An anniversary of consequence

On June 30, 1980, the U.S. Supreme Court issued its decision in Harris v. McRae and upheld the constitutionality of the Hyde Amendment, which had prohibited federal funding for Medicaid abortions since 1976. Three decades later, Harris v. McRae remains the pro-life movement’s most important legal victory since Roe v. Wade created a “right to abortion” in 1973. That victory is now jeopardized by Obamacare, and by the insouciance of some Catholics about the extension of the Hyde Amendment to future federal health-care legislation.

On this 30th anniversary, therefore, it’s important to remember just what was achieved in Harris v. McRae.

First, writing for the Court majority, Justice Potter Stewart made clear that, whatever putative “right to abortion” may be found within the interstices of the Constitution, such a “right” does not imply that the federal government can compel American taxpayers to pay for the deaths of innocents. As Justice Stewart put it, “Regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in [Roe v. Wade], 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.” In plain language: any putative “right to abortion” does not carry with it the power to make me pay for abortions.

Second, the majority in the Court’s 5-4 decision accepted the Solicitor General’s argument that the Hyde Amendment is, as my friend Edward Grant has written, “rationally related to the interest we all must have in preserving nascent human life and encouraging childbirth.” In other words: pregnancy is not a disease, the choice to terminate a pregnancy is fraught with public implications, and the state has an interest in supporting the begetting and safe delivery of its future citizens.

Third, the Court rejected the plaintiff’s claims that the Hyde Amendment’s prohibition on federal funding of abortion involved an imposition of Catholic doctrine in violation of the First Amendment’s ban on religious “establishment.” In plain language: the abortion debate is not “sectarian,” but engages fundamental issues of justice in which everyone has a stake.

The heroes of this victory should also be remembered at its 30th anniversary: Congressman Henry J. Hyde; Professor Victor Rosenblum of Northwestern University, Dennis Horan, Patrick Trueman, Thomas Marzen, and other members of the legal team at the Americans United for Life Legal Defense Fund; James Buckley and Jesse Helms, who, with Congressman Hyde, entered the case as intervening-defendants. Some of the young lawyers who worked with the defense team in Harris v. McRae have continued to make names for themselves as national pro-life leaders: Carl Anderson, now Supreme Knight of the Knights of Columbus; Robert Destro, now of the Catholic University of America’s law school; and Paige Comstock Cunningham, a longtime board member of Americans United for Life. All honor to them.

Their achievement, however, is not secure. The Hyde Amendment, although deemed constitutional, still had to be re-enacted in every Congress, every year following Harris v. McRae—a fact of legislative history that raises the most serious questions about the Obama administration’s claim that the Hyde Amendment is such “settled law” that it need not be replicated in the various legislative iterations of Obamacare. The administration’s “deal” with certain Democratic congressmen to include a Hyde Amendment-type ban on abortion funding through a presidential executive order is the thinnest of barriers—some would say, a non-existent barrier—against claims that abortion is a “necessary” form of health care that requires taxpayer funding. That some Catholic members of Congress and some Catholic health-care advocates have fallen for this sleight-of-hand reflects either grave misunderstanding of the law or bad faith.

The Hyde Amendment is a continual bone in the throat of abortion advocates, who once followed Henry Hyde to Mass in their efforts to “prove” that his amendment was the product of Catholic hocus-pocus. They won’t down tools in this fight. Neither should the defenders of Harris v. McRae.

COMING UP: Moral courage and the many cultures of death

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CRACOW. Thanks to the pandemic, it’s been two years since I was last in Cracow, where for three decades I’ve done extensive research and taught great students while forming friendships with many remarkable people. It was wonderful to be back in one of the world’s greatest cities, and soon after I arrived in late June, I took a long walk to see what had changed. The first major difference I noticed was that the plaza in front of the central railway station (named for my late friend Jan Nowak-Jeziorański, a World War II courier for the Polish Home Army and the man from whom the future John Paul II got real news via Radio Free Europe’s Polish service) has a new, strikingly modern memorial, dedicated to the memory of Colonel Ryszard Kukliński.

That name is not well-known throughout a western world that has largely forgotten the meaning and lessons of the Cold War. But if Jan Nowak-Jeziorański was right when he spoke about the Polish colonel in the mid-1990s, Ryszard Kuklinski was a genuine hero of the long, twilight struggle against communist totalitarianism — the man who helped prevent a bloody Soviet invasion of Poland to crush the nascent Solidarity movement.

An accomplished officer in the communist-era Polish Army, Ryszard Kukliński began to doubt the truth of what he had been told about the West when, as a member of an international commission, he met American military men in Vietnam in the mid-1960s. His doubts about communism and its purposes intensified by orders of magnitude in 1968, when the brutal Warsaw Pact invasion of Czechoslovakia ground the Prague Spring to dust under the treads of Soviet tanks, and in 1970, when the Polish army shot Polish workers during labor strife. Privy to some of the Warsaw Pact’s most confidential strategic plans, he became convinced that, if the Cold War turned hot and the east bloc attacked the West, the Soviets would sacrifice Poland as retaliatory western tactical nuclear strikes hit the second wave of Warsaw Pact troops pushing west. So, in 1972, Kukliński, risking his life and his family’s safety, offered his services to the United States and for the next nine years was the West’s most important intelligence asset behind the iron curtain.

His greatest service to Poland and the cause of freedom came in the later months of 1980. Thanks to his efforts, the United States knew the entire order-of-battle the Soviet Union had organized to stamp out Solidarity, which had held its first formal congress in September 1980. With that information, and working in concert with the incoming Reagan administration, outgoing national security adviser Zbigniew Brzeziński, with the help of the AFL-CIO’s Lane Kirkland, was able to organize a comprehensive western response to a potential Soviet invasion of Poland: an international economic blockade that would have severely damaged the already-staggering Soviet economy. Faced with economic ruin, the Soviet leadership backed down and the Warsaw Pact divisions that had surrounded Poland withdrew.

Colonel Kukliński and his family were exfiltrated to the West; two of his sons later died under dubious circumstances that may have involved Russian retribution, and Kukliński lived out his life under an assumed name in the United States, dying in 2004. There was public controversy when he returned to his native Poland for a 1998 visit, with some charging that he had violated his officer’s oath by working for American intelligence for a decade. John Paul II, through various intermediaries, quietly passed the word that Kukliński was to be regarded in Poland as a national hero. Zbigniew Brzeziński, who held the exact same view, put it brilliantly, in a comment that appears on the Kukliński Memorial in Cracow: Colonel Kukliński was “the first Polish officer in NATO.” 

Communism was a distinctive form of the culture of death, for the effort to create “Homo Sovieticus” was a lethal assault on souls. Colonel Ryszard Kukliński took a courageous stand against that particular culture of death, knowing as he did that freedom is never cost-free: freedom lived nobly always requires sacrifice. His example should be pondered by Catholic citizens and Catholic public officials throughout the West today, who are called to resist, with similar moral courage and effect, that form of the culture of death that masquerades as the ideology of “choice.” May we and our elected officials be as principled and brave as the Polish officer who took what John Paul II described at the United Nations in 1995 as the “the risk of freedom.”