua class, from the protection of the law which in this context will almost invariably mean the criminal law. (The fundamental goal of a Penal Code is that "the people. may be secure in their persons, property, and other interests. . . ." (S. 1, 94th Congress, 1st Sess., 1/15/75).

It must be remembered that the Human Life Amendments are concerned with the fundamental right to live and with the protection of that right against deliberate invasion. There is no intent to intrude upon other areas of the law nor do I see how a rational reading of the Amendments can unearth a different intent.

1 An American Tragedy: The Supreme Court on Abortion, 41 Fordham L. Rev. 807 (1973); The Abortion Amendments: Policy in the Light of Precedent, 18 St. Louis L. J. 380 (1974).