[Congressional Record Volume 141, Number 109 (Friday, June 30, 1995)]
[Senate]
[Pages S9563-S9565]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


          NOMINATION OF DR. HENRY FOSTER TO BE SURGEON GENERAL

 Mr. ABRAHAM. Mr. President, last week the Senate conducted two 
cloture votes on the nomination of Dr. Henry Foster to be Surgeon 
General of the United States. As a member of the Senate Committee on 
Labor and Human Resources, I was already on record in opposition to the 
nomination. However, for the benefit of my colleagues and my 
constituents, I wanted to once again outline my reasons for opposing 
Dr. Foster and why I voted against cloture.
  At the outset of this nomination, I chose to reserve final judgment 
on Dr. Foster's qualifications to serve as Surgeon General until he had 
an opportunity to appear before the Labor Committee and address my 
concerns and 

[[Page S9564]]
the concerns of other Senators and until I had an opportunity to review 
the entire record.
  After careful thought and consideration during the Labor Committee's 
deliberations, I decided that I could not support Dr. Foster's 
nomination. I came to this conclusion for three reasons: First, I have 
serious doubts about whether Dr. Foster can unify the American people 
behind important national health policies. Second, I am troubled about 
where Dr. Foster comes down on the continuum which places parents' 
rights and responsibilities on one end and the State on the other. And 
third, I believe serious credibility questions regarding this 
nomination continued to exist. And for reasons I shall elaborate upon 
later, I ultimately came to believe that in this instance, extended 
debate of this nomination was necessary and appropriate.
  Now let me just add that Dr. Foster obviously is dedicated to serving 
others. He tended the health care needs of thousands of poor, rural 
women in the still segregated Deep South of the late 1960's and early 
1970's. He taught at and helped run a historically black medical school 
which provides 40 percent of the black doctors in America. And he 
helped the youth of Nashville bridge the sometimes cavernous gap 
between a life of poverty and a life of education, economic advancement 
and social accomplishment. In all these endeavors, Dr. Foster has 
exhibited the finest qualities of civic duty and selfless public 
service. On that basis alone, one has to admire him. Nevertheless, in 
each of the areas I cited earlier, Dr. Foster was unable to allay my 
concerns.
  Mr. President, the first concern I have relates to what I perceive as 
this nominee's inability to serve as a unifier, bringing Americans 
together behind key public health principles. I have repeatedly 
expressed my worry regarding Dr. Foster's suitability to replace Dr. 
Joycelyn Elders. Given the extremely turbulent and divisive nature of 
Dr. Elders' service as Surgeon General, it came somewhat as a shock to 
me--and I think to many others as well--that the administration would 
select someone to replace her whose background would create anxiety 
among many Americans. I have never felt that Dr. Foster's background as 
an ob-gyn or his pro-choice views disqualify him for serving as Surgeon 
General. However, I believe that the fact that Dr. Foster personally 
has performed abortions creates a different sort of burden on his 
nomination.
  Dr. Foster has said that he wants to be seen as the Nation's doctor, 
but his past actions will cause many Americans to shrink from thinking 
of him in that role. This would not matter if the position involved 
were managerial or technical; but it is not.
  The Surgeon General's role is almost exclusively that of a public 
educator. He has a bully pulpit that must be used to bring Americans 
together behind improved medical and health practices. As I have said, 
following our experience with Dr. Elders, I think most Americans 
believe we should find someone for this position who can serve as a 
unifying force on the critical health care issues confronting or 
Nation. I was concerned that, because of his past practices, many would 
not at first blush choose Dr. Foster to be their physician. Therefore, 
at the confirmation hearings I asked Dr. Foster how he would try to 
restore this confidence in his ability to serve as the Nation's doctor 
and how he would do it. Regrettably, Dr. Foster could not seem to 
relate to this request; his response bordered on the dismissive.
  Mr. President, I did not expect Dr. Foster to change his views. But I 
did expect, or at least hope, that he would have a plan to unify people 
and reach out to those who--at the outset--were worried about his 
selection, but he did not. Indeed, he did not offer a single idea 
concerning how he might address his challenge--not speeches, not 
meetings, nothing. I feel in a position as sensitive as this we need 
someone who would work hard to bring people together. Dr. Foster 
offered no commitment or dedication to pursue such an objective. I 
believe that was a mistake.
  Mr. President, this brings me to another area of concern that I have 
specifically expressed from the outset: I have been worried about where 
Dr. Foster comes down on the continuum which places parents' rights and 
responsibilities on one end and the State on the other. Traveling 
throughout Michigan during my campaign I repeatedly heard parents 
strongly express two messages: They were concerned about the breakdown 
of the family unit and the consequences they viewed as emanating from 
that trend: teenage pregnancy, drug and alcohol abuse, and crime. And 
they were concerned about the degree to which Government's attempts to 
solve these problems, often exacerbating them in the process, pushed 
more traditional support systems such as families, relatives, and 
community out of the equation.
  Now I realize that some will say this is a little old-fashioned in 
the generation X world of post-modern morality, but I want the Federal 
Government's chief health spokesman out in front on this issue, leading 
the fight to involve parents more directly in their children's lives 
and resisting further Government usurpation of parents' 
responsibilities. Regrettably, Dr. Foster's actions and positions have 
led me to conclude that he could not fulfill this role.
  For example, Dr. Foster stated during the hearing that he opposed 
laws requiring parental notification when contraceptives are provided 
to minors. And Dr. Foster has a history of opposition to parental 
consent laws in the case of minors seeking an abortion, even those with 
judicial bypass provisions.
  Mr. President, I share Dr. Foster's view on the importance of 
preventing teen pregnancy, and on other crucial health and social 
issues as well. Where I believe we differ is on the level of 
responsibility we think parents should have in these areas and the 
steps each of us is prepared to take to achieve parental involvement. 
The question is: Would Dr. Foster, as Surgeon General, throw the moral 
authority of his office behind such initiatives?
  By most accounts, Dr. Joycelyn Elders dismissed parents altogether 
from playing any role in the sexual education and development of their 
children. Dr. Foster, it appears, believes that parental involvement is 
something to be desired and encouraged, but because of the positions he 
has taken and will presumably continue to advocate, he will send a 
different, contradictory signal.
  We need a Surgeon General who recognizes that parents must become 
very involved and will take positions that are consistent with that 
philosophy.
  Mr. President, the final concern I have, and the one which not only 
leads me to oppose this nomination but to vote against cutting off 
debate, is the issue of Dr. Foster's credibility. In order to succeed, 
a surgeon general requires one asset above all others: utmost 
credibility. But Dr. Foster's credibility has been seriously 
compromised in several ways. A major credibility problem arose from Dr. 
Foster's stewardship of the ``I Have a Future'' Program. When 
announcing the selection of Dr. Foster as his nominee, President 
Clinton spoke of the doctor's work in this program and its emphasis on 
reducing teen pregnancy. The President cited these as primary reasons 
for selecting Dr. Foster. The H.H.S. press release sent out that same 
day stated, ``The program stresses abstinence * * *.''
  Dr. Foster himself, during a February 8 ``Nightline'' broadcast, 
proclaimed, ``I favor abstinence. Abstinence, that's what I favor. 
That's the bedrock of our program.'' But there has been no concrete 
evidence presented to support that assertion.
  It came as a great surprise to everyone on the committee, I think, 
when neither the administration, the nominee, nor the ``I Have A 
Future'' Program could produce the much-heralded abstinence brochures 
supposedly distributed during Dr. Foster's service as director. Nor was 
any other evidence forthcoming that abstinence was the bedrock 
principle of the program.
  After repeated requests to the administration and to Dr. Foster for 
those materials, the only abstinence brochures which were ever produced 
were those which Senator Dodd distributed at the hearing. And, as 
everybody knows, those brochures turned out to have been published 
earlier this year--long after Dr. Foster had ended his direct 
supervision of the ``I Have A Future'' Program. There are other reasons 
to doubt assertions that the ``I Have A Future'' Program had abstinence 
as its ``bedrock'' principle. 

[[Page S9565]]

  In an article written by Dr. Foster and two of his colleagues for the 
summer 1990 issue of the ``Journal of Health Care for the Poor and 
Underserved,'' entitled ``A Model for Increasing Access: Teenage 
Pregnancy Prevention,'' the authors clearly stated that the ``I Have A 
Future'' Program places considerable emphasis on widespread 
distribution of contraceptives to teenagers. This article and other ``I 
Have A Future'' materials make clear that reducing pregnancy among 
sexually active teens was the primary focus of the program, not 
promoting abstinence.
  Mr. President, I find it difficult to believe that Dr. Foster and the 
administration would fail to provide documentation for their crucial 
claim, that abstinence was the dominant feature of the program, if such 
documentation existed. Considering the emphasis placed by Dr. Foster 
and the administration on the role abstinence and the ``I Have A 
Future'' Program played in this nomination, this was a devastating 
revelation and comment on the credibility of the nomination. The 
critical question here to me was not whether abstinence was the 
``bedrock'' principle behind the program. What I found most disturbing 
was the apparent attempt to deceive people regarding the degree to 
which the program was based upon abstinence. Another credibility 
problem, Mr. President, exists with respect to Dr. Foster's position on 
the issue of parental consent in the area of abortion.
  During the hearings, Senator Mikulski and I each queried Dr. Foster 
about whether he supported requiring parental consent in cases where 
minors seek abortions. In the end, Dr. Foster maintained that he 
supported parental consent laws as long as a judicial bypass provision 
was included. However, in a speech before a 1984 Planned Parenthood 
conference, Dr. Foster expressed strong opposition to consent statutes, 
including a Tennessee statute which included judicial bypass language. 
In that speech, Dr. Foster stated, ``However, the [Supreme] Court 
upheld consent laws for minors; hence our opponents can still create 
abortion deterrents by seeking legislation which will necessitate such 
an approval.'' And, moments later, Dr. Foster repeated this sentiment. 
``The Supreme Court * * * upheld by a single vote margin the 
constitutionality of minority consent requirements, but in doing so, it 
did not examine how such laws work in actual practice. Hence, an 
opening has been left for those who would like to see such laws 
invalidated.''
  Those are pretty definitive statements. And they are in direct 
conflict with the support Dr. Foster professed for consent legislation 
at the hearing in response to my questions. This lack of consistency 
was troubling, Mr. President, and further buttressed my concerns about 
Dr. Foster's credibility. Furthermore, this nomination has from the 
very beginning been dogged by another credibility issue: the question 
of how many abortions Dr. Foster actually performed over the years. The 
White House originally told the chairman of the Labor Committee that 
Dr. Foster had only performed one abortion. Then Dr. Foster issued a 
written statement claiming he had performed less than a dozen 
abortions. Days later, on ``Nightline,'' Dr. Foster changed his 
position and stated that he had performed 39 abortions since 1973. 
During the Labor Committee hearings he admitted that he had performed a 
40th--albeit a ``pregnancy termination''--performed before 1973. During 
the same ``Nightline'' broadcast, Dr. Foster also was asked whether he 
was including in this count the 59 abortions obtained by women 
participating in a clinical trial he supervised for the drug 
prostaglandin.
  Dr. Foster said that he did not include those abortions because they 
were part of a research study performed by a university trying to 
maintain accredition. Thus, Dr. Foster, at various times throughout 
this process, has said that he performed 1 abortion, then 12, then 39, 
then 40, then another 49. In short, the number has changed with too 
much frequency and is still somewhat dependent on semantics.
  The issue here is no longer the actual number, but, again, one of 
credibility. Knowing that the issue of abortion was going to be of 
great concern, I believe it was Dr. Foster's responsibility from the 
start to provide a complete and accurate accounting so that the Labor 
Committee and the American people would have reliable information with 
which to judge his qualifications.
  Finally, Mr. President, Dr. Foster's credibility has been undermined 
by his characterization of the transcript from the 1978 HEW Ethics 
Board meeting, a meeting at which he was an active participant, and at 
which he is specifically reported to have said that he performed 
``perhaps'' 700 abortions. The White House's initial response to news 
of the transcript's existence was to suggest that Dr. Foster had not 
even been at the meeting. The White House then shifted its approach and 
began issuing statements calling the transcript a fraud. That charge 
later proved to be false as well.
  Now, even if the White House issued these false statements without 
Dr. Foster's knowledge, I believe he had a responsibility--to the White 
House, to Congress and to the American people--to correct the errors 
once they appeared. To my knowledge, no such attempt was made.
  Only after others verified that Dr. Foster was at this meeting and 
that the transcript was, in fact, genuine did the White House and Dr. 
Foster adopt their current position: They now contend that the remark 
attributed to Dr. Foster about performing 700 amniocentesis and 
therapeutic abortions was an error in the transcription.
  However, after reviewing the transcript, it was clear to me that 
there was no transcription error. The only transcription problems 
occurred during different portions of the meeting and were corrected on 
the spot. Additionally, in response to my written questions, Dr. Foster 
did not deny other remarks about amniocentesis and therapeutic 
abortions attributed to him in the transcript. In fact, he admitted to 
having performed ``therapeutic abortions'' after diagnosing genetic 
disorders in unborn babies. This revelation conflicted with Dr. 
Foster's previous assertions about what was said at the meeting and 
raised even further questions in my mind about Dr. Foster's 
credibility.
  Mr. President, on the matters I have just outlined, I believe Dr. 
Foster's credibility has been seriously damaged. Because I believe 
credibility is such an essential quality for any effective Surgeon 
General, I do not see how, given this liability, I could in good 
conscience support Dr. Foster's nomination.
  Now, Mr. President, let me offer my reasons for voting against 
cloture in this instance. Generally speaking, it is my intention to 
vote to confirm qualified individuals that the President nominates. But 
in those circumstances where the integrity and credibility of a 
nominee--or the actions of an administration in presenting a nominee--
are clearly or seriously in question, I will reserve my right to vote 
against the President's choice, or against efforts to close off debate 
on the Senate floor.
  In my judgment, this nomination does present clear and serious 
questions about the nominee's credibility. For that reason, Mr. 
President, I felt a sincere obligation to vote against invoking cloture 
on the nomination of Dr. Henry Foster to be Surgeon General.


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