As RTL Hearings Begin . . . A Look At The Bayh Subcommittee
By WILLIAM H. MARSHNER
March 7, 1974
WASHINGTON, D.C. – This week Sen. Birch Bayh’s Sub-committee on Constitutional Amendments has begun the long-awaited and hopefully historic hearings on right-to-life amendments. In anticipation, people have been talking a lot about the sub-committee members, trying to figure out where they stand, trying to spot at least one Senator who might take the leadership for unborn life.
It has not been happy hunting. The powerful figures on the sub-committee (Bayh, Eastland, Ervin, Byrd of West Virginia, are all either hostile to the pro-life cause or else uninterested in anything save a States’ rights approach or else wrapped in clouds of darkness like Yahweh on the mountaintop. Then there are the lesser figures. Tunney of California is supposed to be a Catholic, but nobody has any reason to believe that he will act like one. Cook of Kentucky, on the Republican side, is a convert to Catholicism but has failed thus far to utter a sound. Hiram Fong allegedly has an open mind. Such are the unknown quantities people have been juggling.
Nobody has said much, though, about the subcommittee staff, limited in this case, in practical effect, to one man, the Democratic majority counsel, the man of high influence but low visibility who has actually mapped out the March 6th and 7th hearings, invited certain witnesses, refused to invite other witnesses, postponed whole categories of witnesses, fixed the order of topics — in a word, the man who has made the detailed decisions that will vitally affect the ability of pro-life forces to communicate with Congress and the American people. Who is this majority counsel? What is he thinking about abortion? What has he read on this subject, so little understood? Has he grasped the nature of our commitment? Does he think we have a case to make, and an arguable and perhaps ultimately convincing case, or does he think we are cranks riding a hobby horse?
ENTER MR. HECKMAN
These questions have assumed a special urgency within the last two weeks, as details of the March hearings have become public knowledge. After all, according to our point of view, the case against abortion rests upon a solid bedrock of fact (medical, sociological, and jurisprudential); the affirmation of abortion’s intrinsic evil is the inescapable result we think, of applying moral reasoning to this body of fact; and the moral reasoning in question is not based upon obscure premises but upon principles that enjoy at least the lip service of the whole world.
How strange it appears, then, from our point of view, that the Senate hearings have been structured in such a way as to highlight not facts but religious differences! After the members of Congress themselves, who are always invited to testify first, pro forma, the crucial second day of the hearings, the day most likely to receive televised coverage, will be devoted to official spokesmen of religious denominations. Ghastly arrangement from our point of view. No single misunderstanding is more dangerous to our cause politically than the superficial impression that abortion is mostly a Catholic hang-up. And yet here we are, forced by the very structure of the hearings to play into the hands of mass media. (Sen. Bayh will allow television — already predisposed to spread that very misunderstanding.) Who is responsible for this state of affairs and why?
The man responsible, the majority counsel, is J. William Heckman, thirty years old, who says that until a short time ago he had never read anything about the subject of abortion except the Supreme Court’s decision.
Q. Mr. Heckman, what are your particular qualifications to have the major impact you will inevitably have on this issue?
A. “Well, I’m not sure, and of course, some people would take the position that no male has a right to have an impact on it. … I have no special qualifications in this area. Up until a few months ago, I was quite ignorant. I had read nothing but the Supreme Court decision. Now I am trying to educate myself.”
Q. How are you doing this? Are you reading the major books? (like John T. Noonan’s Lawrence Lader’s, Germain Grisez’)
A. “No. They were written before the decision, weren’t they? I asked the Library of Congress for a bibliography, mostly law journal articles and periodical literature. I am looking at commentary written since the Supreme Court decision.”
There is a horrible inevitability about an answer of this kind. You don’t get a job like Bill Heckman’s, three years out of Yale Law School, by lolling around in the green, humanistic pastures, you don’t “loaf” or “invite your soul.” You stick to the law books, you stick to politics.
Q. How long have you had this job, Mr. Heckman?
A. “A little over a year. Almost exactly thirteen months.”
Q. How did you get it?
A. “Well, you know, it mostly depends on who you know. I happened to know the man who was counsel before me. I knew he was leaving, so I knew the job was open.”
A LITTLE BIT OF HISTORY
Heckman was in a peculiarly good position thirteen months ago to know important lawyers, like the former subcommittee counsel, P. J. Mode. Heckman was hired directly out of law school by the prestigious downtown Washington firm of Clifford, Warnke, Glass, McIlwain, and Finney. Prestigious? Well, the Clifford, you see, is former Defense Secretary Clark Clifford.
I tried to find out something about the general qualities of mind, the breadth of “moral imagination” if you will, in this young bachelor who professes no special expertise in the rending controversy at hand. I wonder: “What is your favorite book among all you have ever read?” He wouldn’t be prepared to choose. “What is the favorite book that you have read in the last year?” He named an obscure political satire. “What is your favorite music?”
A. “You mean composer? Well, I suppose the operas of Puccini. But how does this help you?”
Never mind; it would take a while to explain. He wants me to stick to business.
Q. Would you care to state a religious preference?
A. “Hum. I was raised Episcopalian,” neatly distinguishing the question.
Very well, I will stick to business.
Q. Is it true that only religious leaders are being invited for the second day of the hearings?
A. “That’s right.”
A. “Chance, mostly.” (I am paraphrasing here.) “Sen. Bayh got a lot of pressure in Indiana from the Catholic Church to start these hearings. So, since the religious pressure seemed to be paramount, the Senator thought we should deal with the religious aspects first.”
Q. Doesn’t this in effect weight the hearings in favor of the opponents of the right-to-life amendment who are always saying abortion is a religious issue?
A. (Speaking slowly rather hesitantly) “It is not intended to do that. … I never thought of it that way . . . it’s just that the most vocal groups on both sides have tended in many ways to be religiously affiliated.”
Not an implausible answer, coming from Mr. Heckman. I think to myself: if I had done virtually no reading on the medico-moral and philosophical aspects of abortion, wouldn’t I think the hubbub was religious in essence? (Of course, there is a profound and sophisticated sense in which religion after all is central to the whole matter, but this sophisticated sense is virtually unknown in the public controversy and hence irrelevant in this context.)
The most diagnostic thing I can find out is what Heckman thinks about the humanity of the fetus. In the middle of answering a different question, almost offhandedly he tells me: “I just don’t see any way of settling that.” All right, now we know where we are.
THE NEXT STEP
Sometime after March 7th, the hearings are supposed to resume with medical testimony. If the humanity question is undecidable, what does Heckman think the doctors are going to talk about? In answer to at least two separate questions, he told me this: “There are difficult definitional problems with the two amendments (Buckley and Hogan-Helms). What for example does ‘from the moment of conception’ mean?
. . .What is the definition of conception? … To what extend does this get into contraception?”
Let the right-to-life doctors be warned! If they are not prepared to attack and eliminate the semantic confusions spread by the other side, the pro-life amendments are going to be dismissed as unworkably vague.
As to the legal questions, Heckman mainly wants to know two things: First of all, the constitutional history behind the current abortion law, and secondly “by giving the fetus protection what effect will there be on tax law, inheritance, and tort law?” In answers to further questions, I picked up the following interesting facts:
- No decision will be made on when the hearings will resume until Sen. Bayh has met with the subcommittee members sometime after the seventh;
- No decision has been made as to whether the resumed hearings will include expert testimony from philosophers and moralists. Heck- man hopes the “religious leaders” will address themselves to such questions thoroughly enough to “cover” that angle;
- Over 300 people thus far have approached Heckman asking to testify. Very few of them will be heard. Everyone, however, is free to submit testimony. In fact, the record will be held open after the denominational spokesmen testify on the seventh so that anyone who wants to dissent in written testimony may do so (watch for a dissent from the Catholic Church’s position, by the way, from an outfit calling itself “Catholics for a Free Choice”);
- On March 4th, the hearings will be held in the small (capacity about fifty) hearing room of the Senate Judiciary Committee. Sens. Helms and Buckley are scheduled to speak as well as Reps. Zwach and Abzug. As of Feb. 21st, no other Senators or Congressmen have asked to testify (but many of them did not realize they were supposed to ask);
- On March 7th, the hearings will be moved to much more spacious quarters (Room 1202, Dirksen Office Building). Three “panels” are scheduled to testify. First is the USCC panel consisting of Cardinals Krol, Cody, Manning and Medeiros plus staff personnel. Heckman had nothing to do with setting up this panel; he did not even specify that it had to be composed of bishops or even clergymen. Its composition was the USCC’s own idea. (Imagine that!) The Bishops took a bad situation and made it worse. On whose advice, I wonder?
Then will come a pro-abortion panel set up by Heckman in consultation with Ms. Betsy Stengel, a lobbyist for the “Religious Coalition for Abortion Rights.” Members of the second panel will be: Bishop A. James Armstrong of South Dakota (Methodist), Rabbi Balfour Brickner (United Hebrew Congregations of America), Mrs. Jane Stitt of Texas (Presbyterian Task Force on Abortion Reform), and Barbara McNeal, professor of theology at Colgate-Rochester school of theology.
Finally there will be a third panel consisting of non-Catholic denominations opposed to abortion, conveniently set up for Heck- man by Warren Schallert, of the National Right-to-Life Committee (without Shallert’s well-intended but rather naive assistance, Heck- man might have been forced to make room for dozens of pro-life denominations). Members of the third panel will include Rabbi Israel Klavan (Rabbinical College of America), Mrs. Jean Garton (Lutheran Church-Missouri Synod), and Mr. David Lawrence McKay (president of the Eastern States’ Mission of the Church of Jesus Christ of Latter Day Saints). A fourth member of the panel was not yet selected as this story went to press.