On this week’s episode of Stay Tuned, “Amending History,” Preet talked with Harvard Professor of American History Jill Lepore about her “Amend” project, an initiative to archive and classify all failed constitutional amendments. The conversation, in conjunction with Joyce Vance’s Note about the brutality of new state abortion laws in Ohio and Texas, “Are Women Second Class Citizens Now?” led me on a search for past congressional tug-of-wars over proposed constitutional amendments about reproductive rights – and to the 1983 Human Life Amendment. 

On the “Amend” site, researcher Fawwaz Malki Shoukfeh wrote a piece detailing the proposed abortion amendments, noting that the vast majority of them were authored by conservative legislators aiming to restrict abortion access and overturn – via legislation – Roe v. Wade. I began digging into the proposals, and found a particularly robust amount of coverage connected to the 1983 “Human Life Amendment,” co-sponsored by Utah Republican Senator Orrin Hatch and Democratic Missouri Senator Thomas Eagleton

Leading up to this 1983 amendment, as Shoukfeh details, there were hundreds of congressional attempts in the years after Roe to prohibit abortion access. Many of these proposed amendments focused on the “right to life,” others on expanding the definition of personhood to explicitly include the unborn, and yet others on returning jurisdiction over abortion laws to the states. 

In the early 1980s, the states’ rights arguments gained the most traction. Hatch, who had crafted a “right to life” amendment in 1977,  first introduced an amendment designed to de-federalize abortion access in 1981. 

The Senator boiled down the main text of the amendment to a very concise ten words: 

A right to abortion is not secured by the Constitution. 

The amendment went on to give states particular authority to restrict abortion access: 

The Congress and the several States shall have concurrent power to restrict and prohibit abortion: Provided, That a provision of a law of a State which is more restrictive than a conflicting provision of a law of Congress shall govern.

The amendment passed the Senate Judiciary Committee 10-7 in March 1982. Notably, now-President Biden voted in favor of the amendment, though he stated before the tally that the vote was his most difficult as Senator and that he was unsure that he had “a right to impose” his perspective on the nation. The amendment, however, got mixed up in competing anti-abortion proposals and never saw full Senate debate. 

In July 1982, Hatch gained more vocal support from President Reagan, who sent a pre-taped video to the National Right to Life Convention in New Jersey, in which he urged lawmakers to explore Hatch’s proposal and other plans to undo Roe

The time has come for Congress to face the national tragedy of abortion, to fully discuss and debate on the House and Senate floors the heartbreaking dimensions of this tragedy.  

Hatch, an Utah Mormon, was a likely voice to answer Reagan’s call. Eagleton, Hatch’s co-sponsor, however, might appear to casual historical observers as a stranger anti-abortion advocate. Eagleton is primarily remembered as a progressive opponent to Vietnam and as George McGovern’s initial running mate in his 1972 campaign against President Nixon. (Eagleton was he was forced to drop out due to having received shock therapy years earlier.) But although he was known as a liberal, Eagleton was a Roman Catholic who fiercely opposed abortion. 

Hatch and Eagleton re-introduced the amendment to the Senate Judiciary Committee on January 26th, 1983. Three months later, the Senate Judiciary Committee narrowly voted, in what was technically a 9-9 tie, to send the Human Life Amendment to the full Senate. This time, Biden voted against the bill, as did Wyoming Republican Alan Simpson, who had supported the 1982 edition.

In this 1983 edition, the final proposed amendment cut out the language about states, simply leaving the 10-word phrase, A right to abortion is not secured by the Constitution – a decidedly cagey way of attempting to overturn Roe

Hatch recognized that the Judiciary Committee had not exactly given him a ringing endorsement. “The important thing is the debate,” he told the New York Times. “Sometimes it takes years to get a constitutional amendment through.” 

In the same Times article, Joanne Howes, a representative of Planned Parenthood Federation of America, argued that Hatch recognized that his amendment didn’t stand a chance: “There aren’t the votes out there to pass it. We know it and they know it.”

Still, on June 27th and June 28th, 1983, the full Senate discussed the Human Life Amendment. The back-and-forth on the Senate floor marked the first time any of the anti-abortion constitutional amendments had reached the body – most prior debates, like the 1977 struggle over the Hyde Amendment, which banned Medicaid funds for abortions, had focused on federal appropriations and procedure. 

The Senator’s statements – in a body then composed of 98 men and two women – offer an unvarnished, decidedly broad look at their views on reproductive rights. The longer debate on June 28th, from which I quote, can be downloaded here

Hatch spoke extensively, arguing that Americans should help women to become mothers rather than allowing them to get abortions: 

By allowing abortion to be written into our Constitution as a fundamental right, we have helped to substitute a harsh and unloving legalism for the spontaneous love and acceptance of others which should be the central dynamic of the family and an overriding goal for this civilized society. By erasing this tragic error, we can perhaps set out anew on the road toward a more enlightened and constructive attitude with regard to all our Nation’s children.  

Hatch also threw in some Cold Warrior rhetoric, referencing China’s recently-implemented “One Child” policy:

Only Communist China has a more permissive policy on abortion of all countries in the world today.

Even more aggressive than Hatch in his anti-Communist speechifying was Alabama Senator Jeremiah Denton, a Vietnam POW known for his widespread calls for teenage chastity: 

Are we regarding life as inalienable? Or are we making it an alienable right which judges, doctors, and pragmatist quibblers can dispense with, dispose of, as they see fit? If so, we are emulating the Chinese in deciding that girl babies are undesirable; if they are not wanted, we will destroy them.

Denton also offered a sort of Southern Gothic metaphor from his home state to discuss those who were in favor of reproductive freedom: 

We are emulating the chicken breeders down in Alabama who determine that if the sex of a chicken is male, it must be destroyed because we do not economically need that many male chickens.  

Connecticut liberal Republican Lowell Weicker, who opposed the amendment, argued that the blandness of the amendment’s text hid the Denton-esque extremism of those who supported the change: 

They want a total ban. They want to sort of soften the public relations image right now, while we are debating this amendment. For they have stood up time and again on this floor and voted amendment after amendment to take the abortion argument to its ultimate limit – no abortion for anybody under any circumstances. 

And Weicker argued that anti-abortion forces were often woefully avoidant of the “gender gap” and would not acknowledge the surreality of men making decisions about women’s bodies: 

The papers lately have been full of talk about the so-called gender gap. Even those in the highest Government circles are beginning to acknowledge that it exists. Surely that gap widens every time a legislature overwhelmingly made up of men makes a law that primarily affects women.  

Freshman New Jersey Senator and professional basketball phenomenon Bill Bradley echoed Weicker’s concerns about men dictating women’s freedoms: 

I feel uneasy, as a man, determining for women whether they will have the right to a legal abortion since it is a decision I will never be asked to make. It is one of the most deeply personal decisions an individual can make

Meanwhile, California Democrat Alan Cranston focused on the likely dysfunction – in our current landscape not hard to see – of a state-by-state abortion system that would particularly harm impoverished women: 

In those States where abortions became illegal, we would see a return to the days when unskilled abortionists preyed upon desperate women. The abortion mortality rate, which has almost disappeared, would again rise. Legal and safe abortions, however, would remain an option for those women able to travel to other States or countries. The less affluent would be denied those choices.  

Cranston also argued that outlawing abortion would create a culture of mistrust in the country that would resemble the days of Prohibition. He reflected on the seamy 1920s: 

It bred disrespect for the law among our people, made criminals out of otherwise law-abiding citizens, and created an industry of illegal profiteers and corruption. Adoption of this amendment would invite the same dire consequences.  

Massachusetts Senator Edward Kennedy highlighted what he viewed as a self-defeating Republican legislative program – a simultaneous focus on cutting back social programs that could help reduce abortions: 

It is disturbing that so many proponents of this amendment have voted consistently against the help and support that can mean fewer abortions. They have cut funds for maternal and child health programs that prevent fetal disease and help a mother carry a child to term. They have cut immunization programs that protect against crippling birth defects. They have opposed education and job training programs that give the poor and disadvantaged an alternative to despair and dependency. They have sought to abolish programs that offer family planning services for those who wish them. In the name of less Government, they turn their back on proven alternatives to abortion, and then seek to resolve the problem by the most intrusive kind of Government of all.  

And Kansas Republican Nancy Kassebaum – one of only two women, alongside amendment supporter and Florida Senator Paula Hawkins, to speak on the floor during the debate – took a similar tack to Kennedy, albeit with a conservative twist. She stated that she found abortion to be a “tragedy,” but that on conservative principle she could not abide further government. 

The final tally was 49 for and 50 against the proposed amendment, a very significant 18 votes short of a two-thirds majority. And even if the amendment had improbably passed, a long road would have been ahead: securing a supermajority House vote and attempting to get three-quarters of states to ratify the change. 

Although the failure was expected, the Wall Street Journal argued that Hatch’s inability to get 50 votes was telling: “The fact that supporters couldn’t even muster a majority was a surprise and setback.” 

Oregon Republican Bob Packwood, who had helped to lead the opposition to the amendment, told the press that its defeat signaled a sea change:

The right-to-life movement has crested and they’re on the decline

Forty years later, the contention that the mostly-forgotten Human Life Amendment’s defeat signaled the long-term diminution of anti-abortion activism appears hopelessly naive, particularly after Dobbs. The 1983 debate, however, remains a powerful document of how a proposed amendment led to an airing that, even if not as significant as it initially appeared, showed bluntly the ideological fault lines that continue to define the fight for reproductive freedom. 

For more on abortion and the Constitution, read Lepore’s New Yorker piece published after the Dobbs leak in May 2022. And for another Time Machine piece on reproductive rights battles in the decade after Roe v. Wade, check out this September 2022 piece on the Hyde Amendment. 

And head to my Twitter account for supplemental archival threads on each Time Machine piece: @DavidKurlander.

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