Ab*****n: The Eighth Banned Word

The Telcom Bill already had the controversial "Communications Decency Act" that made it a felony to mention the seven dirty words forbidden on radio or TV; that was well known, and much discussed in both the House and the Senate. But this abortion clause was new, and would make "abortion" the eighth word banned from cyberspace.

"It's hard to find any bill without an abortion provision," says Betty Wheeler, counsel to Schroeder and other democrats on the Judiciary Committee, "but this was stealth. No one on the conference committee knew it was there."

Buried in the final draft of the 280-page legislation, it read:

Section 1462 of title 18, as amended, states: "Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, or interactive computer service...

... (c) any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made; ..."

A hulking man with silver-white hair, Hyde used his oratory skills honed as a Chicago trial lawyer to first win passage of the "Hyde Amendment" as a 1976 House freshman, prohibiting the use of federal funds to pay for abortions unless the mother's life was at risk.

While the amendment was routinely attached to spending bills during the Reagan and Bush years, Hyde softened the restrictions when Clinton entered the White House, also permitting federal payment in cases of rape or incest. But Democrats, then in control of the White House and both sides of Congress, tried to kill the Hyde Amendment altogether.

In a 1993 confrontation on the floor, Hyde angrily snapped back at his critics. According to Hyde's profile in Congressional Quarterly ,

...First-term Democrat Cynthia A. McKinney of Georgia, who is black, said that the Hyde amendment "is nothing but a discriminatory policy against poor women who happen to be disproportionately black . . . and quite frankly, I have just about had it with my colleagues who vote against people of color, vote against the poor and vote against women."

Hyde responded: "We tell poor people, You can't have a job, you can't have a good education, you can't have a decent place to live. . . . I'll tell you what we'll do, we'll give you a free abortion because there are too many of you people, and we want to kind of refine, refine the breed. "

The women hissed. Illinois Democrat Cardiss Collins, who also is black, rushed to the microphone. "I am offended by that kind of debate," she shouted. Hyde responded, "I'm going to direct my friend to a few ministers who will tell her just what goes on in her community." Collins demanded that Hyde's words be expunged from the record. Natcher finally brought the debate to a close, and Hyde and Collins later made peace.

No, thinks Betty Wheeler, counsel to Schroeder and other democrats on the Judiciary Committee. "Hyde and Schroeder met that night in an unrelated meeting," she recalls. "He said, 'everyone knows that that provision is clearly unconstitutional,' I watched that exchange -- it was clear that he was sincere."

After several speakers rose to congratulate themselves on shaping such a swell new law, Schroeder brought up the abortion provisions hidden in the bill.

"For all of those who think they know all of this and this is fine and this is terrific, let me tell you about one of the things that we stumbled over as we looked at this page upon page of corrections and stuff. We came across section 1462, which I think very few people know is even in this bill. What it says is absolutely devasting to women. What we are going to do is put on a high-technology gag rule with criminal penalties."

Cliff Stearns (R - Florida) answered her charges by mocking her. "You and I were both in the conference committee together. You and I were both there; we voted on the Internet legislation together; and, in fact, I think we voted the same way."

After more self-congratulatory speeches, Louise Slaughter (D - New York) echoed Schroeder's concerns. Abortion is legal, she said, and "...if an unknowing person were to even bring up the topic on the Internet, the penalty would be 5 years imprisonment; 10 years for a second or subsequent charge, even for the mention of the word."

John Conyers (D - Michigan), ranking member of the Judiciary Committee, asked his colleagues for more time to consider the proposals. "I urge my colleagues to return this rule to the committee: Who knew that that noxious abortion portion was in the conference report? Nobody, until it was found out about last night. Who knows many of the other provisions, I have a whole list of them here, that could not possibly be known about, much less understood in terms of their implications?"

It began to look like the entire Telecom Bill, with billions of dollars at stake, might be sandbagged by this single abortion clause. As the debate continued, the lawmakers and their aides huddled, trying to find a way out of the predicament.

The solution was a colloquy, where one member asks the author to clarify his or her meaning. Such carefully scripted comments are important; often they are used years later by the courts, to determine the true intent of the legislators.

A few minutes later, Nita Lowey (D - New York) asked Hyde what he intended. After speaking at length about technical antitrust provisions, Hyde responded: "We are talking about the advertisement, sale or procurement of drugs or medical instruments or devices, used to bring about an abortion. This language in no way is intended to inhibit free speech about the topic of abortion"

And that was that. Although Pat Schroeder still objected to the way it was being rushed through, the bill passed, 414-16.

This amendment to subsection 1462(c) does not prohibit serious discussions about the moral questions surrounding abortion, the act of abortion itself, or the constitutionality of abortion... This statutory language is confined to those commercial activities already covered...

Why did Hyde change his emphasis? Alan Coffey, general counsel to the House Judiciary Committee told the Washington Post that he thought it was just "bad staff work."

Others aren't so certain that it was just a clerical screwup. The particular law that Hyde amended was part of the ancient Comstock Act, which has remained on the books for more than 125 years. When Hyde again cited 1462(c) in his written statement, he clearly demonstrated that the Comstock reference was no mistake, and that he has no complaint with the underlying law -- only the desire to update it to cyberspeech.

And although prohibiting information on abortion is unconstitutional as long as Roe vs. Wade is the law, Hyde has long sought to overturn that Supreme Court ruling. Should a future court outlaw abortion, Hyde's amendment to the Comstock Act could be used to prosecute anyone who reveals abortion information.

Clinton signed the Telecom Bill on February 8th, complete with its abortion restrictions. He did, however, "...object to the provisions in the Act concerning the tranmittal of abortion-related speech and information... [but] the Department of Justice has advised me of its long-standing policy that this and related abortion provisions in current law are unconstitutional and will not be enforced." The next day, Attorney General Reno sent Clinton and Gore a letter reaffirming that the government wouldn't prosecute these cases.

ACLU attorney Laura Abel sees Reno's letter as a pro-choice victory, but also notes that the letter is not legally binding, and the Justice Department remains free to prosecute at any time.

The ACLU joined 19 other groups in a lawsuit filed the same day that Clinton signed the bill. The hope was that federal judge Ronald Buckwalter would grant a temporary restraining order against enforcement of the abortion provisions as well as the portion of the law that regulated Internet free speech.

On Thursday (February 15), Buckwalter returned his opinion. Yes, the judge ruled, the vague "indecency" provisions were unconstitutional; but the restraining order on the abortion section was denied. Buckwalter cited Reno's letter, adding "at this early stage of litigation, no irreparable harm will befall." A three-judge panel will hear the entire case sometime in the future.

Schroeder has asked her colleagues to join her in a new bill to repeal the abortion provisions in the Comstock Act when Congress reconvenes later this month. "We're uncomfortable with them saying don't worry about it because it's unconstitutional," says counsel Betty Wheeler.

A Congressional battle over the Comstock Act should prove interesting. The old law remains one of the most hated legislation in American history, yet refuses to die as long as Comstock's heirs keep finding 21st century ways to use 19th century laws. "The ghost of Anthony Comstock keeps digging up from the earth," one First Amendment scholar told the Washington Post. "The hand is reaching from the grave to throttle the First Amendment."