The MacNeil/Lehrer NewsHour

MR. MacNeil: Good evening. Leading the news this Wednesday, abortion opponents urged the Supreme Court to overturn Roe V. Wade, the U.S. economy showed faster growth in the first quarter of 1989, actress Lucille Ball died suddenly while recovering from heart surgery. We'll have details in our News Summary in a moment. Judy Woodruff is in Washington tonight.

MS. WOODRUFF: After the News Summary, the newest legal challenge to abortion is our lead. Nina Totenberg fills us in on today's arguments before the Supreme Court, then former Court Nominee Robert Bork and Frank Susman, one of the attorney's arguing today's case debate the law. Then a News Maker interview with the anti- nuclear Prime Minister of New Zealand, David Lange. And finally, we remember I Love Lucy.NEWS SUMMARY

MR. MacNeil: Opponents of abortion with the Bush administration as an ally today urged the Supreme Court to reverse the decision that made abortion legal. For the administration, Charles Fried told the justices that in asking for reversal of the 1973 Roe V. Wade decision, "We are not asking the court to unravel the fabric of individual privacy rights. We are asking the court to pull this one thread.". But St. Louis lawyer Frank Susman, whose challenge to a restrictive Missouri law brought the issue to the high court, responded, "When I pull a thread, my sleeve falls off.". Spectators began lining up yesterday for the few court seats available, and today there were demonstrators, anti-abortion and pro choice. Outside the court, about 100 shouted, argued and chanted their positions. Police arrested 27 pro abortion demonstrators who attempted to cross barricades. After the hearing, lawyers from the two sides both thought the arguments had gone well.

FRANK SUSMAN, Lawyer: You cannot turn back the clock 16 years. And this court is not about to do that to the detriment of women's health. If women in this country are ever going to have equality and cease being second class citizens, they must have absolute control over their reproductive destinies.

WILLIAM WEBSTER, Attorney General, Missouri: We're very pleased with today's argument. We obviously believe that the statute of the State of Missouri can be upheld in its entirety without ever reaching Roe versus Wade. We thought the questioning was very positive today. The court was obviously very interested, very well prepared, and we're very satisfied with the way the case went.

MR. MacNeil: We'll be hearing the arguments in detail after the News Summary. Judy.

MS. WOODRUFF: The government reported today that the nation's economy generated over $5 trillion for the first time last quarter thanks to a strong 5 1/2 percent annual growth rate. The Commerce Department said over half the increase was due to a statistical catch-up from last year's drought. But even discounting for that, they said the growth was solid and contained no threat of a coming recession. Private analysts, however, cautioned that the report showed some signs of accelerating inflation.

MR. MacNeil: President Bush said today he wants to give former President Reagan various missions and assignments in the foreign policy field. The two Presidents met in Mr. Reagan's office in Los Angeles which President Bush is visiting on a four day trip to publicize the achievement of his first four months in office. Both men answered questions.

REPORTER: -- anything special? Could you tell us about that?

PRESIDENT BUSH: No specific missions; a strong support and I want to keep him fully informed and the respect for him around the world knows no bounds, and I've encountered that when I've met with 36, I believe it is, heads of states so far. And so I hope I can talk him into various missions or assignments as time goes by. But I'm respectful of his own private life and what he's doing, but there will be plenty of opportunity to stay in touch, and that I'm determined to do.

MR. MacNeil: Later, in Austin, Texas, President Bush said the U.S. must speed up oil drilling to reduce dependence on foreign oil. Speaking to a joint session of the Texas legislature, Mr. Bush said, "We need a national energy policy that relies not only on oil, but on many other sources.

MS. WOODRUFF: In Chicago today, the father of a 16-month old boy was charged with murder after he took the baby off a hospital life support system. Twenty-three year old Rudy Linauers held a gun to keep hospital staff members away while he cradled his son, Samuel, in his arms until the baby died a half hour after his father unplugged his ventilator. Samuel had been in a coma since last August when he choked on a small object, was deprived of oxygen and had been left partially brain dead. Linauer's wife, who was with her husband, said what had happened was the best thing, that the baby was now out of his misery.

MR. MacNeil: The U.S. said today it hoped Mikhail Gorbachev's purge of old line party leaders yesterday would help strengthen the reform process in the Soviet Union. But Gorbachev, himself, admitted that his reforms are not working. In a speech released today, Gorbachev said, "The food problem is far from solved, the housing problem is acute, there is a dearth of consumer goods in the shops, the list of shortages is growing, the state's financial position is grave.". He blamed the problems on runaway government spending and on what he called Soviet workers who forgot how to work. In China, students said they would defy yesterday's government warning against further pro democracy demonstrations. We have a report from Beijing by Jeremy Thompson of Independent Television News.

JEREMY THOMPSON: Undeterred by government threats, the students took their campaign onto the streets again. At roadside meetings across Beijing, they called on the people to back them. Workers gave donations to show sympathy with the pro democracy movement. "We support the students," these workers told us. They said they were fed up with official corruption, they felt exploited and oppressed. Yet, the students have been officially accused of conspiring to poison the minds of the people and throw China into chaos. Today's People's Daily, the mouthpiece of the Communist Party, sternly warned that student protests were illegal. China's paramount leader, Deng Xiaoping, is reported to have urged the authorities not to give into student demands and severely punish anyone who violates the law. More troops have been ordered into Beijing in readiness for a crackdown, but fresh papers wallpapered the city with the students' defined report. The government's toughest threat so far seems to have produced more fervor than fear. The students are angry at the allegations, determined to fight on.

STUDENT: They want to fight for a bright future in China.

STUDENT: I'm proud that I'm one of the members who fight for China's democracy and legal system.

MR. THOMPSON: Tomorrow the students will put China's government to the test. They plan another massive march. Confrontation seems inevitable.

MR. MacNeil: In Israel, Prime Minister Yitzhak Shamir's plans for Palestinian elections in the occupied territories was rejected by a group of local Palestinian leaders. They said the election idea was calculated to end the uprising and win time for Israel. Meanwhile, there was more violence in the occupied territories today. Israeli soldiers shot and killed three Palestinians and wounded more than sixty during rock throwing demonstrations. And for the sixth time this week, a Palestinian suspected of collaborating with Israel was killed by fellow Palestinians.

MS. WOODRUFF: The comedian once described as "the greatest woman clown in the world" died today. Lucille Ball suffered what doctors said was a ruptured abdominal artery one week after she had emergency heart surgery at a Los Angeles hospital. The 77 year old red haired actress reigned for more than 20 years as the queen of television comedy and is remembered most for her role as the star of the 1950 series I Love Lucy. We'll take a look back at Lucy's work at the end of the Newshour, but first, today's abortion arguments before the Supreme Court and the Prime Minister of New Zealand. FOCUS - BATTLE BORN AGAIN

MS. WOODRUFF: The Webster case is where we go first tonight. It is the next round in the protracted legal battle over abortion. Today's battleground was the Supreme Court of the United States. As lawyers inside argued the fine points of what is widely regarded as a major review of the law, protesters outside continued their longstanding and vocal public debate. Webster versus Reproductive Health Services involves a 1986 Missouri law that declares that the life of each human being begins at conception. This law bans abortions in publicly funded facilities and bars the use of public funds for most abortion counseling. In addition, the Missouri law requires doctors to test the fetus's ability to live outside the womb in the second trimester. The Missouri law has been struck down by two lower courts as unconstitutional. Outside the Supreme Court today, the two sides had different views about just what issue was before the nine justices.

FAYE WATTLETON, Planned Parenthood of America: [Network Difficulty] -- pregnancy --

ATTORNEY: Contraception is not before the court. What is before the court is the right of Missouri to determine how public bodies in our state are going to expend our moneys.

MS. WOODRUFF: The key precedent underlying today's case is the Supreme Court's 1973 Roe versus Wade decision. In it, the court held that abortion is a fundamental right, part of a woman's right to privacy protected by the 14th amendment's guarantee of liberty. The court also ruled that a state doesn't have a compelling interest in regulating abortion until the fetus is viable, able to survive outside the womb. In general, that meant that states could restrict abortions only in the third trimester, when the fetus is viable. But even then, abortions would still be permitted to protect the mother's health. The court decided Roe versus Wade by a lopsided seven to two vote. But since 1973, four of the justices who voted with the majority have retired, and they have been replaced by more conservative justices. In 1977, the court said states could forbid the use of public funds to pay for certain abortions. Since then, the court has upheld Roe versus Wade, but by ever slimmer margins. Today's challenge to Roe versus Wade brought some of those involved in that landmark decision. To protect her identity at the time, Norma McCorvey was known as "Jane Roe".

NORMA McCORVEY, "Jane Roe": I'm shocked that the U.S. Supreme Court might reconsider Roe V. Wade and change its mind about it after 16 years. I feel if Roe V. Wade is overturned that women will soon get abortions by any means, such as illegal procedures in back alleys.

MS. WOODRUFF: Sarah Weddington was the lawyer who argued the case on McCorvey's behalf.

SARAH WEDDINGTON, "Jane Roe's" Lawyer: I was more nervous today than I was when I argued, because in so many ways we can see today the importance of it. The people who asked the most questions were the judges. Those new judges really feel how much it weighs on them and they are the ones who were most active.

MR. MacNeil: Joining us now is Nina Totenberg of National Public Radio, who covered today's oral arguments at the Supreme Court. Nina, did any of the commotion outside affect the demeanor or the proceedings inside?

NINA TOTENBERG, National Public Radio: It never does seem to and today was no exception. This is a chamber that has no windows, and I have literally been in that court when there is a major storm outside. And when you come outside, it's a surprise.

MR. MacNeil: So what was the atmosphere like today?

MS. TOTENBERG: It was excited but low key. Every seat was taken. There were Congressmen and Senators. I saw that the daughters of retired Justice Powell were there who are believed to be active pro choice women. But other than that, other than the crowd, you wouldn't have known it was a special day.

MR. MacNeil: We've just seen how the decision went before and the changes in the court in the piece Judy just did. What is known of anything that any of the new justices have said about Roe V. Wade, or anything that indicates any attitudes they have to it coming in?

MS. TOTENBERG: Well, the three new judges are all viewed in varying degrees as hostile to Roe versus Wade. Justice Scalia wrote against it when he was a law professor and private citizen. Justice Kennedy is viewed by pro choice advocates as hostile to it, although there's nothing formally on the record that we know of. I think that's based more on court scuttlebutt. Justice Sandra Day O'Connor, the court's only woman member, has twice dissented from decisions upholding Roe, but she is viewed as the best choice for a 5 to 4 decision that would continue to uphold Roe versus Wade.

MR. MacNeil: In other words, she's the one that the scuttlebutt thinks is most likely to go with the support for Roe V. Wade?

MS. TOTENBERG: That's right, that's correct.

MR. MacNeil: I see. Tell us some of the questions that the justices asked today that you thought significant first on the side of the attorneys wanting the decision overturned.

MS. TOTENBERG: Well, we heard first from the Attorney General of Missouri, and his task was really to try to persuade the court that these restrictions on abortion were not unreasonable and were not so restrictive as to interfere with Roe versus Wade should the court decide not to overturn Roe versus Wade. But I think the crux of today's argument came when the former Solicitor General of the United States, Charles Fried, stepped to the lectern on behalf of the Bush administration and he said, "Today the United States asks this court to overrule its decision in Roe versus Wade. We are not asking the court to unravel the fabric of privacy rights established in decisions before Roe. Rather," he said, "we are asking the court to pull this one thread.". Justices Kennedy and O'Connor, two of the court's most pivotal votes, then began asking questions about the court's privacy decision in 1965, a decision that struck down state bans on contraceptives in the home." Justice Kennedy: "Your position, Mr. Fried, is that the contraceptive ruling, that that decision should be retained?" Answer: "Exactly, Your Honor.". Justice Kennedy: "Does the case stand for the proposition that there is a right to determine whether to procreate?". Answer: "It surely does not stand for that proposition.". Justice Kennedy: "What right then is involved?". Answer: "The right not to have the state intrude into the details of marital intimacy.". Justice O'Connor: "Do you say there is no fundamental right to decide whether to have a child or not, a right to procreate? Do you deny that the Constitution protects that right?". Answer: "I would hesitate to formulate the right in such abstract terms.". Justice O'Connor: "Do you think that the state has the right to if in a future century we had a serious overpopulation problem, has the right to require women to have abortions after a certain number of children?". Answer: "I certainly do not. That would be quite a different matter, because that would involve not preventing an operation but violently taking hands on, laying hands on a woman, and submitting her to an operation.". Fried went on to say that if the court were to overturn Roe, it would still have to police what Fried called "the far out boundaries of abortion regulation, namely to strike down any regulation that sacrificed the life of the mother to the life of the fetus.". "If the court were to overturn Roe," he said, "it would not have to allow extreme and extravagant and blood thirsty regulations.". Justice Stevens then interrupted at that point to ask, "Is there a difference between regulations that threaten the life of the mother and regulations that would merely cause her severe and prolonged disease?". Answer: "I cannot promise the court," answered Fried, "that these cases would not be a problem to the courts in the future.". But he said he doubted very much there would be many such cases. And that really was the heart of the argument right now.

MR. MacNeil: What do the judges ask on the other side, the Susman side, that want the Roe V. Wade left as it is?

MS. TOTENBERG: Well, Mr. Susman began by saying that in his experience when you pulled a thread from a suit, the whole sleeve came off, and he went on to say that you cannot differentiate between the right of contraception and the right to an abortion, that because of medical advances, IUD's, low dose birth control pills are now abortive procedures literally and would be illegal under the Missouri law, which defines life as beginning at conception. "And so," he said, "there are not two different rights. There is a single right to procreate.". He then went on also to say that you could not define when life begins, that that's an article of faith, not an article of science, which prompted Justice Scalia to interrupt and say, "Well, therefore, there must be a fundamental right on the part of the woman to destroy this thing that we don't what it is? Since we don't know the answer," said Scalia, "don't people through the vote have the right to make up their minds, through the legislature?". And Susman said he did not think so because this decision is so personal, so individual that it should be left to the individual and not to the state. And said that the debate that was going on outside the court is reflected in every woman's mind when she faces should she have an abortion when she's pregnant against her will, and it's a debate she has to resolve on her own without the state interfering.

MR. MacNeil: We heard going into this the Attorney General of Missouri say the questioning was very positive from his point of view. Did he have any justification for saying that?

MS. TOTENBERG: I hate to betray my age, but I've been covering the Supreme Court for 20 years and I have learned that you can think you read it very well and have it come out exactly the opposite way. I would not say that you could draw any conclusion based on today's questioning, except that the justices were not inclined to betray what they're thinking, they were inclined to betray what their concerns were, and clearly, Justice O'Connor was concerned about the whole notion of right to privacy going down the drain and the right to choose when to have a child and when not to have a child in terms of contraception. She's obviously worried about that. Whether it will persuade her to uphold Roe is something that I wouldn't dare to venture an answer on.

MR. MacNeil: But that could be a straw of hope that the pro abortionists could cling to as they wait for the decision?

MS. TOTENBERG: It's a straw, but in my view, all it is is a straw.

MR. MacNeil: Well, Nina Totenberg, thank you very much.

MS. TOTENBERG: Thank you, Robin.

MR. MacNeil: Judy.

MS. WOODRUFF: We continue now with a debate over today's argument. Joining us are Frank Susman, whom Nina described just now as the attorney representing U.S. Health Services, and Robert Bork, former U.S. Solicitor General and Appeals Court Judge, now a legal scholar at the American Enterprise Institute in Washington. His nomination to the Supreme Court was defeated by the Senate in 1987, in part because of his views about privacy and the Constitution. What is at stake here, gentlemen? Mr. Susman, I'll begin with you.

FRANK SUSMAN, Lawyer: I think several things are at stake. No. 1, that if you remove the right from women to control their own reproduction, you are going to return women to being second class citizens. they are not going to have equal status. Secondly is at stake is women's health. It is just that simple. All of the abortion laws in history have shown that it doesn't stop abortions. Women will have the same rate of abortions with or without laws.

MS. WOODRUFF: Robert Bork, is that's what at stake here?

ROBERT BORK, Former Judge: Well, I think more fundamentally what's at stake is the question of who decides matters in our country, in our society. There is nothing in the Constitution that remotely resembles an abortion right, in its history, in its text, anywhere. And this is an occasion in which the court has taken over a moral choice from the people of the United States.

MR. SUSMAN: I would certainly agree it's a question of who decides. I think who has to decide is the woman and her physician and not some state legislature.

MS. WOODRUFF: All right. Let's go down some of the points that are in the language, in the Missouri law that is being discussed, that has been challenged, and is now before the court. First of all, the provision that bans abortion in publicly funded institutions even when a woman is paying for her own abortion and language that prevents the use of government money in counseling on abortion. Mr. Susman, what's wrong with that language?

MR. SUSMAN: Well, those are two separate issues really. The question on the public hospital is the fact that you have a facility there, you have a physician who wants to perform the procedure there, because this is where he's always treated this patient, and the woman is prepared to pay the entire cost so that the state is not subsidizing it. Our position is that the state cannot shut the doors to the hospital and shut the physician off from this woman.

MS. WOODRUFF: All right. Let's go to Judge Bork on that.

JUDGE BORK: Well, it seems to me extremely odd that a state can decide that it thinks abortion is immoral, but, nevertheless, be forced to help the operation take place. I don't think there's anything that the court could find in the Constitution that would support that view.

MR. SUSMAN: I find that no stranger than the woman has a fundamental recognized constitutional right to a procedure. It's legal, the physician is prepared to do it, wants to do it, this is his patient, and this is the best place to do it. And let us remember that women who have abortions in a hospital are the high risk medical women and for the state to stand in the doorway and say no, I find even stranger.

MS. WOODRUFF: Judge Bork.

JUDGE BORK: Well, as a matter of fact, these women can have abortions in all kinds of hospitals. There's nothing unique about that one. But what's happening here you'll notice is that in terms of constitutional law, we're really arguing the kind of things that legislators argue, health, convenience, and so forth, which I think merely underscores the fact that the Supreme Court has become a legislature in this matter.

MR. SUSMAN: Well, anyone who has read the record in this case of trial knows that what Mr. Bork has said is not true. 97 percent of all the hospital abortions in Missouri are done in one hospital and that is a public hospital.

MS. WOODRUFF: Mr. Bork, do you want one last response to that?

JUDGE BORK: Well, I think there must be other hospitals in Missouri. When I was out there, it looked like it.

MS. WOODRUFF: All right. What about the other separate provision that has to do with using government money for abortion counseling?

MR. SUSMAN: Well, here the question is is whether the state can tell a publicly paid health professional that you may not discuss abortion. There was ample evidence at trial that when women come to publicly paid physicians, they find on occasion that abortion is in her best interest, because she's diabetic, she has cardiovascular problems, she has renal failure. And now they are forbidden to tell her that. They're foreclosed. A muzzle is placed on the free speech to this patient and they cannot tell her what in their opinion is best for her health.

MS. WOODRUFF: Judge Bork.

JUDGE BORK: Well, I would suppose if a woman's health is in danger that they probably could tell her, but --

MR. SUSMAN: Well, this statute limits it only to save her life. Health considerations are not permitted by this statute.

JUDGE BORK: Well, I suppose that the doctor in that case, if he's a public doctor paid by the state who doesn't want to be involved in this, could advise her to talk to a private doctor for the advice she needs.

MR. SUSMAN: All these suppositions do very little to benefit women's health.

MS. WOODRUFF: All right. Let's go on to another controversial provision in the Missouri law, and that is the language that requires doctors to perform viability tests on the fetus if the woman is believed to be more than 20 weeks pregnant. Mr. Susman.

MR. SUSMAN: Well, the state concedes it's a matter of construing the language. Both lower courts found against the state's proper construction, and the state concedes that there are no tests to determine the requisite findings at this stage.

MS. WOODRUFF: You mean whether the fetus is viable or not.

MR. SUSMAN: But they say they don't have tests. Correct. For instance, the statute requires to determine lung maturity. There is no such tests that works until 30 weeks.

MS. WOODRUFF: So you're seeing that even though it's in the law it can't be done.

MR. SUSMAN: It's meaningless and the state concedes that, but the state interprets the statute to mean something other than what the two lower courts found.

MS. WOODRUFF: Judge Bork.

MR. SUSMAN: Well, if the state concedes that the test doesn't work, I don't know that there's much to argue about.

MS. WOODRUFF: Another provision, perhaps the most controversial of all in this law, and that is that the provision that declares, a declaration that life begins at conception. Mr. Susman.

MR. SUSMAN: Well, I find it somewhat amazing because now you have state one, Missouri, holding life begins at conception, and I suspect next week Illinois could hold that it begins at viability, and then Wyoming could hold that it begins at birth, and New York could hold that it begins at 26 weeks. I mean, it's just a preposterous situation. You can't make legislative finds of things that are not verifiable as scientific fact but are really matters of religious faith.

MS. WOODRUFF: Judge Bork, does that language belong in the Missouri law?

JUDGE BORK: Of course, it does. The fact is state legislatures are voting all the time on moral issues. When life begins in the sense that it ought to be protected is a moral issue, and most moral issues do not have any scientific backing when the legislature decides it. There's nothing wrong with Missouri deciding this.

MS. WOODRUFF: Mr. Susman.

MR. SUSMAN: Well, one of the major problems is that it by definition now makes the in vitro fertilization process murder, because when you take fertilized eggs that you don't implant into the uterus and you discard them, which is frequently part of the process, you are now committing murder under the definitions of this statute.

MS. WOODRUFF: Judge Bork.

JUDGE BORK: Well, I think that's an excellent reason to change that statute if that is true.

MS. WOODRUFF: Does the court have to rule one way or another, Judge Bork, on this language, that life begins at conception in order to decide this case?

JUDGE BORK: I don't think so. I think that the Missouri statute states that that is true except where decisions of the court are to the contrary. So I think that that could stand without, even if they upheld Roe against Wade, that provision could stand.

MR. SUSMAN: But clearly having what they consider to be a savings clause, whether that clause is there or not, it's always subject under the supremacy clause to the Constitution of the United States and decisions of the United States Supreme Court. That additional language adds nothing.

MS. WOODRUFF: So what are you saying?

MR. SUSMAN: Well, it's nonsense to say that this cures all the defects because they add another clause that says but whatever we say here is subject to decisions of the United States Supreme Court and the Constitution.

MS. WOODRUFF: Well, are you saying the court has to come down one way or another on that language?

MR. SUSMAN: No, I'm not. There's a variety of options that the court can do in every one of the challenged sections. They could find a lack of standing here. They could find that it's empty and meaningless, but there's no reason to strike it. There's an endless variety of things the court could do.

JUDGE BORK: You see that, if I may say something, that that statement that life begins at conception would have an effect upon all kinds of other laws having nothing to do with abortion and I suppose was intended to have that kind of effect, and given that, there's no particular reason why that shouldn't stand.

MR. SUSMAN: Of course, what's so strange is that if, in fact, the purpose of that was to have nothing to do with abortion, as the state now contends, they certainly had the drafting acumen to write that and very simply could have stated this is not intended to have anything to do with abortion. They didn't say that.

JUDGE BORK: I think it's intended to have to do with abortion, should Roe against Wade be overturned.

MR. SUSMAN: That is not the position taken by the Missouri attorney general.

MS. WOODRUFF: Judge Bork, you have argued, you've said, and you've said it again this evening, that it's better to settle cases like this or questions like this in a legislative body rather than in the courts. Why is it better to take a question, a controversial question like abortion -- we saw again today the public opinion polls show great diversity on this -- why is it better to put it in the legislature?

JUDGE BORK: You're asking me why is self-government better than rule by an authoritarian body. The Supreme Court or any other court ought to make a ruling only if it has law to apply. There is, in fact, nothing in the Constitution about this subject, which means it's a subject for the people to govern, themselves, and make their own moral choices.

MS. WOODRUFF: Mr. Susman.

MR. SUSMAN: We have thousands of opinions in which the Supreme Court interprets the Constitution in which the wording about those decisions doesn't appear. Wire tap does not appear in the Constitution. This populist argument we should return it to the people, there are many issues, fundamental liberty issues, we'd never give to the legislatures. They're preserved and held sacrosanct by the Constitution. We do not submit to the people a vote as to whether or not this should be a Christian nation. We do not submit the issue of integration to the people for a vote. There are basic inalienable rights that protected from the whims of majority rule.

MS. WOODRUFF: Judge Bork.

JUDGE BORK: Let us examine the wire tap issue. Wire tapping has been held to be unconstitutional without a warrant simply because there is an amendment to the Constitution protecting you from unreasonable searches and seizures, and the same principle is involved in invading your privacy if the constable comes into your living room or if he puts a bug in your living room. And there there is a constitutional provision to apply. Here there is none.

MR. SUSMAN: Well, Judge Bork's reasoning, of course, would cover contraception as well and there'd be no constitutional right to the use of contraception either, as was previously stated.

MS. WOODRUFF: We don't want to get off, Judge Bork, with all due respect, on other questions, but what do you all think -- let me ask you this -- what do you both think the possibilities are of what the court could do? There are a number of directions the court could go. What do you realistically think, Mr. Susman?

MR. SUSMAN: I think, and I've answered this same question a dozen times today alone, that it's inappropriate for me to speculate as to what I believe the court is going to do, having been counsel in this case.

MS. WOODRUFF: What are the possibilities?

MR. SUSMAN: The possibilities are endless, from the extreme of reversing Roe versus Wade and sending the issue back entirely to the states, to affirming the Eight Circuit without ever addressing Roe.

MS. WOODRUFF: In other words, upholding the law without --

MR. SUSMAN: The court could uphold the sections or find them unconstitutional.

MS. WOODRUFF: The Missouri language.

MR. SUSMAN: In either case, rule for either party across the board without ever addressing Roe, or they could reach out and touch Roe. It's solely up to the court. They need not do so to hold with either party in this case.

MS. WOODRUFF: Judge Bork, do you agree with that, that there's such a spectrum of possibility?

JUDGE BORK: Oh, yes, entirely. I suppose if I were betting, I would bet that the abortion right would be cut back somewhat, that is, some of the sections of the statute might be allowed to stand. I think the question of whether Roe against Wade will be overturned completely, the odds are perhaps slightly against it, although lately I've begun to think it's even money.

MS. WOODRUFF: Well, why do you think that?

JUDGE BORK: I'm counting votes like everybody else.

MS. WOODRUFF: Why have you changed your mind? What's caused you to think that the odds are shifting?

JUDGE BORK: Rumblings.

MS. WOODRUFF: Do you want to be any more specific than that?

JUDGE BORK: I certainly don't. I didn't tell you the odds are shifting. I said I think they're a little bit --

MS. WOODRUFF: All right.

MR. SUSMAN: The Judge is more willing to play Jimmy the Greek than I.

MS. WOODRUFF: Mr. Susman, what are the implications if the court does uphold some or all the provisions of the law, even if it doesn't go so far as to overturn Roe, what are the implications nationwide?

MR. SUSMAN: The implications really have nothing to do with the statutes in question. If all of the sections in question, and again this is merely a skeleton of what it was originally challenged, the state failed to appeal all the way up the line the various things they lost at the two lower levels, but if the court were to uphold the four or five sections before them, they would not stop a single abortion procedure in the State of Missouri. The question is the method by which they seek to uphold them, do they lower the standard of review for future legislation.

MS. WOODRUFF: What do you mean? I mean, put that in layman's terms.

MR. SUSMAN: Let's assume they uphold the challenged sections on the basis that this test only has to be rational and the state doesn't have to come up with a compelling state interest. Then that would enable future and future restrictions and encourage it to be upheld in a greater fashion than it has been in the past.

MS. WOODRUFF: In other words, opening the door to making it more difficult to get --

MR. SUSMAN: Correct. These particular provisions will not impact the delivery of services, themselves.

MS. WOODRUFF: Judge Bork, what do you think the implications are if the court does uphold some or all of the provisions of the Missouri law, even if it doesn't go on an overturned Roe V. Wade?

JUDGE BORK: You mean about the number of abortions?

MS. WOODRUFF: Yes.

JUDGE BORK: I doubt that the statement that life begins at conception, if upheld, would have any effect on the abortions. I suppose some of the regulations would make abortion slightly more difficult and to that extent, there might be some fewer abortions. But unless they overturn Roe against Wade, there's not going to be a great impact.

MS. WOODRUFF: Gentlemen, we appreciate your both being with us. Judge Robert Bork, we thank you. Frank Susman, we thank you.

MR. MacNeil: Still to come on the Newshour, New Zealand's Prime Minister David Lange and remembering Lucille Ball. NEWS MAKER

MR. MacNeil: Next tonight the story of a falling out between two allies, the United States and New Zealand, and a News Maker interview with that country's Prime Minister, David Lange, who has broken a nuclear alliance with the United States. Lange was in the U.S. this week, but pointedly was not invited to Washington. Yesterday the State Department publicly rebuked the Prime Minister for telling a Yale University audience that the alliance was effectively dead. In 1985, Prime Minister Lange announced that he wanted to make his country nuclear free. To that end, he said he would ban ships carrying nuclear weapons from entering New Zealand ports. His position effectively meant all U.S. Navy warships were barred because the United States refused to reverse a 40 year old policy and publicly indicate which ones were carrying nuclear weapons. The Reagan administration reacted angrily, but Lange held firm and made his policy declaration law. His position and the U.S. response, in effect, ended the Anzus Pact, a defense arrangement in place between 1951, between Australia, New Zealand, and the United States. Like other American alliances, it relied on the nuclear deterrent. But Lange was determined to create a nuclear free zone in the South Pacific. New Zealand was in the forefront of efforts to stop French nuclear testing in its Polynesian territories. That campaign led to the bungled attempt by French intelligence agents to blow up a boat in the New Zealand Harbor in July of 1985. The environmentalist group known as Green Peace was planning to use the boat to monitor a French nuclear test. The so-called "rainbow warrior" incident was a major embarrassment for the French, provoking an angry reaction worldwide and strengthening Lange's anti-nuclear resolve. American worries about New Zealand policies surfaced again today when Vice President Quayle arrived in Australia as part of his Asian tour. Quayle discussed the future of the Anzus alliance with Australian Prime Minister Bob Hawk. The Australian leader attempted to dismiss Lange's threat to leave the Anzus Pact as only hypothetical. I interviewed the New Zealand Prime Minister yesterday in New York. Mr. Prime Minister, thank you for joining us. Is the U.S. cold shoulder hurting New Zealand?

PRIME MINISTER LANGE: No, it doesn't. I think probably in a curious way it has the opposite effect. I think that's one of the problems of being big and small. And that's something which maybe different strategies might have had a different effect on New Zealand. But New Zealanders are able to make their estimate of Americans. And they know that my arrival in the White House would be a precursor of the arrival of nuclear weapons in New Zealand, because the administration has been very straightforward. It's said, look, if you want to come back to normal, you do so without weapons in your harbors, and that's a very honorable, straightforward thing to say. It's something which I decline with thanks and so I don't go to Washington.

MR. MacNeil: The Reagan administration clearly hoped and the Bush administration continues to hope, I gather, that by putting this kind of pressure on you, you will change your mind by withdrawing access to U.S. military intelligence and so on and, in effect, rendering cooperation under the Anzus Pact void bilaterally, that they will get you to change your mind, are they going to?

PRIME MINISTER DAVID LANGE, New Zealand: No, they're not. And what's sort of marvelous about it is that they're quite straightforward. They say to us adequate corrective measures must be taken, Vice President Quayle says, should resume port visits, and then everything will be right. In other words, they're not asking for conciliation or negotiation. They're asking for New Zealand to completely reverse its policy arrived at democratically and endorsed in two elections. Well, we're not going to. I'm sorry, but we're not going to. And that is something that I tell you without provocation or without irritation. I think it's actually...New Zealand feels secure. You have to look at the world to understand why New Zealand's taken the step it has. Our hemisphere is water, except for Australia or Indonesia, a little bit of South America and Antarctica. Now, that's the truth to it. We're on assault course to the Antarctic. And as far as I know, there is no power on this earth that wants to go and invade the Antarctic.

MR. MacNeil: Let's come back to the diplomatic strains or relationship for just a moment. It must be strange for the head of a friendly government to come to this country and be afforded none of the usual courtesies or honors or anything else. Does that have some diminishing effect psychologically on your country? Do your countrymen feel slighted?

PRIME MINISTER LANGE: You've got to work out what New Zealanders are like; 3 million people an awful long way from everywhere else, innovative, they have to be, they've got to cope. They don't feel slighted. They feel as though that's a recognition that they're able to stand up for their own principles. What would be demeaning to New Zealand would be that if someone said dip on your dip -- kneel on your kneel -- have our ships in your harbors and you can come to my house. That's demeaning. What's not demeaning is a great nation, a super power saying, your policy is not compatible with our policy and until your policy becomes our policy we can't play ball together. That's not demeaning to New Zealand. It might be demeaning to the United States.

MR. MacNeil: Would you explain the rationale as simply as you can, the rationale for your decision to exclude ships carrying nuclear weapons.

PRIME MINISTER LANGE: Yeah. Because nuclear weapons have no part in our defense strategy, never have. The previous government always said they weren't there. We were told, quite honestly, by the United States that from time to time if their vessels came to New Zealand, they would be nuclear armed. We said, how on earth can an upward escalation of nuclear armaments serve us? Nuclear weapons are illogical in our defense. We come from a maritime region where the dangers are from famine, turbulence, earthquake, all sorts of disturbances that can happen. Cyclones are the biggest threat to the Islands the Pacific at the moment. That is not to discount the huge responsibilities the United States takes internationally. It's just that New Zealand does not fit into a nuclear strategy and rejects. New Zealand has to ask a couple of more questions. Would New Zealand be offended by nuclear weapons? We plead no. If we are threatened by conventional force, should the threat of nuclear weapons be used to deter those who would offer that force? Again, we plead no. Our assessment is that it is no better to be annihilated by a nuclear weapon fired in defense than anger. It is something which is aberrant and we regard as an obscene intrusion into our region. It's likely to cause a deterioration in stability, rather than an enhancement of it. Now that is because we have a particular strategic perspective. It's our world and it's important to us that we have a good level of security in it. Nuclear weapons don't give us that. We took a limited measure of arms control. We don't preach it because it's different for all different circumstances. Good things have happened. We are told that if we took this step, the mosaic of Western solidarity would crumble, arms reductions would be impossible and we, of course, have seen in the last five years an amelioration of tension, a reduction of - - an elimination of one class of nuclear armaments, a very good series of developments between President Reagan and Gorbachev and hopefully between President Bush and Gorbachev. That's good for the world. We're doing what's good for New Zealand.

MR. MacNeil: What if other countries, for example, Denmark shares some of your feelings and as a central member of NATO decided to take the same policy, adopt the same policy, would not the Western, would not the mosaic of the Western alliance really begin to crumble?

PRIME MINISTER LANGE: Well, the Americans have handled that in the past. France has an independent nuclear strategy. Denmark has had a difference of views. Spain has had a series of differences. Greece, of course, it was called the Greek disease until the New Zealanders came along. All of those have been handled. All of those have been I suppose changed according to the strategic importance of that particular partner. But what I have to say to you is that New Zealand has never embraced the handle of the nuclear umbrella. It for us was not a unilateral disarmament decision. It was a decision not to escalate the level of armament.

MR. MacNeil: What do you say to the argument that's made here, for instance by the Heritage Foundation which is a conservative think tank here, that what you are doing is undermining the Western alliance in the Pacific and its ability to respond to a nuclear threat, for instance, by making it more difficult for the U.S. to find alternative bases for ships that might carry nuclear weapons if they were excluded from the Philippines after 1991?

PRIME MINISTER LANGE: What can I tell you this for one simple fact, that there will never be an alternative in New Zealand for the Philippines base. And if the Heritage Foundation were to look on a map of the world, they would see how grotesque that suggestion is. The notion that those huge bases in the Philippines poised presumably for very very sensible strategic impact in that part of the world should suddenly become effective, having migrated thousands of miles to the South, is absurd as well as impractical. And the fact is that Australia has been the host of transit vessels in the past. Australia, itself, cannot be host to a replacement Philippines base, because Australia is a member of the South Pacific nuclear free zone treaty and is contracted not to deploy nuclear weapons there. I, therefore, while I have enormous respect for people who think deeply and ruminate fondly on a world that was existing in the 1950s that the Heritage Foundation do not accept for a moment their thesis that somehow or other New Zealand would block a redeployment from the Philippines, it is nonsense.

MR. MacNeil: What about the continuation of that argument, and that is by spreading and prostletizing for the idea of a nuclear free zone in the Pacific you make it more difficult for the U.S. to counter the increasing Soviet naval presence in the Pacific?

PRIME MINISTER LANGE: Well, let's challenge you on that. You see, the evidence of the Australian Foreign Minister, Bill Hayden, our Governor General, was that notwithstanding the rhetoric of some think tanks the naval presence of the Soviet Union in the South Pacific was actually reduced from what it was. Now, do you see, how does the South Pacific nuclear free zone inhibit the United States in that? And the answer is that it does not at all. The South Pacific nuclear free zone allows international countries the right of free passage through international waters unmolested by the South Pacific nuclear free zone treaty, so you want to give...they put up a man of heavy straw and then they use the heavy artillery to knock it down. The South Pacific nuclear free zone allows the United States to go, the seventh fleet to charge through in grand style, all those vast ocean tracts, and to suggest that it stops them is just contrary to fact and law.

MR. MacNeil: Let me put another argument to you, which I'm sure you've heard, but this argument is made. In Europe, the Western alliance started down the anti-nuclear movement and insisted on keeping its NATO commitment to deploy the medium range missiles with the, they argue, very positive result of ultimately the IBM Treaty, and that the United States should continue to stare down the anti-nuclear movement in the Pacific for the same reasons because good will come of it in the end.

PRIME MINISTER LANGE: That's right. That's what they say. I think there's a lot of sense to that. In Europe, the analysis in Europe is that unilateral assignment would have been a rather stupid, quite unproductive thing to have done. Let's accept that. Does that mean that the South Pacific is the same? We are utterly different in the South Pacific. Wherein lies the impulse to suddenly arm Antarctica. Who's going to make a nuclear base out of the islands? What military force in the world is going to position itself in Tunga? I mean, the idea is grotesque. It does not take account of practical reality. We have in Europe a situation where each is looking down the barrel of batteries of missiles a bus ride away. I have to tell you that New Zealand and the Southwest Pacific is actually a very long way. That is not to give us a false sense of security. We have our own security problems. But they are not the problems of the potential for a nuclear eruption arising in the South Pacific. A volcanic eruptions is a bigger threat.

MR. MacNeil: I've put all the negative arguments to you. What do you hope positively to achieve beyond the range of your own domestic politics by adopting this policy? What wider purpose do you have?

PRIME MINISTER LANGE: Well, it challenges us to be, have a regional security proposal and be self-reliant, and that means that we have to embrace policies which are economically provident for countries who need to buttress themselves so that they maintain a hope of economic as well as political independence, and - -

MR. MacNeil: Which countries are you talking about?

PRIME MINISTER LANGE: Oh, you have got the whole range of them. You've got the Cook Islands, you've got Samari -- New Guinea -- all countries which are potentially post colonial trouble countries and who have economies which don't match their political independence with economic independence. That really is our forward fortress of serenity. Given disturbances there, we can have low level military contingencies which we must never allow to escalate to the point where super power intervention becomes necessary. That is one of the fallacies about Anzus. The United States is not stupid. It never provided a security guarantee to New Zealand. It never said to New Zealand or Australia, get into a scrap, mate, and we're there with you. How appalling that would be, that if you got into problems in the Southwest Pacific, a super power with nuclear competence suddenly landed up to join you. The United States wouldn't buy into that and I'm glad they didn't. Now what we have to do is we have to have our regional security and we have to make sure that we can cope and we have, therefore, adjusted our military forces accordingly. Our armed forces are no longer a fragment of someone else's book, explicable on their own terms.

MR. MacNeil: You're approaching an election in New Zealand.

PRIME MINISTER LANGE: Eighteen months.

MR. MacNeil: Eighteen months away. The National Party, as I understand it, your opponents, would reverse this policy if they were elected, is that correct?

PRIME MINISTER LANGE: It's hard to know. My suspicion is that they would, but they are I think having some emissaries in Washington at extremely high levels this week and the only conclusion one can draw from that is that they would, at least they'd tell Washington they would. Whether they would tell the New Zealand domestic electorate they would is another matter. It would depend on whether they wanted to get elected or not. But it's not a black and white issue in New Zealand. There's no party in the last election that stood against the government and said, look, you've got to go because we've got to get these nuclear weapons back in New Zealand. No one did that.

MR. MacNeil: What will determine whether you actually formally withdraw from the Anzus Pact?

PRIME MINISTER LANGE: We'll have to evaluate our options. What happens is that Anzus, of course, is still alive and cannot be unilaterally destroyed and this very important treaty is between Australia and the United States. It also curiously is the bilateral leg of our relationship with Australia. So there's no proposal to torpedo the treaty. What it provides for is a council of ministers and a meeting thereof and we have been excluded from those meetings for some four years. Now it seems to me that if that's going to be a problem, we probably ought to accept the inevitable, recognize the reality, give notice of our withdrawal from a council that we're not allowed to attend.

MR. MacNeil: If you had your way, what ideally would you like the United States to do in response to your stand?

PRIME MINISTER LANGE: Accept the reality that there is a way in which we can cooperate with conventional weapons.

MR. MacNeil: And restore access to U.S. intelligence and all forms of military cooperation?

PRIME MINISTER LANGE: If you're a policeman, sometimes you go in with a warrant, sometimes you go in with handcuff, sometimes you go in with a truncheon, sometimes you go in with a pistol, and sometimes you go in with a machine gun. We are prepared to deal with the low level contingencies of conventional armaments and we stop at nuclear weapons.

MR. MacNeil: Well, Prime Minister Lange, we thank you very much for joining us.

PRIME MINISTER LANGE: Thank you. RECAP

MS. WOODRUFF: Once again, the main stories of this Wednesday, the Supreme Court heard arguments in a case which challenges the landmark Roe versus Wade decision affirming a woman's right to an abortion. The U.S. economy grew at a strong 5 1/2 percent annual rate. WE LOVED LUCY

MS. WOODRUFF: And finally tonight, a look back at Lucille Ball, who died today in Los Angeles at the age of 77. Her career spanned more than 60 years, from her days as a chorus girl to television and film star. But Lucille Ball is best remembered for her 20 years at the top of television comedy starting in the 1950s. And that's how we remember her tonight in a scene from one of her best known I Love Lucy programs, where she and her sidekick, Ethel, played by the late Vivian Vance, try to earn a little extra money working at a chocolate factory. [SCENE FROM "I LOVE LUCY"]

MS. WOODRUFF: Lucille Ball, in the words of Bob Hope today, "God has her now, but thanks to television, we'll have her forever.". Robin.

MR. MacNeil: That's the Newshour tonight and we'll be back tomorrow night. I'm Robert MacNeil. Good night.