Washington
By ROBERT MACKAY

Abortion and morality

THE Supreme Court, in affirming the constitutionality of an amendment by Illinois Congressman Henry Hyde that bans federal financing of most welfare abortions, was narrowly and sharply divided on philosophic fundamentals. The court ruled 5-4 that the government has a legitimate interest in protecting potential life.

The dissenting justices seemed to say that a person's incapacity to exercise a right constitutes governmental denial of that right. Justice William Brennan, joined in his dissent by Justices Thurgood Marshall and Harry Blackmun, said that denial of public funds for medically necessary abortions "both by design and in effect serves to coerce indigent pregnant women to bear children that they would otherwise elect not to have."

Justice Potter Stewart, in the majority opinion, said the Hyde Amendment does not coerce women at all, since they still have the choice to choose between getting an abortion or carrying the fetus to full term. "The fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all," Stewart wrote.

The amendment forbids federal funding of abortions for the poor, except when the woman's life is in danger or in certain circumstances where pregnancy resulted from rape or incest. Under the amendment, a doctor would have to decide if the woman would die as a result of bearing the child. Any other medical problems resulting from the pregnancy would not be justification for a federally funded abortion. The court ruling affirming the constitutionality of that amendment comes three years after the Supreme Court held the Constitution does not require states to finance elective abortions for the needy.

The court majority June 30 reversed a ruling by a federal district judge in New York, who found the amendment unconstitutional and ordered the government to resume financing Medicaid abortions. The Supreme Court had allowed the funding to resume pending its decision.

Perhaps the word "coerce" is too strong, but Congress' denial of public funds for abortions does appear to impose moral standards on the public. Congress does subsidize other, less controversial health care costs — why not abortions?

As Brennan wrote in dissent: "The Hyde Amendment is a transparent attempt by the legislative branch to impose the political majority's judgment of the morally acceptable and socially desirable preference on a sensitive and intimate decision that the Constitution entrusts to the individual."

But, the government imposes moral standards on the public in other areas — whether it is right or wrong. The right to choose to read pornography has been granted broad constitutional protection. Under Brennan's formulation, a state subsidizing only the reading of non-pornographic materials in schools would be violating the constitutional rights of students who want to read pornographic books in the school library. Those same students, however, can exercise their constitutional rights by reading pornographic material not funded by public money.

As Stewart wrote, the Hyde Amendment "places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, by means of unequal subsidization of abortion and other medical services, encourages alternative activity deemed in the public interest. ... 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."

But Justice John Paul Stevens, in his dissent, said, "In my judgment, these amendments constitute an unjustifiable, and indeed blatant, violation of the sovereign's duty to govern impartially."

And, in the case of medically necessary abortions for the poor, such decisions can have disastrous effects. Marshall wrote, "If abortion is medically necessary and a funded abortion is unavailable, they must resort to back-alley butchers, attempt to induce an abortion themselves by crude and dangerous methods, or suffer the serious medical consequences of attempting to carry the fetus to term." But Chief Justice Warren Burger and Justices Lewis Powell, Byron White and William Rehnquist joined Stewart in upholding the Hyde Amendment.

Hyde hailed the Supreme Court's decision and said the ruling eliminated the argument that congressional restriction on abortion funding is unconstitutional. "We in Congress never thought it was, and we are accordingly happy that the court has confirmed our considered judgment." And Hyde is not through yet.

He said he would like to see "an amendment to the U.S. Constitution to protect all pre-born life. But we are some distance from that happening." He said it probably would take two more elections before enough anti-abortion members are elected to Congress to provide the necessary two-thirds vote to submit an anti-abortion amendment to the states for ratification.

Hyde's Republican colleagues are wasting no time. The GOP platform this election year endorses such a pro-life amendment.

September 1980/Illinois Issues/33