(Excerpted from "Governing America; An Insider's Report From the White House and the Cabinet," copyright 1981 by Joseph A. Califano Jr., published by Simon & Schuster Inc. All rights reserved.)
Shortly after becoming HEW secretary, I discovered that few, if any, of my colleagues shared my view or the president's on abortion.
Everyone in the top HEW management who expressed his opinion disagreed with mine. Only at the Chirstmas open house, when they streamed through my office to shake hands and have a picture taken, would HEW employes -- mostly the blacks or Catholics -- whisper, "Don't let them kill those black babies," or "God bless you for your stand against abortion."
The same was true at the White House. A few staff members, such as Midge Costanza, were publicly outspoken in favor of federal funding for abortion. Eileen Shanahan [HEW assistant secretary for public affairs] called me on July 5, 1977, and said she was going to a meeting at the White House, set up by Midge Costanza to organize the women in the administration to urge Carter to change his position on abortion.
Shanahan said they might draft a petition asking to see Carter and setting forth their views. I was incredulous that a White House staffer would organize such a meeting. I had no question about Shanahan's loyality, but was appalled at Costanza's judgment and seriously questioned her loyalty to Carter.
Two of the other top appointees at HEW, Assistant Secretary for Human Development Service Arabella Martinez and Assistant Secretary for Education Mary Berry, also went to the meeting.
A story was in The Washington Post on the morning following the Friday afternoon meeting. Jody Powell called Shanahan at about 11 a.m. "I just wanted to find out what right you-all think you had to have a meeting like that in the White House?" Before Shanahan could respond, he answered, "No right, none at all."
"We have a right to express our views," Shanahan began.
Powell snapped, "At least General [John K.] Simglaub [who disagreed with the president's policy in Korea] resigned. I can respect him."
"I did not give up my First Amendment rights when I joined the administration," Shanahan shot back.
Powell was incensed. "Most of these turkeys wouldn't have a job if it weren't for the president."
Shanahan spoke firmly, in the tense, modulated tone her voice often assumed when all her energy was devoted to maintaining her composure: "These women left damn good jobs to join the administration. Most are better qualified than men who got jobs of the same rank."
"Not you, Eileen, I don't include you," Powell responded defensively to the former economics correspondent for The New York Times, "but these turkeys would not have jobs if the president hadn't given them one."
When Shanahan told me about this conversation later that afternoon, she was still trembling with indignation and rage. Fortunately, she found great satisfaction in her work and she and I had developed a relationship of sufficient respect that she decided not to resign.
I assumed Carter would be enraged when he heard about the women's meeting -- and he was, privately, and at the Cabinet meeting on Monday, July 18.
I don't mind vigorous debate in the administration. As a matter of fact, I welcome it," Carter said. "But I do not want leaks to the press or attacks on positions we've already listened to any campaign statements, they should know my position."
Carter then contrasted Commerce Secretary Juanita Kreps and HUD Secretary Pat Harris with the group of women who met with Midge Costanza.
Kreps raised her hand to speak. The president recognized her. In her soft-spoken polite, and respectful manner, she said: "Mr. President, I appreciate the intent of your comment about me and I, of course, am loyal to you as we all are." What well-chosen words, I thought.
"But" -- Kreps paused to make certain we were appropriately postured on the edge of our Cabinet chairs -- "you should not take my absence from the meeting of the women as an indication of support for the administration's position on abortion."
Carter seemed somewhat surprised, not at Kreps' position, but at the quiet firmness with which she expressed her view in front of the Cabinet and the "barbershop" patrons (as I sometimes thought of the crew of aides and note-takers that sat against the wall in the Cabinet Room).
From across the Cabinet table, Pat Harris promptly agreed with Kreps, but promised to keep her views within the official family. The president, so uncomfortable that he almost sounded defensive, indicated he was of course not talking about "Juanita and Pat," and reiterated his desire for "full debate," but he insisted on "complete loyalty" once an administration decision was made.
When the president walked in to begin the Cabinet meeting two weeks later, on Aug. 1, the first Costanza had attended after her women's meeting, he put his arm around her, kissed her, and said, "Nice to see ya, darlin'."
Whatever distance the president wanted from me on other policies, like school integration, the anti-smoking campaign, or Social Security cuts, he held me at his side whenever he spoke of abortion:
During a March, 1977, Clinton, Mass., town meeting and on a Los Angeles television show in May, 1977 ("Joe Califano, who is secretary of HEW, feels the same way I do against abortions"); in Yazoo City, Miss., in July 1977 (". . . the secretary of HEW agrees with me completely on this issue . . ."); at a Bangor, Maine, town meeting in February, 1978 ("Joe Califano, who is head of HEW, is a very devout Catholic . . . I happen to be a Baptist, and his views on abortion are the same as mine"); with college and regional editors and at general press conferences.
While I could not predict the route or timetable, I sensed that the abortion issue was inexorably headed for my desk.
On June 20, 1977, the Supreme Court decided in Beal v. Doe and Maher v. Roe that the federal government had no constitutional obligation to funded discretionary abortions that were not medically necessary.
Like so many ardently awaited Supreme Court decisions, this one created as much controversy as it resolved. The court had cleared the way to having the Hdye amendment go into effect, thus restricting Medicaid funding to abortions where the life of the mother would be endangerd if the fetus were carried to term. The court had also moved the debate back into the political arena, to the floors of the House and Senate and the HEW regulatory process.
I asked my staff to prepare a guideline to implement the Hyde amendment. Judge Dooling in Brooklyn would now have to withdraw his order blocking enforcement of that amendment and I wanted to be ready to issue the necessary instructions the same day the judge acted. Any delay would only give the pro- and anti-abortionists more time to demonstrate. If I could act immediately, there would be only one day of newspaper and television coverage.
As we planned to move as quickly and quietly as possible, the president was hit with a question about the Supreme Court decision at his July 12 press conference.
I was signing routine mail, casually watching the televised conference, when Judy Woodruff of NBC News caught my attention with a question asking how "comfortable" the presidnet was with the recent Supreme Court decision, "which said the federal government was not obligated to provide money for abortions for women who cannot afford to pay for them."
The president reiterated his view that "I would like to prevent the federal government financing abortion."
Woodruff followed up: "Mr. President, how fair do you believe it is then that women who can afford to get an abortion can go ahead and have one and women who cannot afford to are precluded?"
In an echo of a statment by John Kennedy, the president answered, "Well, as you know, there are many things in life that arfe not fair, that wealthy people can afford and poor people can't. But I don't believe that the federal government should act to try to make these opportunities exactly equal, particularly when there is a moral factor involved."
I had been leaning back in my chair and almost went over backward. I was stunned at the president's response. It was clear to me that he had no idea of the bitter reaction his comment would incite. It couldn't have been deliberate. At worst, it was an on-the-spot, clumsy attempt to appeal to fiscal conservatives and right-to-lifers; at best it was an iept, off-the-top-of-his-head answer to a question for which he was not prepared.
Within an hour Eileen Shanahan was in my office, tears of anger welling in her eyes, to tell me that the press wanted my comment on the president's "life is unfair" remark. "None, none, none," I said.
On Aug. 4, 1977, Judge Dooling reluctantly lifted his injunction against enforcing the Hyde amendment. Within hours, I announced that HEW would no longer fund abortions as a matter of course, but would provide funds "only where the attending physician, on the basis of his or her professional judgment, had certified that the abortion was necessary because the life of the mother would be endangered if the fetus were carried to term."
On Sunday, Oct. 16, I was scheduled to appear on the ABC-TV program "Issues and Answers." On the Saturday morning preceding the program, I called the president to review the administration's position on abortion. The president said that his position had not changed since the campaign.
"One issue in sharp dispute is how to handle victims of rape or incest," I said, asking whether he objected to funding abortions for rape or incest victims and referring to his July 12, 1977, press conference. There Carter had said that the federal government "should not finance abortions except when the woman's life is threatened or when the pregnancy was the result or rape or incest. I think it ought to be interpreted very strictly."
I asked the president whether his "very strickly" interpretation was related to the dispute between House and Senate conferees over medical procedures short of abortion for rape or incest performed shortly after the act, as distinguished from outright abortions.
Carter said he was unaware of the dispute, but wanted to stay out of it. I said that it might not be possible for me to do that.
Then leave the administration position ambiguous on this issue, he suggested. "Above all I want people to understand I oppose federal funding for abortion in keeping with my campaign promise."
Wherever I went, pickets greeted me.
When I spoke in Oregon at a Democratic political fund-raiser, several hundred demonstrators from both sides paraded outside the Hilton Hotel. The Oregon Legislative Emergency Board was scheduled to decide in 10 days whether to replace lost federal abortion funds with state money. The pro-abortionists angrily accused me of trying to inject my own views into the Oregon fight, which I had not heard of until arriving in Portland.
The sincerity of the Oregon demonstrators and others like them took its toll on me: earnest pleas of both sides were moving. None of the light-hearted sidebars that accompanied most demonstrations -- even some during the Vietnam war -- were present during pro- and anti-abortion rallies.
When I avoided demonstrators by going out a side entrance, as I did that evening in Oregon, I felt like a thief in the night, denying these committed marchers even in Oregon, I felt like a thief in the night, denying these committed marchers even the chance to know they had been at least heard, if not heeded.
After interminable skirmishing, Congress passed a bill under which no HEW funds could be used to perform abortions, "except when the life of the mother would be endangered if the fetus were carried to term, or except for such medical procedures necessary for the victims of rape or incest, when such rape or incest has been reported promptly to a law enforcement agency or public health service; or except in those instances where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term when so determined by two physicians."
As soon as President Carter signed the bill on Dec. 9, it landed on my desk, for the final provision of the compromise language stated: "The secretary shall promptly issue regulations and establish procedures to ensure that the provisions of this section are rigorouly enforced."
I issued the regulations on Jan. 26, 1978. Attorney General [Griffin B.] Bell concluded that they were "reasonable and consistent with the language and intent of the law." The New York Times editorialized that I had "done [my] duty. . . . He has interpreted the nation's unfair abortion law fairly . . . On several controversial issues Mr. Califano and his lawyers have performed admirably, hacking their way through a thicket of ambiguities in the law that passed a bitter and divided Congress in December after months of heated debate."
The right-to-life lobby disagreed. Thea Rossi Barron, legislative counsel for the National Right to Life Committee, called the regulations an example of "a rather blatant carrying out of a loophole to allow abortion on demand." The pro-life groups were particularly disturbed that the regulations gave 60 days for rape and incest victims to report the incident and still be entitled to a federally funded abortion. But the most severe critic of that provision was Jimmy Carter.
In testifying before the House Appropriations Committee on the morning of Feb. 21, 1978, less than a month after issuing the regulations, Chairman [Daniel J.] Flood and Republican Robert Michel pressed me to provide an administration position on tightening the restrictions on abortion.
I called the president during the luncheon break. The president wanted the reporting period for rape or incest shortened. He was "not happy" with the 60-day time period in the regulations. s"I believe such instances are reported promptly," he said coolly.
I told him that the 60-day period was my best judgment of what Congress intended in the law. Carter "personally" believed 60 days permitted "to much opportunity for fraud and would encourage women to lie."
"But what counts is what the congressional intent is," I argued.
The president then said he thought the regulations did not require enough information. He particularly wanted the doctor to report to Medicaid the names and addresses of rape and incest victims.
The president was also inclined to reporting of any available information on the identity of the individual who committed the rape or incest. Carter said, "Maybe some women wake up in the morning and find their maidenhead lost, but they are damn few. That actually happened in the Bible, you know."
The concern of the president and others that the regulations were too loosely drawn in the rape and incest area has not turned out to be justified. During the first 16 months under the law and regulations, until shortly before I left HEW, only 92 Medicaid abortions were funded for victims of rape or incest.
The overwhelming majority of Medicaid-funded abortions --84 percent of 3,158 performed -- were to save the life of the mother; 522 were to avoid severe and long-lasting health damage to the mother.
I came away from the abortion controversy with profound concern about the capacity of national government, in the first instance, to resolve issues so personal and so laced with individual, moral, and ethical values.
The most secure way to develop a consensus in our federal system is from the bottom up. But once the Supreme Court established a woman's constitutional right to an abortion against the backdrop of federally funded health care programs, the issue was instantly nationalized. As each branch acted -- the Congress with the Hyde amendment, the executive with its regulations, and the Supreme Court in its opinions -- the mandates from the top down generated as much resentment as agreement.
This is true even though, by 1978, many states had more restrictive provisions on abortion funding than the national government.
In 1979, [the court] applied an even stricter standard to both HEW and defense appropriations, by eliminating funding in cases of long-lasting physical health damage to the mother, thus funding abortions only when the life of the mother is at stake or in cases of rape or incest, as Carter and I proposed for HEW in February, 1978.
In personal terms, I was struck by how infinitely more complex it was to confront the abortions issue in the broader sphere of politics and public policy in our pluralistic society than it had been to face it only as a matter of private conscience. I found no automatic answers in Christian theology and the teachings of my church to the vexing questions of public policy it raised, even though I felt secure in my personal philosophical grounding.
I was offended by the constant references to me as "Secretary Califano, a Roman Catholic" in the secular press when it wrote about the abortion issue. No such reference appeared next to my name in the stories reporting my opposition to tuition tax credits favored by the Catholic Church or my disputes with the Catholic hierarchy on that issue.
Throughout the abortion debate, I did -- as I beleive I should have -- espouse a position I deeply held. I tried to recognize that to have and be guided by convictions of conscience is not a license to impose them indiscriminately on others by one-dimensionally translating them into public policy.
Public policy, if it is to serve the common good of a fundamentally just and free pluralistic society, must balance competing values, such as freedom, order, equity and justice. If I failed to weigh those competing values -- or to fulfill my public obligations to be firm without being provocative, or to recognize my public duty once the Congress acted -- I would have served neither my private conscience nor the public morality. I tried to do credit to both. Whether I succeeded is a judgement others must make.