[Congressional Record Volume 141, Number 60 (Friday, March 31, 1995)]
[Senate]
[Pages S4961-S4964]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



               AN AMENDMENT ON ABORTION AND STATES RIGHTS

  Mr. EXON. Mr. President, I rise today to introduce an amendment which 
I will formally introduce later on today or next week depending on flow 
of the business in the Senate. I filed the amendment at the desk. I 
will call it up later on during the consideration of the matters after 
we resume at 10 o'clock today per order of the Chair.
  Mr. President, I rise today to introduce an amendment which is 
intended to clarify Federal law regarding Federal funding for abortion. 
Essentially, this is a States rights issue. As my colleagues know, the 
Hyde amendment has long been in place to restrict the use of Federal 
funds to pay for abortions under Medicaid. Originally, the only 
exception was for when the life of the mother would be endangered if 
the fetus were carried to term. Congress passed a modification, one I 
had long supported, effective October 1, 1993, 
[[Page S4962]] which expanded the exception to pregnancies that were 
the result of acts of rape or incest. I believe that it was the intent 
of Congress that that modification be permissive and not mandatory on 
the States.
  The administration responded to the change in the Hyde amendment by 
issuing a directive dated December 28, 1993, sent to all of the States 
mandating that they pay for abortions resulting from rape and incest as 
well as involving the life of the mother. The administration, in my 
opinion, used a strained analysis to create such a mandate. It 
stretched the medically necessary justification covering the life of 
the mother to cover rape and incest, citing what it thought was 
congressional intent.
  The issue of payment for abortions to save the life of the mother has 
been basically settled. The issue of payment for abortion for rape and 
incest or other reasons has not. Numerous States are in the midst of 
that debate now. Prior to the administration's Medicaid directive, most 
States prohibited the use of public funds for abortion with the
 only exception being for the life of the mother, and that includes my 
home State of Nebraska. Only a handful of other States already paid for 
abortions that were the result of rape and incest. Now several States 
are under the threat of losing their Medicaid funding because they are 
balking at complying with the Federal directive. States have been 
forced into the position of implementing the directive, often in direct 
contradiction of their State law, or risk losing much-needed Medicaid 
funding or carry the argument into court.

  My amendment will give the States the option of using Federal funds 
for abortion in cases of rape and incest but will not mandate it as the 
administration and courts are doing as a result of a questionable 
interpretation of congressional intent.
  This language was adopted on this bill in full committee in the 
House, but was jettisoned by the Rules Committee. As we know, there is 
no comparable committee in the Senate, and any Senator has the right to 
generally bring any amendment on this floor. As a result, I offer this 
amendment which I believe will clarify the intent of Congress in this 
matter. This is also a matter of fundamental States rights and the 
debate should not be preempted by a Federal directive.
  Finally, here is an appropriate opportunity to clarify and limit the 
scope of a Federal mandate and to respect the role of States and their 
law.
  No lengthy debate is necessary. The issue is simple and 
straightforward. We make no changes in Federal law requiring States to 
fund abortions under Medicaid when the life of the mother is 
endangered. We would allow the States, at their discretion, to not fund 
abortions for rape and incest.
  At a proper time I will call up the amendment and urge its adoption.
  In addition, let me briefly say in the closing time allotted to me, 
Mr. President, that at a time when we are hailing the fact that very 
recently we eliminated by an overwhelming vote in the U.S. Senate and 
in the House of Representatives the matter of mandates to the States, 
here is a clear case where we can put our votes where our voices have 
been in the past. Certainly, we all know that the States pay about 46 
percent of all the Medicaid bills. It seems to me that this is a clear 
case that, if we are against mandates, if we are against continued 
funding required by the States without full compensation as a result of 
those laws by the Federal Government, that this is a case where I think 
we should return to what I believe was the intent of the Congress when 
we expanded the formally known Hyde amendment to allow States--but not 
directing them--to fund through Medicaid cases of rape and incest.
  I think that was a very important step in the right direction when 
they provided that, as I have long held. But it seems to me that the 
administration in this case has misinterpreted a principle, a principle 
which I thought was very appropriate.
  I reserve the remainder of my time, and I thank the Chair.
  Mr. THURMOND addressed the Chair.
  The ACTING PRESIDENT pro tempore. The Senator from South Carolina.
  Mr. THURMOND. Mr. President, I wish first to commend the able Senator 
from Nebraska for the fine statement he has just made. We have to 
realize that under the Constitution States do have rights. The Federal 
Government has only the authority which has been delegated to it in the 
Constitution. States have the balance of the rights, and we must not 
forget that.
  Mr. HATCH. Mr. President, I rise in support of the Exon amendment. 
Let there be no mistake. This is not a narrow question about whether 
abortions in the case of rape or incest should be funded under 
Medicaid. This is instead a question whether the Clinton administration 
will succeed in a clever but dishonest stealth campaign to override 
State restrictions on abortion funding and to require Americans to fund 
abortion on demand. That is what is at stake here. Anyone who says 
otherwise either doesn't understand the issue or is trying to pull the 
wool over the eyes of the American people.
  Mr. President, let me explain in some detail the mischief that the 
Clinton administration has engaged in for the last year and a half or 
so with respect to the issue of Medicaid funding of abortion. Remember, 
this is an administration that claims that it wants abortion to be 
rare.
  In 1993, both Houses of Congress, by impressive margins, passed into 
law an expanded version of the Hyde amendment.
  This Hyde amendment forbids Federal taxpayer funding of abortion 
through Medicaid except in cases of rape, incest, or danger to the life 
of the mother. The very purpose of the Hyde amendment was to respect 
and accommodate the decisions by 40 or so States to restrict taxpayer 
funding of abortion.
  No one in Congress intended that the Hyde amendment would become a 
vehicle for overriding State restrictions on abortion funding. But this 
is exactly the campaign that the Clinton administration, through the 
actions of its bureaucrats in the Department of Health and Human 
Services, has waged over the past 18 months. In State after State, the 
Clinton administration, in concert with pro-abortion groups, has 
attempted to override State restrictions on abortion funding and to 
require State taxpayers to fund abortion on demand.
  Take, for example, what has happened in my State of Utah. On December 
28, 1993, a Clinton administration bureaucrat sent a form letter to the 
State of Utah's Medicaid Director claiming that the Hyde amendment 
required Utah to fund abortions in instances where Utah law prohibited 
funding. In a response dated January 13, 1994, Mr. Rod Betit, the 
executive director of the Utah Department of Health, complained about 
the ``unconscionable catch-22'' that HHS was putting Utah and other 
States in. Mr. Betit pointed out, among other things, that the HHS 
pronouncement ``ignored longstanding principles of cooperation and 
consultation,'' adopted ``a questionable mandatory interpretation of 
previously permissive language,'' and ``issue[d] reporting and 
documentation requirements that have no basis in Federal law.''
  Mr. President, I ask unanimous consent that the full text of Mr. 
Betit's letter be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                    Utah Department of Health,

                                 Salt Lake City, January 13, 1994.
     Mr. Bruce C. Vladeck,
     Administrator, Health Care Financing Administration, 
         Washington, DC.
       Dear Bruce: I appreciate your taking the time to explain 
     Sally Richardson's December 28, 1993 letter during our recent 
     phone conversations. Your assurances that HCFA intends to 
     follow the compliance process with regard to the new abortion 
     mandate in an orderly, nonconfrontational manner is welcome. 
     Nonetheless, I hope that after considering the points in this 
     letter you will agree the prudent course of action would be 
     for HCFA to rescind Sally Richardson's order, and reissue it 
     as an optional policy change after appropriate consultation 
     with the State Medicaid Directors in the form of a true 
     Executive Order.
       I share Ray Hanley's concerns about how this policy was 
     announced. HCFA's method of issuing their interpretation of 
     the 1993 Hyde Amendment ignored long standing principles of 
     cooperation and consultation between HCFA and the states and 
     threatens to seriously undermine this cooperative 
     relationship. Not only did HCFA assume the responsibility to 
     issue a questionable mandatory interpretation of previously 
     permissive language, HCFA also took upon itself to 
     [[Page S4963]] issue reporting and documentation requirements 
     that have no basis in federal law. Further, HCFA completely 
     ignored the box that this preemptive mandate immediately 
     created for Utah and many other states. While HCFA has agreed 
     to give the states time to resolve the dispute, your mandate 
     has left the states vulnerable to legal action from other 
     parties. Why HCFA would knowingly place states in this 
     unconscionable catch-22, completely escapes me and leaders in 
     other states.
       Based on research to this point and careful consultation 
     with local and national legal advisors, I continue to believe 
     that HCFA's interpretation of congressional intent may be 
     unsound. The Supreme Court has not decided this issue, having 
     explicitly reserved judgment in William v. Zbaraz, 448 U.S. 
     358, 363 n.5 (1980). The Court has indicated that the intent 
     to mandate abortion coverage should not be presumed, absent 
     clear proof of that intent. Beal v. Doe, 432 U.S. 438, 446-47 
     (1977). Contrary to popular belief,
      passage of a new federal law does not in and of itself 
     trigger federal supremacy. There has to be clear evidence 
     that Congress intended to override the laws of the 50 
     states. Sally Richardson's letter indicates that HCFA's 
     interpretation regarding medical necessity is ``(b)ased on 
     the language of this year's Hyde Amendment and on the 
     history of Congressional debate about the circumstances of 
     victims of rape and incest.'' Your assistance in providing 
     specific information to support this assertion is 
     respectfully requested as Utah cannot locate any evidence 
     to support Sally Richardson's claim.
       In fact, I have reviewed the language of the Hyde Amendment 
     for each year from 1976 through 1993. I see nothing 
     distinctive about the 1993 language that addresses 
     congressional intent to change a permissive policy to a 
     mandatory one. The State Medicaid Manual indicates that the 
     States ``may choose not to fund abortions to the extent they 
     deem appropriate.'' State Medicaid Manual, Part 4, Section 
     4430. This has been federal policy from 1981 through 1992. I 
     fail to see anything in the language of the 1993 version that 
     dictates a change in that policy.
       Further, I have reviewed the legislative history 
     surrounding the adoption of the 1993 version of Hyde and find 
     nothing conclusive there either. Comments from congressional 
     leaders and their staff in the last 2 weeks would also 
     suggest that no clear proof of intent exists. I am therefore 
     persuaded that a permissive interpretation remains consistent 
     with congressional intent. I also fail to see how that 
     interpretation frustrates national policy in the Medicaid 
     program.
       Your January 5, 1994 letter to Ray Hanley argues that the 
     absence of Bauman Amendment language since 1983 forces a 
     mandatory interpretation. If this is so, why has the 
     permissive language in the State Medicaid Manual remained 
     unchanged? Further, your interpretation that the Hyde 
     language preempts state law absent an express exception, is 
     in direct conflict with the standard set forth by the Supreme 
     Court in Beal. Have you any case law to support this 
     position?
       The legislative history surrounding the adoption of the 
     Bauman Amendment in 1981 makes it very clear that it was 
     intended to clarify congressional intent that abortion 
     coverage was permissive. Our research to date, has not 
     uncovered any explicit indication of why it is absent after 
     1983. Your conclusion that its absence automatically compels 
     an interpretation that coverage is mandatory is highly 
     suspect. It can be plausibly argued, and case law supports 
     the interpretation in appropriate cases, that the failure to 
     repeat such language does not appear after 1983, we would 
     appreciate your assistance in resolving this important 
     question.
       As I indicated to you on the phone, and as the media has 
     publicized, the Utah Department of Health is clearly caught 
     between HCFA's mandate and very explicit state statutes. Utah 
     Code Ann. Sec. 26-18-4(2)(1989) limits coverage to causes 
     where the mother's life is threatened. Violation of this 
     restriction by a public employee is a Class B misdemeanor and 
     could include forfeiture of office. Utah Code Ann. Sec. 26-
     18-5(3)(1989) anticipates situations where changes in federal 
     law mandate modifications to state law and rule. However, the 
     last clause in this statute says ``providing, the provisions 
     of this section shall not apply to department rules governing 
     abortion.'' I believe the Utah Legislature has clearly 
     indicated that a change, such as coverage for rape and incest 
     related abortion, can only be made after public debate and a 
     decision by that body. This is especially true in this case, 
     where our legal analysis indicates that federal preemption of 
     state law is ambiguous.
       Your response to the issues raised in this letter will be 
     very helpful to our Legislature. Our session begins on 
     Monday, January 17, 1994 and runs through March 2, 1994. I am 
     sure that this issue will be discussed. We would like to be 
     able to share your response as part of that discussion.
       I look forward to hearing from you as soon as possible.
           Sincerely,
                                                     Rod L. Betit,
                                               Executive Director.

  Mr. HATCH. The State of Utah, to its credit and to the credit of its 
fine Governor, Mike Leavitt, has refused to acquiesce in the Clinton 
administration's bureaucratic abuses. Predictably, the Clinton 
administration has even threatened to cut off Utah's participation in 
Medicaid unless Utah violates its own laws restricting abortion 
funding. On December 28, 1994, an HHS bureaucrat cited Utah for 
supposed noncompliance with Medicaid requirements.
  Another key component of the administration's stealth campaign to 
require taxpayer funding of abortion on demand has been to work hand-
in-hand with pro-abortion groups to file lawsuits against States that 
continued to enforce their restrictions on abortion funding. In January 
of this year, a pro-abortion group sued to void Utah's restrictions on 
abortion funding. Similar lawsuits have already succeeded in a number 
of other States.
  Mr. President, Congress did not intend through the Hyde amendment to 
override State restrictions on abortion funding. Yet the administration 
has been using the Hyde amendment in pursuit of its agenda of funding 
abortion on demand. The administration's arguments have, admittedly, 
been clever. Clever but mischievous. Clever but dishonest. Clever but 
unfaithful to the clear intent of Congress. Clever but contemptuous of 
the right of the people in each State to determine whether and when to 
fund abortion.
  To my colleagues, I say that the question on the Exon amendment is 
clear. If you believe that a policy of requiring States to fund 
abortion on demand should be imposed by stealth, then vote with the 
Clinton administration and against the Exon amendment. But if you 
believe that the rights of State taxpayers and the clear intent of 
Congress in passing the Hyde amendment should be respected, then join 
Senator Exon and me and others in voting for his amendment.
  I commend the distinguished Senator from Nebraska for this amendment. 
It is a good amendment. He is a good man. He is doing what is right 
here, and I support him. I hope that the Clinton administration will 
back off and realize that the Senator from Nebraska is right.
  I yield the floor.
  Mr. THURMOND. Mr. President, I rise today to address the future of 
the Anti-Ballistic Missile Treaty of 1972 and its impact on U.S. 
national security. In my view, the administration's policy toward the 
ABM Treaty is fundamentally flawed and should be reconsidered. By 
seeking to perpetuate and expand the coverage of a treaty that is 
fundamentally outdated, the administration has created a number of 
problems. Let me briefly discuss these and offer an alternative 
approach.
  The ABM Treaty was intended to be the central feature of an arms 
control regime that would balance and stabilize the United States-
Soviet strategic relationship. This agreement, as much as anything 
else, symbolizes the cold war doctrine of mutual assured destruction, 
or MAD--a belief that if the United States and the Soviet Union remain 
equally vulnerable to massive nuclear retaliation, neither side will 
have an incentive to attack the other.
  Today the cold war is over. And while the United States and Russia 
still differ over a variety of issues, there is no reason to perpetuate 
an adversarial relationship. Unfortunately, many government officials 
in Russia and the United States continue to cling to fundamentally 
outdated, cold war attitudes and policies.
  The way the administration has handled the ABM Treaty is a glaring 
illustration of this problem. Rather than seeking to define a new 
United States-Russian strategic relationship, the administration has 
decided to reaffirm a relationship based on mutual vulnerability and 
the threat of retaliation.
  Instead of seeking to replace or evolve the ABM Treaty regime, the 
administration is committed to preserving and even expanding the core 
principles of the ABM Treaty. It has sought to extend the philosophy of 
mutual vulnerability in two ways--by agreeing to multilateralize the 
treaty, and by attempting to extend its limitations to theater missile 
defense systems, which the treaty does not cover.
  By multilateralizing the ABM Treaty, the United States is not only 
endorsing the continuation of mutual vulnerability, but is also 
inserting this concept into its relationship with several of the New 
Independent States of the former Soviet Union. Moreover, by including 
these countries in the ABM Treaty, we would give them a significant 
voice in, if not a veto over, key U.S. decisions on missile defense.
  [[Page S4964]] This is even more troubling when viewed in the context 
of what the administration is doing to capture theater missile defense 
systems under the ABM Treaty. The administration has shown a 
willingness, if not an eagerness, to include detailed performance 
limitations on theater missile defense systems. Under the guise of 
clarification, the administration has come up with nothing short of a 
new treaty regulating theater missile defenses.
  The administration's overall approach to the ABM Treaty poses three 
overlapping problems, which might be viewed as near-term, mid-term, and 
long-term problems. Let me address each of these in turn and offer what 
I believe to be logical and achievable solutions.
  In the near-term, the United States must respond to an expanding 
array of theater ballistic missile threats by developing and deploying 
highly effective theater missile defenses. These threats are an 
undeniable and salient part of the new security environment. Thanks to 
the efforts of U.S. industry and our military
 services, we are well positioned to acquire highly effective theater 
missile defenses and to allow these capabilities to grow along with the 
threat.

  Unfortunately, the administration's current approach threatens to 
preclude promising theater missile defense options and establish an 
artificial technological ceiling on the growth of those systems that we 
do deploy. This approach is strategically unwise and legally 
unnecessary.
  The solution to this problem is relatively straightforward. The ABM 
Treaty simply states that non-ABM systems may not be given capabilities 
to counter strategic ballistic missiles and may not be tested in an ABM 
mode. Nothing in the treaty talks about the performance of non-ABM 
systems and it would be very unwise for us to get into the business of 
regulating these systems now.
  The answer is simply to define what a strategic ballistic missile is 
and to establish as a matter of U.S. policy or law that theater missile 
defense systems comply with the ABM Treaty unless they are actually 
tested against a strategic ballistic missile. A commonly used 
definition of a strategic ballistic missile, which the United States 
and Russia have already agreed upon, is a missile that has a range 
greater than 3,500 kilometers or a velocity in excess of 5 kilometers 
per second. If this definition were used, the United States and Russia 
would be free to develop and deploy a wide range of highly effective 
theater missile defense systems without having fundamentally altered 
the letter or intent of the ABM Treaty.
  Even if we take this step, however, we will still be faced with a 
mid-term problem. U.S. territory will inevitably face new ballistic 
missile threats, which our theater missile defense systems are not 
being designed to counter. North Korea already has an ICBM program in 
development and other countries will almost certainly be able to 
exploit readily available technology in order to acquire such 
capabilities. The administration is simply not preparing adequately for 
this threat.
  If the United States is to deal with this problem in an effective 
manner, the ABM Treaty will have to be altered to allow for the 
deployment of a robust national missile defense system. While we can 
begin immediately with the development of a national defense system 
that is in compliance with the ABM Treaty, eventually we will need 
relief from the treaty. This will be necessary in order to cover all 
Americans adequately and equally. Deployment of several ground-based 
missile defense sites, perhaps supplemented by enhanced mobile systems, 
could provide a limited, yet comprehensive defense of the United 
States. This could be achieved with relatively modest changes to the 
ABM Treaty, changes that would not undermine United States or Russian 
confidence in their deterrent forces.
  But even if we accomplish this goal, we would still be left with a 
long-term problem having to do with the fundamental purpose of the ABM 
Treaty. Ultimately, if the United States and Russia are to establish 
normal relations and put the cold war behind them, they will have to do 
away with the doctrine of mutual assured destruction, which lies at the 
heart of the ABM Treaty. This can and should be a cooperative process, 
one that leads to a form of strategic stability more suited for the 
post-cold-war world. Such a form of stability might be called mutual 
assured security and should be based on a balance of strategic 
offensive forces and strategic defensive forces. We must once and for 
all do away with the notion that defense is destabilizing and that 
vulnerability equals deterrence.
  If the United States and Russia are serious about reducing their 
strategic nuclear forces to levels much below those contained in the 
START II agreement, we must be able to fill the void with missile 
defenses. We can do this cooperatively with Russia and other concerned 
parties, but we must make it clear that the United States is intent on 
evolving away from an offense-only policy of deterrence. We will 
undoubtedly require strategic nuclear forces for the foreseeable future 
to deter a broad range of threats, but in a world of diverse and 
unpredictable threats, we can no longer rely on these exclusively.
  Mr. President, I hope the administration will reconsider the range of 
problems I have discussed today. I believe that there are reasonable 
solutions within reach, if only we seek them. An incremental approach 
that deals with these problems in phases may facilitate cooperation and 
help wean both sides away from the comfortable yet outdated patterns of 
the cold war.
  Mr. President, I yield the floor.
  Mr. FRIST addressed the Chair.
  The PRESIDING OFFICER. The Senator from Tennessee.

                          ____________________