"The assumption of many [Roman Catholic] bishops that I could impose my views on the law passed by Congress reflected a misunderstanding of my constitutional role at that stage of the democratic process."

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

By Joseph A. Califano, Jr.

85 ......................... ABORTION

Carter expressed some strong feelings:

When I testified that afternoon, I gave the House Appropriations Subcommittee some indication of the administration's views and agreed to submit a letter with the administration's position the next day.

After preparing a draft, I called the President and reviewed my proposed letter for the committee word by word. The letter set the administration position as stricter than the December compromise of the Congress. The administration o pposed funding abortions in situations involving

The President and I compromised on the rape and incest paragraph:

Just as he was hanging up the phone, Carter again directed me to tighten the reporting provisions on rape and incest.

I changed the regulations to require that the names and addresses of both the victim and the person reporting the rape or incest, and the dates of both the report and the incident, be included in the documentation for Medicaid funding. This change drew immediate fire from the National Organization for Women's National Rape Task Force, but it was well within my discretion under the law and consistent with the congressional intent. Yet the President was still not satisfied. He wanted the sixty-day reporting period shortened, regardless of congressional intent. He raised the issue again two months later at the Camp David Cabinet summit of April 17, 1978, sharply criticizing

among a series of actions by cabinet officers with which he disagreed.

The concern of the President and others that the regulations were too loosely drawn in the rape and incest area has not turned out to be justified. During the first sixteen months under the law and regulations, until shortly before I left HEW, only 92 Medicaid abortions were funded for victims of rape or incest. The overwhelming majority of Medicaid - funded abortions - 84 percent of 3,158 performed - were to save the life of the mother; 522 were to avoid severe and long-lasting health damage to the mother. Eunice Shriver's estimate of 1,000 to 1,500 Medicaid-funded abortions each year was not too far off, particularly when compared with the 250,000 to 300,000 abortions estimated to have been performed annually under Medicaid in the absence of any funding restrictions.

86 ............... GOVERNING AMERICA

I came away from the abortion controversy with profound concern about the capacity of national government, in the first instance, to resolve issues so personal and so laced with individual, moral, and ethical values. The most secure way to develop a consensus in our federal system is from the bottom up. But once the Supreme Court established a woman's constitutional right to an abortion against the backdrop of federally funded health care programs, the issue was instantly nationalized. As each branch acted - the Congress with the Hyde amendment, the executive with its regulations, and the Supreme Court in its opinions - the mandates from the top down generated as much resentment as agreement. This is true even though, by 1978, many states had more restrictive provisions on abortion funding than the national government.

In 1978, the Congress extended abortion funding restrictions to the Defense Department budget. In 1978, it applied an even stricter standard to both HEW and Defense appropriations, by eliminating funding in cases of long-lasting physical health damage to the mother, thus funding abortions only when the life of the mother is at stake or in cases of rape or incest, as Carter and I proposed for HEW in February 1978. The Supreme Court in the McRae case upheld the constitutionality of the Hyde amendment in June of 1980, concluding that the right to an abortion did not require the government to provide the resources to exercise it and that the Congress could restrict the circumstances under which it would pay for abortions. Months later, the Senate and House agreed to place tighter restrictions on Medicaid funding of abortions. Under the 1981 appropriations legislation, such funding is permitted only where the mother's life is at stake, in cases of rape reported within 72 hours and in cases of incest. That legislation permits the states to be even more restrictive; they are

Similar language was attached to the Defense appropriations bill.

Conforming the Defense and HEW appropriations bills provides the same standards for most of the federal funding arena. So long as the Congress acts through the appropriations for each department, however, rather than by way of across-the-board authorizing legislation, there will be inconsistencies.

Even within HEW, the abortion funding policy has been a quilted one. The restrictions do not apply to disabled citizens whose health bills are paid by Medicare, because that program is financed out of Social Security trust funds, not through the HEW appropriations bill. Nor do the funding limits apply to the Indian Health Service; though administered by HEW, funds for the Indian Health Service are provided in the Interior Department appropriations bill. The Congress has begun to move to prohibit the use of federal funds to pay for abortion through federal employee health insurance. The inevitable challenges in court to new restrictions and the recurrent debate in the Congress assure continuing turmoil and controversy over the abortion issue.

87 .................... ABORTION

IN PERSONAL terms, I was struck by how infinitely more complex it was to confront the abortion issue in the broader sphere of politics and public policy in our pluralistic society than it had been to face it only as a matter of private conscience. I found no automatic answers in Christian theology and the teachings of my church to the vexing questions of public policy it raised, even though I felt secure in my personal philosophical grounding.

I was offended by the constant references to me as

in the secular press when it wrote about the abortion issue. No such reference appeared next to my name in the stories reporting my opposition to tuition tax credits favored by the [Roman] Catholic Church or my disputes with the [Roman] Catholic hierarchy on that issue.

I was dismayed by the number of [Roman] Catholics and diocesan papers that attacked me for the regulations I issued on abortion. Their attack so concerned Notre Dame president Father Theodore Hesburgh that he urged me to speak about the conscience and duty of a [Roman] Catholic as a public official at the commencement in South Bend in 1979.

The assumption of many bishops that I could impose my views on the law passed by Congress reflected a misunderstanding of my constitutional role at that stage of the democratic process.

As it turned out, like the President's, their assumption that the sixty-day reporting period for rape or incest constituted a legal loophole was as ill-founded in fact as it was in law.

Throughout the abortion debate, I did - as I believe I should have - espouse a position I deeply held. I tried to recognize that to have and be guided by convictions of conscience is not a license to impose them indiscriminately on others by one-dimensionally translating them into public policy. Public policy, if it is to serve the common good of a fundamentally just and free pluralistic society, must balance competing values, such as freedom, order, equity, and justice. If I failed to weigh those competing values - or to fulfill my public obligations to be firm without being provocative, or to recognize my public duty once the Congress acted - I would have served neither my private conscience nor the public morality. I tried to do credit to both. Whether I succeeded is a judgment others must make.


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