[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.

                          ____________________