[Congressional Record Volume 156, Number 100 (Wednesday, June 30, 2010)]
[Senate]
[Page S5690]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
HARRIS v. McRAE
Mr. HATCH. Mr. President, 30 years ago today, the Supreme Court of
the United States announced its landmark decision in Harris v. McRae,
448 U.S. 297, upholding the constitutionality of the Hyde amendment,
which prohibits Federal funding of abortions under the Medicaid
Program. That decision made it possible for Congress, by annual
enactment of the Hyde amendment, to protect American taxpayers from
being forced to fund the destruction of innocent preborn human beings.
The majority opinion, written by Justice Potter Stewart, established
three important principles. First, no matter what unwritten right to
abortion may be said to exist in our written Constitution, ``it simply
does not follow that a woman's freedom of choice carries with it a
constitutional entitlement to the financial resources to avail herself
of the full range of protected choices.'' Second, the Court accepted in
full the argument of Solicitor General Wade McCree that the Hyde
amendment is rationally related to the interest we all have in
preserving nascent human life and encouraging childbirth. Finally, the
Court rejected the spurious claims of the Hyde amendment's opponents
that the amendment violated the establishment clause of the first
amendment because it somehow incorporated into federal law the
religious doctrine of the Roman Catholic Church.
In our recent debate over healthcare reform, we often heard that
because the Hyde amendment is already ``settled law,'' there was no
need for specific provisions to ban taxpayer subsidies for abortion
through the health insurance exchanges or other features of the
legislation. That argument, of course, was wrong. The Hyde amendment
affects the appropriations that fund the Departments of Labor and of
Health and Human Services. The vast health care bureaucracy created by
this new legislation will exist outside of those departments. Time will
tell whether those who argued so strongly that the Hyde amendment is
settled and ``good law'' will nonetheless challenge it again in the
future.
Let's be honest about a fundamental point: change in our health care
system provides another opportunity for abortion advocates to claim
that abortion is health care that must be funded by the taxpayers. That
claim must be resisted and defeated, just as it was resisted and
defeated in Harris v. McRae.
Were he still among us, our dear and esteemed colleague Henry Hyde
would have reminded our colleagues of this, with an eloquence we cannot
muster. The amendment bearing his name, after all, did not become law
by accident; nor did it survive other than by the heroic efforts of
Henry Hyde and a small cadre of pro-life attorneys who persuaded the
Department of Justice to make the very arguments critical to
successfully defending the Hyde amendment in court.
Henry Hyde was vilified at the time for his amendment, and for his
unwillingness to yield or compromise on its principles. Investigators
for the plaintiffs in Harris followed the Congressman to Mass, and then
argued to the Federal district court in Brooklyn that his amendment was
motivated by his religion. What a scandal--that a Congressman's faith
would motivate his work.
Henry, of course, did more than simply introduce and achieve passage
of his amendment. That alone would have been heroic. But he also
entered the litigation challenging his amendment as an intervening-
defendant, joined by former Senator and now-Judge James L. Buckley,
Senator Jesse Helms, and others, to ensure that the amendment would
receive the most vigorous defense in court.
His New York lawyers, Lawrence Washburn and Gerald Bodell, were
joined by the superb legal team at Americans United for Life Legal
Defense Fund, a fledgling Chicago-based office that suddenly found
itself in the biggest case in its short existence. The AUL lawyers,
including Northwestern University law professor Victor G. Rosenblum,
eminent Chicago trial lawyer Dennis Horan, and AUL staff attorneys
Patrick Trueman and Thomas Marzen, were pivotal in framing the legal
arguments that prevailed in Harris. They simultaneously represented
intervening defendants in Williams v. Zbaraz, defending an Illinois
version of the Hyde amendment. In Williams, named for AUL's clients Dr.
Jasper F. Williams and Dr. Eugene F. Diamond, Professor Rosenblum
eloquently argued to the Supreme Court that neither due process nor
equal protection required government at any level to treat abortion on
a par with the life-giving alternative of childbirth.
The victories in Harris and Williams remain the most significant pro-
life legal victories of our lifetimes. But, until the Hyde amendment
becomes a part of the United States Code rather than an annual
appropriations amendment, so that it covers a government programs and
expenditures, we must continue to make the same vigilant effort that
made the victories in those cases possible. AUL was a key partner as I
and others in Congress fought to put true Hyde-type language in the
health care legislation. Undaunted at the loss in Congress, AUL has
turned its attention to the States, helping to draft legislation
allowing States to ``opt-out'' of coverage for abortion through the
insurance exchanges, and to take other steps to ensure that health care
reform does not undermine the principles of the Hyde amendment.
Many of the courageous warriors who first defended those principles
three decades ago have passed from our midst: my friends Henry Hyde and
Jesse Helms, attorneys Dennis Horan and Tom Marzen, and Dr. Jasper
Williams. Thankfully, some of the young lawyers who worked with them
such as Carl Anderson, Robert Destro, and Paige Comstock Cunningham,
remain active pro-life leaders today. Meanwhile, the ranks of young
lawyers and students eager to follow in the footsteps of these legal
pioneers continues to grow. That is what trailblazers do, they lead the
way so that others may follow and continue the fight. May their efforts
be blessed, and this Nation move swiftly to the day when the lives of
the unborn receive full legal protection.
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