COMMENTARY
FLORIDA CATHOLIC CONFERENCE

Archdiocese of Miami + Diocese of St. Augustine
Diocese of St. Petersburg + Diocese of Orlando + Diocese of Pensacola/Tallahassee

VOLUME 2, NUMBER 2 / November 1981

   The right to life of the unborn child has been a major concern in Florida since the first legalized abortion proposals were made in 1967. it has been a major concern of the Florida Catholic Conference since its inception in 1969. There have been many dismal and seemingly hopeless days during that time, especially since January 22,1973. But a major turning point has been reached in the pro-life cause and in the constitutional history of the United States. On September 21, 1981, Senator Orrin Hatch of Utah introduced his Human Life Federalism Amendment, SJR 110. Senator Hatch, Chairman of the Senate Judiciary Subcommittee on the Constitution, has already begun hearings on the amendment. Archbishop John R. Roach, President of the National Conference of Catholic Bishops, and Terence Cardinal Cooke, Chairman of the Pro-Life Activities Committee of the NCCB, have testified in favor of the amendment. The amendment states:

A RIGHT TO ABORTION IS NOT SECURED BY THIS CONSTITUTION. THE CONGRESS AND THE SEVERAL STATES SHALL HAVE THE CONCURRENT POWER TO RESTRICT AND PROHIBIT ABORTIONS: PROVIDED, THAT A LAW OF A STATE WHICH IS MORE RESTRICTIVE THAN A LAW OF CONGRESS SHALL GOVERN.

DEFINITION:
The Hatch Human Life Amendment is a Constitutional Amendment which would:
a. Establish that there is no right to an abortion guaranteed by the Constitution;
b. Reverse the 1973 Roe v. Wade decision;
c. Specifically give to Congress power with the States to prohibit abortions. it would also allow the States to establish even more restrictive standards of protection for the unborn than set by an Act of Congress.

NOT A STATES RIGHTS AMENDMENT:
   The Hatch Amendment avoids the dilemma of "States Rights," namely, the prospect that some states would pass restrictive anti-abortion legislation while other states would not, thus creating abortion havens. By authorizing Congress to pass national legislation applying in all fifty states, this problem can be avoided. However, by also authorizing concurrent state legislation, the amendment makes possible the utilization of both federal and state mechanisms for compliance.

ABORTION AND PUBLIC OPINION:
   An analysis of the public opinion polls since 1973shows that approximately one-fourth to one-third of the public actually supports unrestricted abortion, but only the same approximate percentage of the population actually supports banning all abortions or banning abortion except to prevent the death of the mother. Up to half the population would favor restricting abortion but would allow it for one or more of various other exceptions. Thus the court mandated abortion-on-demand has only minority support; there is also only minority support for the traditional Human Life Amendment wordings, which attempt to set the standard of protection within the amendment itself.

CUTTING THE QUESTION:

   The Hatch Human Life Amendment would propose the question of whether or not Congress and the States should have the ability to legislate in the area of abortion or whether unchecked abortion-on-demand should continue. This confuses the stop "Human Life Amendment" rhetoric of the pro-abortionists which centers around hard case "exceptions" and legal complexities of "personhood" and places them on the defensive. To argue against the Hatch Human Life Amendment they will have to argue positively in favor of the Supreme Court decisions and abortion-on-demand, and thus take a position that is supported by only a minority. The pro-life movement would be in a position of advocating a majority position, namely that unrestricted abortions should be ended. it gives the pro-life movement the best advantage during that time when it needs the support of 2/3 of Congress and 3/4 of the state legislatures. Traditional amendment approaches have had the opposite effect of placing the pro-life movement in the most disadvantageous position at exactly the time when they need it to gather the most support.

EXCEPTIONS:
   This approach avoids writing morally unacceptable exceptions to abortions into the Constitution in order to create an amendment that can be passed. Further, since it defers questions regarding the actual legislation prohibiting abortion until a time when only a majority of Congress is needed rather than 2/3, a much more restrictive national standard can actually be obtained with this Amendment.

CONGRESSIONAL BENEFITS:
   With a coordinated major effort the Hatch Human Life Amendment can be passed in this session of Congress. The necessary 2/3 can be obtained through:

1. the votes of those who have already pledged to support other human life amendment proposals;
2. together with those legislators who believe the question should be solved legislatively rather than through a constitutional standard;
3. those legislators who have opposed abortion-on-demand but have favored more exceptions than contained in the traditional Human Life Amendment formulation.

   To vote against this type of Human Life Amendment requires a positive vote in favor of abortion-on-demand and the current political climate is such that fewer politicians are willing to cast such a blatantly pro-abortion vote. Also, many congressmen seek a new way to cast a pro-life vote before the 1982 elections without violating their previous public positions in opposition to a specific Human Life Amendment.

   The same advantages that make possible congressional passage of this type of an amendment also apply to ratification. The amendment presents a question that conforms to the majority of public opinion and will diffuse the planned stop Human Life Amendment attack of the pro-abortion lobby. Again, only those state legislators willing to cast a positive vote for abortion-on-demand will want to vote against it, and it will be politically appealing to the remainder. Less than 1/4 of the state legislatures actually have majorities that favor abortion-on-demand (there were only 4 such state laws passed prior to 1973). While ratification of the traditional forms of a Human Life Amendment would be doubtful, the Hatch Human Life Amendment is ratifiable in a relatively short period of time.

EFFECT
   The practical effect of the Hatch Human Life Amendment would essentially be the same as the traditional Human Life Amendment forms in that it authorizes both congressional and state legislation prohibiting abortion. It is stronger than a states rights formulation and actually stronger than a traditional formulation incorporating exceptions since the Hatch Amendment would allow protection for the unborn free of those exceptions. It also results in removing the abortion issue from the courts, where the pro-life movement routinely loses, to the legislative and political arenas where the pro-life amendment has shown time and time again it can win.

ABORTIFACIENT:
   This amendment provides the only feasible means of actually affecting the.looming abortifacient crisis. 'Within the next few years a new wave of post implantation abortifacients will be marketed and only national legislation restricting manufacturing, distribution and sales of them will prevent this abortion technique from becoming ingrained in our culture. If it is not quickly passed, then the use of the new abortifacients will become widespread and reversing the situation will be much more difficult, if not impossible.

SOCIAL RAMIFICATIONS:
   The longer abortion-on-demand continues, the more acceptable it becomes. This Constitutional Amendment proposal seems to be the only realistic chance for a quick end to abortion-on-demand that establishes a national standard for protection of the unborn, does not write exceptions to abortions into the Constitution, and offers hope of stopping the new abortifacients. The laws that will follow ratification of this Amendment would themselves have a profound teaching effect on the population at large, and really be a first step towards building a pro-life society. If action is delayed, however, we will soon have an entire generation of adults who have known nothing but unrestricted and constitutionally protected abortions during their entire lives. Once that happens, any protection for the unborn in the foreseeable future will probably be impossible. Hence, the Hatch Human Life Amendment may be the single factor that ultimately determines the success or failure of efforts to protect unborn children and build a society that respects life.

OBJECTIONS TO THE AMENDMENT:
   The right to life is an issue which touches people deeply, which arouses passions and vehement commitments.  The wording of a Human Life Amendment has been vehemently debate in right to life circles and strong allegiances have developed to specific languages. Senator Hatch's amendment is new; it is different; and it has been criticized by some pro-life groups. The critics usually urge as alternatives: (1) a human life bill, by which Congress would simply define human life as beginning with fertilization and prohibit abortions; and (2) the most recent NRTL ((paramount" human life amendment which would establish the personhood of the unborn from the moment of fertilization. Volumes could be written concerning this debate. But two brief responses would be offered.

   The human life bill would put Congress on record as disagreeing with the Supreme Court as to when human life begins, and would create a confrontation with the Supreme Court on that issue. Without a doubt, a federal court would immediately enjoin such a bill and eventually the U.S. Supreme Court would strike the law down. Attempts to limit the jurisdiction of lower courts over such an injunction would simply change the name of the court to issue the injunction. The abortion battle would shift once again from the Congress to the courts which continue to strike down every attempt to protect unborn life. Confrontation with the Supreme Court should not be an end in and of itself. Unborn children have enough problems in this world today without being used in this way. The right to life of the unborn child is the cause, not reformation of the court. No unborn lives would be saved by the human life bill. if there was no other hope for action in the next five or more years, then the human life bill would be better than nothing. But the Hatch Amendment is available and can be passed.

   Various different forms of the Human Life Amendment have been introduced into Congress during the past five or more years. Proponents of the different forms of the amendment have now come together and agreed on the recently approved National Right to Life Committee amendment, which most would regard as being the best form of an amendment. it would establish the personhood of the unborn child at all times, beginning with fertilization. It has one major defect, it cannot be passed, either in this Congress or in the foreseeable future. As stated, over 3/4 of the people in this country favor abortion for some reasons, such as rape or incest, a severely handicapped child, or the mother's health. A constitutional provision allowing for the taking of human life for such reasons would be morally objectionable, yet without such a provision, the proposal will be defeated.

   Archbishop John R. Roach, President of the National Conference of Catholic Bishops, testified before the Senate Subcommittee on the Constitution:

   We wish Congress to give its support to an amendment which effectively reverses the Supreme Court's abortion decisions, allows for effective and universal protection of unborn children against abortion, and has good prospects for ratification. In light of these criteria, we support Senator Hatch's proposal.

   There should be no misunderstanding about our own position of the abortion issue. We are committed to full legal recognition of the right to life of the unborn child, and will not rest in our efforts until society respects the inherent worth and dignity of every member of the human race. . .

   We cannot in conscience tolerate the continued destruction of unborn human lives at the rate of one-and-a-half million a year on the hypothetical grounds that some day another, theoretically ideal constitutional solution might be found.

   With unity in the pro-life movement, and with the continued enlightenment of a handful of senators and representatives, and the sharing of our commitment with our fellow Floridians.