From .......... GOVERNING AMERICA - An Insider's Report
From the White House and the Cabinet
By Joseph A. Califano, Jr.
83 ................ ABORTION
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";
that the two physicians whose certification was required must be financially independent of each other, and that the rape or incest victim need not personally make the required report to public authorities. We resolved a host of other issues as best we could against the backdrop of the heated and confusing congressional debate. They were wearing days, because I felt the law was too permissive, and its provisions were in conflict with my own position. I revisited many decisions several times, concerned, on overnight reflection, that I had bent too far to compensate for my personal views and approved inappropriately loose regulations, or that I was letting my personal views override congressional intent.
By far my most controversial determination was to define "reported promptly" in the context of rape and incest to cover a sixty-day period from the date of the incident. Even though the Attorney General found the judgment "within the permissible meaning of the words within the Secretary's discretion," there was a storm of controversy over this decision.
There were widely varying interpretations on the floor of the House and the Senate. Most of the legislative history on the Senate floor was made by pro-abortion Senators Magnusun and Brooke. They spoke of ''months'' and ''ninety days'' to make the period as long as possible. On the House side, Mahon and other proponents of the compromise spoke of ''weeks'' and "thirty days" as they cautiously maneuvered this difficult piece of legislation to passage. On the floor of Congress, pro- and anti-abortionists could express their views and protect their constituencies. But I had to select a number of days and be as certain as possible that it would stick. After extensive internal discussion and spirited argument within the department, I concluded that a sixty-day reporting period was within the middle range of the various time limits mentioned in the debates. The dominant issues during debate were access to abortions and prevention of fraud. The sixty-day period was long enough for a frightened young girl or an embarrassed woman who might not want to report a rape or incest, or one in shock who psychologically could not, to learn whether she might be pregnant and to make the report to public authorities. Sixty days was also prompt enough to permit effective enforcement of the law.
I was ready to issue the regulations during the third week of January 1978. On Monday, January 23, the annual March for Life to protest the 1973 Supreme Court abortion decision was scheduled to file past HEW en route from the White House to the Capitol. I decided to delay issuing the regulations until later in the week. The participants were outraged at the House Senate compromise.
84 ..................... GOVERNING AMERICA
As march leader Nellie Gray saw it,
"The life issue is not one for compromise and negotiation. Either you're for killing babies or you're against killing babies."
I issued the regulations on January 26. Attorney General Bell concluded that they were
"reasonable and consistent with the language and intent of the law."
The New York Times editorialized that I had
''done [my] duty ..... He has interpreted the nation's unfair abortion law fairly. ...... On several controversial issues Mr. Califano and his lawyers have performed admirably, hacking their way through a thicket of ambiguities in the law that passed a bitter and divided Congress in December after months of heated debate."
The right to life lobby disagreed. Thea Rossi Barron, legislative counsel for the National Right to Life Committee, called the regulations an example of
"a rather blatant carrying out of a loophole to allow abortion on demand."
The pro-life groups were particularly disturbed about the sixty-day reporting period for victims of rape or incest. But the most severe critic of that provision was Jimmy Carter.
In testifying before the House Appropriations Committee on the morning of February 21, 1978, less than a month after issuing the regulations, Chairman Flood and Republican Robert Michel pressed me to provide an administration position on tightening the restrictions on abortion.
I called the President during the luncheon break. The President wanted the reporting period for rape or incest shortened. He was
"not happy" with the sixty-day time period in the regulations. "I believe such instances are reported promptly," he said coolly.
I told him that the sixty-day period was my best judgment of what Congress intended in the law. Carter "personally" believed sixty days permitted
"too much opportunity for fraud and would encourage women to lie."
"But what counts is what the congressional intent is," I argued.
The President then said he thought the regulations did not require enough information. He particularly wanted the doctor to report to Medicaid the names and addresses of rape and incest victims. The President was also inclined to require reporting of any available information on the identity of the individual who committed the rape or incest. Carter said,
"Maybe some women wake up in the morning and find their maidenhead lost, but they are damn few. That actually happened in the Bible, you know."
"Perhaps we can tighten the reporting requirements," I responded, somewhat surprised at his Biblical reference. "Do you have any strong feelings on the legislation itself?"
Carter expressed some strong feelings:
"I am against performing abortions where long-lasting and severe physical health damage might result. I think that might permit too much of a chance for abuse and fraud. I want to end the Medicaid mills and stop these doctors who do nothing but perform abortions on demand all day."
- 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