Women's Focus; Carol Tucker and Jill Cooper; Part 1

Good morning, my name is Chris Martino, I'll be with you until 1 o'clock this afternoon with women's focus for Saturday, July 15th. And today we're going to be talking with special guests, Carol Tucker of Planned Parenthood and Jill Cooper of the American Civil Liberties Union. We're going to discuss the Supreme Court decisions that have come down in the past term, specifically those on civil rights and abortion. We're going to talk about what their effect will be on New Mexico women and coming up a little later Margaret Randall will be here to talk about recent developments in her case against the Immigration and Naturalization Service and also she'll be reading some of her work. And it's coming up in all in the next two hours right here on Women's Focus on KUNM 89.9 FM Albuquerque. Broadcast of this program is made possible in part by the students of the University of New Mexico. The members of KUNM and by 500 Second Street Southwest, that pink and gray building full of wonderful artists in fabulous downtown Albuquerque.

This song is addressed to my sisters, any man who is present may listen, any priest, any public official, any physician, but it gives him no license to touch us. We make the decision, me and Lydia, Rosie and Josie and me. We handle these matters ourselves, you'd better believe, or you'd better leave. Rosie Jane, are you pregnant again, Rosie Jane? You can hardly take care of the floor, you had the floor. In heaven's name were you thinking of Rosie Jane, was it love, I had an extra shot on

top of what I got in a world I was drunk, so was Bill. At least I think it was Bill, and I forgot to take my pill, I guess it was God's will. Rosie Jane, are you pregnant again, Rosie Jane, you can hardly take care of the floor, you had the floor. What in heaven's name were you thinking of Rosie Jane, was it love, when that baby is a child, it will suffer from neglect, be picked upon and picked, and run over and wreck,

and it's fed will be crowned with the thawthorn, but dial it's inside her, it must remain intact, and it cannot be murdered till it's gone. Rosie Jane, are you pregnant again, Rosie Jane? You can hardly take care of the floor, you had the floor, what in heaven's name were you thinking of Rosie Jane, was it love, music from Melvina Reynolds, that's Rosie Jane, thought it was appropriate for today's discussion, and with me this morning on Women's

Focus are Jill Cooper from the ACLU, good morning Jill, how are you, good and Carol Tucker from Planned Parenthood, how you doing Carol, good, we're going to be discussing the Supreme Court decisions that have come down in the last term, specifically the civil rights decisions that Carol is real well versed in all that stuff, so that's why she's here today, and the Webster case also, and also a couple of cases that are coming up regarding reproductive freedom that are going to be heard in the next Supreme Court session, Carol, I mean I'm sorry Jill could you give me just kind of a brief rundown on the civil rights decisions and basically what the Webster case said in the Supreme Court ruled on in the last session just so we have a starting point here. Jill, there were two areas that had negative effect on women's rights in this last term of the Supreme Court, the Webster decision of course is the abortion decision and that's

a little different from the civil rights decision, so starting with the civil rights decisions primarily those in the area of equal employment, there were significant setbacks. In the Price Waterhouse case, which was a case brought by some female employees of brokerage firm, the court held that employers have the legal burden of proving that the refusal to hire or promote was based on legitimate and not discriminatory reasons, so the plaintiffs had some chance there because the burden was on the employers. The problem with that case is that it was individual plaintiffs, the same court in a similar case ruled in the Ward's Cove Packing case that when you had a class of employees, the burden was actually on the employees, not the employer. What exactly did that mean? Well the granddaddy case in employment discrimination was a case brought in 1971, Griggs versus Duke

Power Company, which essentially said that if the plaintiffs could show primafacious statistical evidence that there was a pattern of discrimination in hiring and employment, the burden was on the employer to justify its hiring practices. In other words, if you have a town that has 50 percent women and say 50 percent blacks and chicanos and 80 percent of the force, say the fire force or something like that was white male, they would have made a primafacious statistical showing that there was discrimination in the workforce, there was an imbalance in the workforce, in other words, the plaintiff, the person who was suing would show that and that would show that. And then the burden would shift to the employer to justify its practices. The devastating case in this session undid that decision and change the burden to the employee.

So it is no longer sufficient to simply demonstrate statistical evidence of discrimination. You must also prove that the employer intended to discriminate against the minority or the class that's brought the complaint. And that makes it much more difficult to bring an action for discrimination. It's much more expensive. It takes a lot more resources to bring the case and then, of course, the court is not particularly receptive. So I think that the overruling of Duke versus Duke Power Company was probably the most significant decision simply because the whole pattern of employment discrimination cases has been set since 1971, allowing plaintiffs to bring a case when they found a pattern of discrimination and requiring the employer to prove otherwise. Now they not only have to prove the pattern of discrimination, but prove the intent on

the part of the employer to do it. And I think that's going to make a tremendous dent in the number of cases that can be brought. There is a question that I have regarding two cases that were decided, number of women I've spoken to this week, expressed kind of a perplexed understanding, or misunderstanding, I guess of how these things happen. There were two cases, one with a bunch of Alabama firefighters. And the court ruled that it was okay for them to challenge past settlements that were made on affirmative action. And the other case that was decided on the same day was with three women in, I believe, Illinois, who had sued, I don't know if it was the telephone company, one of the utilities for discrimination because the company had adopted a hiring and promotion practice that gave men, I guess in writing, as far as I understand, gave men preferential seniority practices, are seniority hiring.

And the court ruled against those women. What was it about those two cases? They seemed like the woman sued, so she didn't win the man sued, so he did. So it seems like blatantly that the court has made a discriminatory decision. Is there something else in there that we don't know about? I'm not sure which cases you're referring to, I know about the Birmingham case, and that's also potentially devastating case because what the court said is when there were court-ordered settlements or court supervised settlements of actions brought on affirmative action or discrimination. Those who were not parties to those actions are not bound by the settlement and can bring the case and start all over again. So all the settled cases that were resolved by settlement in affirmative action cases are now open again, they're not closed as we thought they had been because if you were not a party to the settlement proceedings and didn't sign off on it, you're not bound

by it and that's what happened in the Birmingham case. In the women's discrimination cases, I'm not sure which one you're referring to, but I think one of the things that's happened is there was an 1866 Reconstruction Era Civil Rights Act which applied to employment discrimination in the private sector and the court has narrowed that law considerably, primarily saying that it only applies in the case of the initial hiring and not after you're hired to discriminatory practices on the job with respect to promotion and whatever. I heard somebody say that that meant it was, you know, you couldn't discriminate when you hired somebody which you could do what you wanted once you got them in the workplace. I mean, do you think that's an accurate analysis? Of course. So from the way the court put it, I mean here's a case, a law that they've gone back to resurrected, I mean, the run-in was a major decision under that law a long time ago and

people have been using this law as a way to get to private employment discriminatory practices. And now the court is saying, I think it was a Kennedy decision that Justice Kennedy wrote the letter. I believe so. I believe so that only it only applies for the initial hiring. Once you're hired, if they discriminate against you as a woman, give you lesser opportunities, make you do things, male employees are not required to do, I believe in one case. The female employee was required to sweep the floor while the men weren't that kind of blatant discriminatory practice is not protected by this 1866 law. This is not to say they can't find some other way to attack that kind of practice, but they can no longer use this law that had been such a useful tool for combating discriminatory practices in the private sector beyond the initial hiring stage. Wow.

Well, the, okay, let's get to the touchy one right now, which is the Webster case. It's the Webster case in Missouri that was expected to overturn Roe v. Wade. And I've heard different analyses of this that it's, you know, the first step in overturning Roe v. Wade, which gives women the right to legal abortion, it says that we have a constitutional right to abortion. Is that not correct? That doesn't Roe v. Wade say that? That women have a constitutional right to abortion? Roe v. Wade was really based on an earlier created by the Supreme Court, so-called right to privacy. And that, that concept was first kind of elucidated in the Grisbal v. Connecticut case, which was the case in 1965, that struck down the restrictive laws in more than half the states in this country that prohibited married couples from using birth control.

And it was in that case whose anniversary we just celebrated last June. And a lot of people don't know this, obviously, that the court really created this concept of the right to privacy, that the right to privacy is not mentioned in the Constitution. But when this issue of birth control was taken up by the Supreme Court, that's where the court said, well, people do have this kind of fundamental right to privacy in this kind of matter, in this most personal and delicate sort of issue. Okay, now I've heard different stories now about what the Webster case decision has meant to women. I've heard that it's given the states the right to regulate abortion again, and therefore it has basically, in very subtle way, overturned Roe v. Wade because it allows states to say whatever they want to about abortion. Then I've heard other people say that it really has had no effect whatsoever, and I think a lot of people are confused about this.

What do you see as the meaning of the Webster case, what did the courts say the states are now allowed to do? What is the decision? I don't think that the Webster decisions substantively changed the abortion law. I believe even Black men in his dissent said that the case doesn't make a single, even incremental change in the law of abortion, but he was also quite correct when he said it's a chill wind blowing, and the main change I see is that instead of the Roe v. Wade trimester analysis where the right of the woman to choose abortion was balanced against the state's interest in protecting life was based on dealing with pregnancies in the three trimesters, so that it was clear that in the first trimester, the woman's right was all but paramount, clearly. In the second trimester, the balance was a little tighter, and the third trimester was

the balance Wade and favor of the state's interest in preserving the life of the fetus. You had that kind of continuum. What Renquist did in his decision was kind of abandoned the trimester sense, and he talks about the state's interest in preserving life as a liberty against the woman's liberty interest in abortion, but he suggests that the state's interest in preserving life begins a lot sooner, and therefore there's a concern that the restrictions on abortion which would not have been allowed under Roe v. Wade because they would have impermissibly interfered with the woman's right early on, which was the paramount right, under his analysis, restrictions on abortion may not be similarly restrained in earlier stages. Do you agree, Carol? Yeah, I basically agree with what you said. While Roe v. Wade wasn't overturned, it's certainly been chipped away at, and with the

courts agreeing to hear three more cases in their October term, our prediction is they will chip away some more at a woman's so-called right to choose abortion. And they did, as Joel said, do away with this kind of, a lot of us think, cleverly, thoughtfully crafted sense that Black men provided leadership in doing the Roe v. Wade case of the trimester system of looking at abortion, where a woman has a bigger right to abortion in the first 12 weeks of pregnancy, that right gets diminished in the second trimester in the sense that the states could regulate where abortions are performed. And then her right may be limited by the state in the third trimester if the state wished to prohibit abortion, and to many of it that seemed like a sensible, reasonable way of balancing the interest of the woman versus the interest of the state in protecting new life.

Well, let me ask you this. Now, isn't that trimester analysis a little iffy anyway? I mean, how can you tell, really, how can you tell when life begins? How can you really tell well enough to make that such a hard and fast kind of rule? I mean, the Missouri, didn't the Missouri, the Webster case, the Missouri law had a preamble to it or something stating that life begins a conception and the court let that stand. Right. As you know, and our listeners probably know, the lower courts had held all these four provisions that the Supreme Court has now upheld. The lower courts said they were all unconstitutional, by the way. Underroversist. Underroversist. Wade, but it was the Reagan administration after George Bush had been elected that asked the Supreme Court to please look at these things again, even though a lower court had said, you know, these provisions are unconstitutional and the Bush administration has urged the court to look at these aspects of the Missouri law with the intent of overtaring roversist Wade.

So what does this mean? Now in New Mexico, we have a fairly, I guess, a fairly liberal abortion law here that says that you can't regulate. I'm not sure even what the state statute says, but what's it going to mean? I mean, the group right to life says that this means that we can overturn abortion laws. The Missouri case upheld Missouri's right to say that they don't have to be in the abortion business if they don't want to. I mean, that was, I guess, a request term for it. So it upheld a law passed by a state saying the state does not have to use its facilities or its personnel or any of its resources to provide abortions. So in a state where abortions are provided in public hospitals and a state adopts a law like the Missouri law, which would now be all right since the Supreme Court has sanctioned it in the Missouri instance, a state where abortions are performed in public hospitals would be seriously affected.

But I think Carol has statistics on New Mexico to say. My next question. Yeah. How many abortions do we have? Number one, how many abortions are performed in New Mexico in, say, you know, name a length of time in a year's time, for instance, how many of those are in public hospitals? How many are in private clinics? Okay. About 5,100 abortions are done in a year in New Mexico, someplace in that range. The information that we have for, I believe, 1987 is that 14 abortions were done at UNMH. That's a really... 14 in the entire year? Right. That's a really small percentage of abortions. Is this a 10 a week? And that's... That's one month over there. That's not very many abortions in New Mexico reported to have been done in our public hospital. I think another issue I'll just kind of throw in here is what's a public hospital? How much public funding do you have to get to qualify as a public hospital? Are you a public hospital, even if you're a private hospital, that happens to be located on public land? That's a whole other can of worms that we'll watch for the interpretation of.

But if you want to talk about our main public hospital, UNMH, 14 abortions were reported. So to pick up on Jill's point, if our legislature decides to make a law that in New Mexico, no abortions will be done in public hospitals, it looks right now as if that only affects a small number of women. It does affect a number of women. So, you know, is... Plan... Were you going to say something, Jill? I'm sorry. But that then just leads into the real problem, which is the next... Yeah, there's a case coming up the next time... Next case. Which... Now, as I understand it, it's in Illinois. In the Illinois State Legislature, if I have it right, or the medical licensing entity wants to license clinics, will only license clinics for abortions that are equipped as hospitals. Is that correct? And I believe in that case, it's an expenditure of approximately 600 and some odd thousand dollars, which the clinic would have to make in order to meet the standard, and it would

put them out of business. And most small clinics, which perform abortions, would be unable to meet those standards and they would effectively be put out of business. And that will substantially affect huge numbers of women, the majority of women who do receive abortions in this country. So is this kind of a backdoor way of overturning Roe v. Wade without actually overturning it? Right. It's not another way of chipping away. But this... The public hospital chip affected, as Carol explained, in this state of rather small percentage of women, the Illinois case, if it effectively closed private clinics, would take care of the rest of them. What are the chances that New Mexico would change the law here and, say, adopt very restrictive codes requiring clinics to be equipped with emergency rooms or some kind of expensive thing?

I mean, I could see how that would eliminate a small clinic's practice if they had to spend that much money. And what is the budget for something like the APT, the... I wouldn't be able to take that stuff, I can't say that, but I do know that any small provider of care is going to be, you know, even if it's a mere $5,000 to $1,000 to equip that facility as a hospital, you know, it either put them out of business or would force them to make their fee for an abortion so prohibitively high that women wouldn't be able to get that kind of care, if they wanted. So this is going to affect poor women, most of whom probably are women of color, more than it will affect middle-class white women. Which is always the case in this problem. Sure, if you're rich enough, if you can only get an abortion easily in, say, California or New York or wherever, if you're rich, you fly there. I mean, you have the means to get there, but if you're a person, a minority person or

a young person, and you tend to not have a lot of money, then you're the person who doesn't have access to that kind of care. Exactly. California's already reacted, I believe, and they have a state pro-choice and amendment to their constitution. And there's little likelihood that it will be affected by the Webster decision from what I understand. A woman of means will always have the option of flying to California if necessary. It's the, as Carol says, the younger poor women who can't. But what about, go ahead. That is until Roe v. Wade is overturned and there's no longer a person who becomes illegal to get an abortion. So long as it remains legal, which it does under the Webster case, it is not illegal to seek an abortion or to perform an abortion. Now how does this affect, go ahead, Carol. No, what I want to say, I want to say to you and to our listeners that New Mexico has been a state historically that has left women to make their own decisions about abortion,

mostly, or families or women with their families and their religious counsel and their medical counsel. And we have reason to believe that New Mexico will still be so inclined, we're a state of incredible cultural and religious diversity, and our legislature reflects that and has historically respected that. And that's true on both sides of the party aisle. We have Republicans who've come out and said, I am a conservative Republican, I'm pro-choice. The government should not interfere in people's lives that way. We have Democrats who are saying New Mexico shouldn't have restrictive laws in this way. So maybe the other side of it, too, though, that you have some people who are liberal Democrats and the most extreme sense of things, but want to see what they call a right to life amendment.

I believe that a lot of legislators have been through this so many times that they have learned the valuable lesson that leaving this issue alone is the best way to get through a legislative session, that actually they can leave it to people's conscience, they can leave it to people's individual choice, and it is in everyone's, it is so divisive and it is so complicated that legislators, no matter how they feel about it, tend to want and not have to deal with it. That's true. That's been the end result of many battles in the state legislature that have worn the legislators down and they know better than to bring it up again. That's true, hopefully. But with my note of optimism, I also hope I can give a note of be vigilant and be active in your political party if you're concerned about this issue. Now is the time to start seeing what the candidates think about this issue and seeing that candidates get elected, who hopefully will tolerate the vast and incredibly divisive differences

that we have on this issue, hopefully, if you're opposed to abortion, don't have one. If we can keep that environment in New Mexico, if you're religious and moral values don't allow you to choose abortion, nobody's going to try to talk you into that. Let me ask you something, and what kind of connection is there between the civil rights laws that we were talking about, the employment discrimination, and that kind of thing, because I'd like to turn to that a little bit too. In relation to the abortion case that was heard, as far as what's in store for women, I've had women talk to me this week that have said I feel like a second-class citizen again after all these things, and I don't know how to respond to that. I think their reaction is justified, and your concern for them is justified. They're not strictly related in terms of the law because they reach different areas

of the law, so a ruling in one doesn't necessarily require a similar ruling in the other, but they do both these areas of law reflect the current thinking on the court. In both cases, the luxury that women have had, relative luxury of coasting along, believing that Roe vs. Wade would protect a reasonable a right of access to abortion, funding for poor and young women has always been a problem, but there hadn't been significant inroads into access to abortions until this case, and again, coasting along under decisions like Griggs vs. Duke Power Company, where the burden was always on the employer, and if women felt that they'd been discriminated in a particular industry out there, as a case, for example, readers died just some time ago, where women were paid significantly less than men. They proved statistically that that was the case, and the burden then was on the employer to justify that practice. So for the last two decades, women have been coasting along in a sense, believing that

their place in society was somewhat protected under the law, and now they've been forced to wake up, and I think we'll find a lot more activism on the part of the women's groups. I know that the pro-choice and gnarl groups have, that's a national abortion rights action league, both have called for increased activity, take to the streets, take to the mail, take to the go after candidates, a lot more proactive activity than they had before, and the same thing might happen through the women's groups that support civil rights legislation. I think women are feeling like second-class citizens, because there are over 7,000 state legislators that now have women's rights regarding abortion in their hands. And that's a pretty scary feeling, that somehow something that women regarding abortion,

especially early in pregnancy, thought was kind of a done deal. This is a way I can control my life. I can look to my family and my career, and all the other things that I want to look to. And now, suddenly, we have over 7,000 legislators who have a lot of power over what we are able to do, and in which state we may do it. That's scary. So, another thing that came up, just that some people have talked to me, I mean, there is a question about whether or not, and this is, again, a kind of a devil advocate question, whether or not we should expend our resources as women and as women activists on fighting for the right to abortion, when the odds seem to be against us at this stage of the proceeding. And instead, should we devote our resources to alternatives to abortion, which continue to give women the control over their own bodies, the morning after pills, I mean, to make sure that that kind of a resource is available, maybe our money should be spent investing in research and making that kind of an alternative available to more women and pushing for laws

that make morning after pills legal or required or dispensable or approved or whatever we have to do to provide a means for women to make that choice without having to go to a hospital or clinic, which is a facility that is easy for the state to control. But, you know, you bring up an issue that we're really interested in at Planned Parenthood and Concerned about. It's, for example, in Missouri, if life begins at the so-called momative conception, then is the morning after pill going to be available? Well, then where's the line between risk control and abortion and the line's getting grayer, and if Missouri is able to make a preamble for its law, which the court we know has said is not enforceable as law, at least as far as we've seen, but our IUD is going to be not available. What about the morning after pill?

What about the nor plant? What about our U48, sir? Well, here's an interesting point that Carol just brought up about that preamble. I don't understand, I mean, maybe this is a little off the topic, but I don't understand the concept of the Supreme Court allowing it to happen, but it's not enforceable by law. It makes no sense to me if it's in the law. The ACLU's position on that is that it is a value judgment having been made by the court, favoring childbirth over abortion, and that's how they're reading it. And that value judgment, of course, affects how they will construe any kind of law that limits the access to abortion, although they still exceed to the fact that the woman has a right to abortion, it is easier and easier and easier to overcome that right with a competing right favoring childbirth. You put a woman in Missouri be prosecuted for smoking during pregnancy? Well, that's an interesting question. I mean, we have, don't we have cases, and I think I vaguely recall something in California about somebody being prosecuted for murder for two people because he ran over a pregnant woman.

And I don't remember the outcome, but I sort of remember hearing something about that. Jill, you might. But I just recall noted that yesterday in Florida, a judge convicted a cocaine-addicted mother of delivering drugs to her two children through their umbilical cords at birth, and the theory was that a child who was born but whose umbilical cord has not been severed is a person within the Florida law under which she was tried. So that's in the... It's a different... It's sort of been a long time to place ourselves, but it is this idea of when the person becomes a victim. It's in between that trimester analysis and the in the Webster thing. But my suggestion was that the perhaps the effort should be directed toward the questions that Carol raised, protecting the right to use contraceptives, protecting the right to use pills, IUDs and whatever, rather than trying to protect the right to go to a clinic or a hospital and have a medical procedure, because that is much easier for the state to

control. It seems to me to be more difficult for the state to control a woman simply taking a pill. That's true. Well, you know, there's that... I can never remember the numbers. The French pill. The French pill. The French pill. And the government of France ordered the drug companies to make it available to women. Um, I mean, France is bicentanulous, it's quite interesting, but I mean, France has a lot of, uh, very, uh, to us sometimes outrageous kind of things like six weeks paid vacation a year and things that we seem to see as impossible, but, uh, you know, they ordered the drug companies to make them available to women because abortion is legal and, um, this, in, in this country, we have, uh, a big problem with it because it's, for some reason, it's too, it's, you know, too easy to use or something. Um, Carol, you could probably... No, you bring up something, it's, again, why not, if we could make this available in this country, and obviously there'd be a long process in getting it approved by the FDA?

Um, but why not make it available, and then for those people for whom it would be immoral to use it, simply don't use it, and then, you know, for the people for whom using this would then, uh, spare a surgical abortion, you know, why not have it available? You know, there was another point that was brought up this week, uh, in a conversation with another woman. She said, if the court could, and it kind of went back to, uh, Sandra Day O'Connor's, uh, questions during the oral arguments for Webster, she said, if the court can make it illegal to have an abortion, why couldn't the court in the year 2010 decide because of overpopulation that we had to, uh, had to have abortions if you had more than two children or something like that, and it just seemed to me to be, uh, no, come on, now that couldn't happen, you know, I mean, it's just too outrageous of a thought.

Well, I remember thinking it was a right question to be asked because, uh, I think she was onto an important issue, if the state has some right at any time in pregnancy to regulate the woman's fertility, you know, if they can do it on the side of saying you can't have an abortion, um, might they also be able to do it in the sense of you have to have an abortion? And I thought she was on that track of government stay away from these private, private choices that people want to make. I agree with Carol. I think that's, I think it was a very hopeful question, although it seemed almost absurd because it's so far fetched in this, in this context, but we move in a faster, faster, faster road and more is change in generations are compressed and what would be unthinkable becomes thinkable quicker. And it's possible that this could happen. So she has raised a point and maybe it's a sign that she will never find that there is no constitutional protection for women in this area.

Maybe she will never reach that point, even though her, her analysis is a different than than the both the sides of the, of the court that's ruled so far. I mean, her analysis is this undue burden analysis. She recognizes a woman's right to choose an abortion and she weighs each restriction on that right to determine whether it is an undue burden on a constitutionally protected right. I mean, is that something that's up to interpretation by each state or is there a real bright line that can be drawn? Well, it's pretty much her theory as I understand it, so she knows what she means by an undue burden and the rest of us wait and see how she is. Is she an innovator on the court because of things like this or is this kind of a wimping out, so to speak, without wanting to confront a very, very touchy issue? I think it was wimping out myself, I think that this is a woman who asked the question that you brought up, Chris, which was of course the interesting question and she recognizes

that there is something there that we shouldn't be touching because if we do, it could go both ways. On the other hand, she is a conservative and so it's her way of balancing and she can continue to reach the issue by weighing whatever restriction comes along against the test of whether it's an undue burden on a constitutionally protected right. And it may be wimping out to Scalia, who I don't think appreciate it very much, but it is. I understand that he said some, well, I guess the only way I could term it is blatantly sexist, had some blatantly sexist remarks to make to O'Connor over some of her opinions regarding this case. I think the quote that I heard, I think I read this in Ellen Goodman's column in the paper the other day, she said that when O'Connor handed down her opinion about it, I guess they had all these opinions flying back and forth between the nine of them for about a week before they brought down their body of work, but he said, really, this can't be taken seriously.

You say this and I just wonder how he would have looked at that from someone else, you know, as somebody who's been told many of us have, you know, we can't take you seriously and at the feeling that we're not taken seriously, I just really took great exception to that. Personally, I did being directed at O'Connor, but the thing that that is a consideration, the thing that's frightening is the court, of course, is beyond reach by the public in a sense, and so we can, we know that the Illinois case is coming and we know that the courts agreed to hear it and we know that it will have potentially the most devastating effect on women in New Mexico, if, in fact, the court rules, the clinics have to be equipped to meet certain standards and the cost of such equipment would put them out of business. And there's nothing in, for all of our work with state legislators, the standard is set by the court and you can't reach it and you can't interfere in their dealings with each

other and it's very frightening. Although it is the system and the system itself is the constitutional system, but it hasn't the court been, I mean, it kind of takes political swings back and forth over much longer terms, kind of like a global warming trend or something, if you want to look at it that way, like we had an ice age now or into the dry type of thing and it seems like it swings much more rapidly than any other kind of political climate that we have otherwise. We're, we're sort of reaping the fruit if that's what it is of the Reagan appointees, what three of the more progressive liberal justices are over 80. Any one of them could retire or die in the next year or so so that our current administration is going to have an opportunity to appoint one or more justices. So you know, this is kind of a long process, but we're seeing the consequences of appointees in the last four years and we're going to see those consequences for the next what,

30 years. Or maybe even more. What effect do you think it would have had on these decisions if an ERA had been passed say 10 years ago, if that had become, you know, equal rights of amendment to the Constitution, do you think that that would have had any influence on decisions regarding the civil rights decisions, in particular, employment rights, et cetera, and also on abortion? Well, the ERA would have made a sex discrimination, a fundamental, sex, a fundamental, it's a fun, it would raise it to the level of a fundamental right and it would have made it more difficult. To differ from sex discrimination. It would have been more difficult for laws to be enacted, which infringed upon that right, that the tests for upholding such a law would have been more stringent. And it probably would have had that effect.

Women's rights fall just short of a fundamental right of race discrimination, for example. There's the boron, they've actually invented a new standard. There's compelling state interest to overturn a fundamental right. And then there used to be a rational basis for everything else. I mean, all the law had to do was have a rational basis to get by on other grounds. But for women's rights, they sort of stuck in something in the middle in a, in the boron case that sort of a substantial right. In other words, what was the, how, what was the level of state interest that was necessary to show in order to overcome the right? If it's a fundamental right, then the level of state interest necessary to overcome a fundamental right, like the right to be free from race discrimination, was a compelling state interest. It's very hard to establish a compelling state interest. If the right that was being abridged was not a fundamental right, the law used to be simply

any rational basis with uphold the law, all you had to do was show the law was rationally based. For women's rights, if there was a law that abridged women's rights, the standard fell someplace in between. And it was my understanding that if the ERA had passed, it would have put discrimination against women in the category of discrimination against race, and you would not have been able to enact a law which abridged that right unless you could demonstrate a compelling state interest. And that would have been the value of the ERA. And then my sense from what you're saying is the compelling state interest might be able to take effect, for example, in case of pregnancy, as the fetus were older and more likely to be viable, but the woman would have maybe a greater right to control her fertility without the interference of the government if the ERA had been passed. Am I correct?

No one really knows, and there are some who believe that the ERA, in fact, was only symbolic that the rights guaranteed to women existed under the other laws, and that they would get to the same result. Well, the debate of that, though, is that the Constitution does not mention women at all. It talks about men, and as I recall, it mentions blacks as two-thirds of a person, or they counted as two—black men as two-thirds of—counting for two-thirds of a voter, a tax base, or something like that. I don't even count at all. Women are not mentioned at all, and so that's the other side of that that maybe the Constitution doesn't protect women. I mean, it's scary to me, and the women I've talked to this week have indicated the same fright over the civil rights decisions in particular. Well, and it's exceedingly difficult in that pregnancy is such a sort of remarkable situation, and there's nothing that men have that's comparable so that we could sort of balance it

off with something. Well, what about male birth control? I mean, just to just brought that back to my mind, it's a little off the topic, but you know, what about—in the absence of having something like abortion, I mean, people, you know, there's the argument that women use birth control—I mean, use abortion as birth control—to cut down on that kind of thing, using better birth control would be a way to avoid abortion.