From .......... GOVERNING AMERICA - An Insider's Report

From the White House and the Cabinet

By Joseph A. Califano, Jr.

81 .................. ABORTION

Returning from Thanksgiving recess, the House leadership was determined to press for a compromise . They did not want the Christmas checks of federal employees to be short. Appropriations Committee Chairman Mahon called me on November 29 to say he had decided to take the leadership completely away from Flood who ardently opposed federal funds for abortion.

"He's just implacable on the subject," Mahon said, distraught. ''I'm retiring, but this kind of conduct is a disgrace to the House. We all look asinine."

In secret negotiations with Senator Brooke, Mahon eventually produced the compromise on December 7. The House voted twice within less than four hours. The first time members rejected a Mahon proposal and voted 178 to 171 to stand by their strict position against all funding for abortions except those needed to save the mother's life. Minutes later, Mahon, dejected but determined, won speedy approval of new language from the Rules Committee and rushed back to the House floor. The House reversed direction and adopted the new and relaxed standard,181 to 167. Within two hours, with only three of its hundred members on the floor, the Senate acceded to the House language and sent the measure to President Carter for his signature. Under the measure, no HEW funds could be used to perform abortions,

''except when the life of the mother would be endangered if the fetus were carried to term, or except for such medical procedures necessary for the victims of rape or incest, when such rape or incest has been reported promptly to a law enforcement agency or public health service; or except in those instances where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term when so determined by two physicians."

Senator Brooke described the outcome as

''not really acceptable to either side, but it makes some progress."

Representative Hyde said that the measure

''provides for the extermination of thousands of unborn lives.''

Senator Javits called the action

"a major victory for women's rights."

ACLU Chairman Dorsen characterized it as

''a brutal treatment of women with medical needs for abortion."

Any relief I felt at seeing at least some resolution was lost in the knowledge that the protagonists would rearm to battle over the regulations I had to issue.

As SOON as President Carter signed the $60 billion appropriations bill on December 9, it landed on my desk, for the final provision of the compromise language stated:

"The Secretary shall promptly issue regulations and establish procedures to ensure that the provisions of this section are vigorously enforced."

82 ..................... GOVERNING AMERICA

The antagonists turned their attention to me.

Magnuson and Brooke wrote and called with their permissive interpretation. Robert Michel, ranking Republican on the Appropriations Committee, wrote with his strict view.

Dan Flood called and other members Ñ and their even more aggressive staffs Ñ pressed for their interpretation of words such as

"medical procedures,'' "promptly reported," "severe and long-lasting physical health damage," and "two physicians."

There was no way in which I could avoid becoming intimately involved in making key decisions on the regulations. I decided personally to read the entire 237 pages of self-serving and often confused congressional debate and to study the ten different versions of this legislation that were passed by either the House or the Senate.

To assure objectivity, to balance any unconscious bias I might harbor, and to reduce my vulnerability to charges of personal prejudice, I assigned the actual regulation writing to individuals who did not share my strong views about abortion and, more importantly, who stood up for their own views and did not hesitate to tell me when they thought I was wrong. The bulk of the work was done by Richard Beattie, the deputy General Counsel of HEW, and HEW attorneys June Zeitlin and David Becker, all of whom opposed any restrictions on federal funding of abortions. I also asked the Attorney General to review independently the regulations we drafted at HEW. Once they were in effect, I would establish a detailed auditing system to assure compliance and fulfill the congressional mandate

"to ensure that the provisions of this section are rigorously enforced."

Finally, I decided not to consult the President about the regulations.

Carter had enough controversial problems on his desk without adding this one. My responsibility under the Constitution and under our system of government was to reflect accurately the law passed by the Congress. Neither Carter's personal views nor mine were of any relevance to my legal duty to ascertain what Congress intended and write regulations that embodied that intent.

In pursuit of my overall goal of cooling the temperature of the debate, I wanted to issue the regulations more "promptly" than anyone might expect. Not relying solely on my own reading of the congressional debates, I asked the lawyers for a thorough analysis of the legislative history. We then spent hours discussing and debating what the Congress intended on several issues, frustrated by the conflicting statements in the congressional record. We determined that for rape and incest victims, the term ''medical procedures'' as used in this new law now clearly included abortions; that a "public health service" had to be a governmental, politically accountable institution; that short of fraud we should accept physician's judgments as to what constituted

"severe and long-lasting physical health damage";

- END QUOTE -

GOVERNING AMERICA - An Insider's Report

From the White House and the Cabinet

By Joseph A. Califano, Jr.

Published by Simon and Schuster 1981

ISBN 0-671-25428-6