The MacNeil/Lehrer NewsHour

MR. MacNeil: Good evening. I'm Robert MacNeil in New York.

MS. WOODRUFF: And I'm Judy Woodruff in Washington. After the News Summary, we devote our entire program tonight to the Supreme Court's long awaited abortion decision. First, we analyze what the court said with distinguished legal scholars. Then we get reaction from advocates on each side of this issue and we discuss what might happen next with two members of Congress. NEWS SUMMARY

MR. MacNeil: The Supreme Court ended its term today with its long-awaited abortion ruling. The Justices upheld Pennsylvania's restrictive abortion law and at the same time reinforced the 1973 Roe Vs. Wade decision which legalized abortions. In a five to four decision, the court said it recognized the right of a woman to choose to have an abortion and to obtain it without undue interference from the state. But in a seven to two decision, the Justices found that most of Pennsylvania's restrictions were acceptable. They upheld the requirement that a woman seeking an abortion receive counseling on alternatives, that she wait 24 hours before having the abortion, that doctors provide detailed reports to state officials on all abortions performed, and that minors receive parental consent. The court overturned a requirement that women inform their husbands before getting an abortion. Both sides of the abortion debate reacted to the decision, including Pennsylvania's governor, Robert Casey.

GOV. ROBERT CASEY, Pennsylvania: The decision moves the country sharply away from abortion on demand and begins to reestablish in our law in a balanced and reasonable way the historic and traditional rights of members of the family, mothers, their unborn children, parents. The decision, while not overturning Roe vs. Wade, clearly returns to the people the power to regulate abortion in a reasonable way so as to protect maternal health and reduce the number of abortions in our country.

KATHRYN KOLBERT, Center for Reproductive Rights: The court has taken away the fundamentals rights that women possessed prior to today. We decry that result. On the other hand, for the women who are battered in Pennsylvania, who are unable to notify their husbands of the abortion choice because of the decision that their notification would be against their own best interest, we clearly believe that the court has vindicated those women's rights and appreciate that decision.

MR. MacNeil: President Bush welcomed the decision. In a written statement, he said the Pennsylvania law was reasonable and "supports family values in what is perhaps the most difficult question a family can confront." The President reaffirmed his opposition to all abortion in all cases, except rape or incest, or where the life of the mother is at stake. In Little Rock, Arkansas, Gov. Bill Clinton had this reaction to the ruling.

BILL CLINTON, Democratic Presidential Candidate: I think this is a very disturbing day. I regret it very much. You have four judges plainly committed to repeal Roe V. Wade, three others nibbling around the edges, and a brave Justice Blackmun saying he doesn't know how much longer he can hang on. This is one of the things this Presidential election is about and I hope the American people will say in clear and unambiguous terms we do not want to go back.

MR. MacNeil: Undeclared Presidential Candidate Ross Perot also reacted to the decision. In a statement, Perot said, "As a citizen I respect and obey the laws of the country as interpreted by the Supreme Court. My position has been and remains that basically this difficult decision should be a woman's choice." House Speaker Tom Foley today predicted Congress would pass a bill making an undiluted version of Roe V. Wade the law, but he conceded it would probably fail to withstand a veto by President Bush. We'll devote the rest of the program to the story after the News Summary. In another ruling today, the Supreme Court expanded the rights of private landowners. In a six to three decision, it said, "Citizens can seek compensation if government regulations strip their land of all economic value." Judy.

MS. WOODRUFF: Strong aftershocks jolted Southern California today. They followed yesterday's earthquakes which killed a young boy and injured more than three hundred and fifty. The hardest hit area was San Bernadino County, where 20 homes and 10 businesses were completely destroyed. More than 1,000 houses were damaged. The cost of cleaning up the wreckage was estimated at $16 million. On the other side of the continent on Florida's Gulf Coast, floodwaters continued to rise today. Heavy rains have caused the Myaka River to swell beyond flood stage, forcing several hundred people from their homes. Numerous roads have been shut down. At least one person has died.

MR. MacNeil: The United Nations Security Council today ordered a thousand additional peacekeeping troops to the Bosnian capital of Sarajevo. The Council vote was unanimous. A battalion of Canadian U.N. forces now in Croatia will immediately be deployed at the Sarajevo Airport to reopen it for shipments of humanitarian relief supplies. The Council's resolution threatened possible military action if the peacekeepers are fired on. The State Department said today the U.S. would support a new resolution calling for the use of force if that were required. At about the same time as the Security Council vote, the last Serb fighters gave up their positions at the airport in Sarajevo. Vera Frankel of Worldwide Television News narrates our report.

MS. FRANKEL: This was the moment the worldwas waiting for, the U.N. taking control of Sarajevo Airport. This could be the first step on the road to peace. Despite their achievement, the U.N. forces know it isn't going to be easy. Earlier, it seemed there was little chance of the cease-fire holding. The Serbs blamed the Bosnian forces. They kept firing on Bosnian positions surrounding the airport. The U.N. forces were helpless. But then suddenly the firing stopped and the Serbs prepared to move out. First, they started loading up supplies from around the terminal. Then the Serbs lowered their flags as a symbolic gesture to show that they were on their way. The whole armored division then headed off into the distance, leaving the airport in U.N. hands. More than a thousand Canadian troops are due to join them. Flights of food and medicine are expected soon. The starving population of Sarajevo has been desperate for aid. Its arrival cannot come too quickly.

MR. MacNeil: Members of the U.N. fact finding mission and an American diplomat were fired on in the former Soviet republic of Moldova. They were in an ethnic Russian region which is fighting Moldova's ethnic Romanian majority for independence. There were no injuries in the attack.

MS. WOODRUFF: In South Africa, thousands of blacks mourned the victims of the Boipatong massacre today. At least 40 people were killed in bloody political violence in the township on June 17th. Nelson Mandela's African National Congress has accused the government of taking part in the killings. Jeremy Thompson of Independent Television News reports from Johannesburg.

MR. THOMPSON: The sound of a nation in mourning as the people of Boipatong pay their last respects. Coffins emerged from almost every home, carrying victims of a massacre which has shattered families and shocked South Africa. Thousands joined the funeral procession, some in anguish, some in anger, in the township stadium, 37 caskets side by side testament to the sheer scale of the tragedy, grandmothers and babies hacked down in the violence which has now claimed 8,000 lives in the last two and a half years. It was a day as much for politics as prayers, with speaker after speaker blaming President DeKlerk for failing to stop the killings.

CYRIL RAMAPHOSA, African National Congress: He has proved that he is incompetent and useless because he says he cannot control the security forces.

MR. THOMPSON: Impatience was giving way to militancy. Though the ANC said talks were still possible if the government met its demands, more mass action was already planned to follow this day of mourning. Even as the people of Boipatong were burying their dead, another body lay hacked and burned on their streets.

MS. WOODRUFF: Algeria's head of state was assassinated today. Mohammed Budiof was shot while giving a speech at an Eastern Algerian town. Audience members took cover after explosions and shots rang out. Budiof was killed immediately. Up to 41 other people were reported injured in the shooting. A government report said the assassin was arrested. The 73-year-old Budiof was appointed in January by a council of military leaders. The council had seized power to prevent an election victory by Muslim fundamentalists.

MR. MacNeil: At home in economic news, new home sales fell 5.6 percent in May to the lowest level in eight months. It was the fourth straight monthly decline. Aetna Life & Casualty announced today that it will eliminate nearly 5,000 jobs by the end of the year to cut costs and improve profits. The company said the job reductions will save about $200 million a year.

MS. WOODRUFF: A House Appropriations Committee today voted to slash the Navy's headquarter staff by 10,000 positions because of the so-called "Tail Hook Sex Scandal." The committee's Democratic Chairman accused the Navy of trying to cover up the incident. Investigators say 26 female officers were sexually assaulted by present and former male pilots at the 1991 convention in Las Vegas. Navy Secretary Lawrence Garrett resigned Friday over the handling of the incident. The full House will vote on the staff cuts Thursday as part of a $253 billion defense bill. That's it for the News Summary. Now it's on to today's long awaited abortion ruling by the Supreme Court. FOCUS - ABORTION - THE DECISION

MR. MacNeil: And we devote the rest of the NewsHour to analysis of the historic Supreme Court decision on abortion. By a vote of seven to two, the court agreed to uphold three of four restrictions on abortions in Pennsylvania. But at the core of the case was whether or not they should overturn Roe V. Wade, the 1973 decision that legalized abortion and made a woman's reproductive choices a fundamental right. On that point, five Justices agreed. Three appointees of Presidents Reagan and Bush delivered the court's opinion. Justices Sandra Day O'Connor, David Souter, and Anthony Kennedy wrote: "After considering the fundamental constitutional questions resolved by Roe, we are led to conclude this; the essential holding of Roe v. Wade should be retained and once again affirmed." Justices Henry Blackmun and John Paul Stevens, the two liberals on the court, also agree that Roe should not be overturned. The long awaited decision provoked a variety of reactions today. Here's a sample.

RANDALL TERRY, Operation Rescue: The blood of 30 million children is already crying out to almighty God for vengeance. And today, three Reagan-Bush appointees stabbed the pro-life movement in the back and affirmed the bloodshed. I only wish that Justices O'Connor, Souter, and Kennedy had the courage to hold in their hands the victims of choice, brutalized, dead babies.

PHYLLIS SCHLAFLY, Republican National Coalition for Life: This decision will not stop a single abortion. This decision is basically a right to know decision, the right of the mother to know about the unborn baby within her, the right to have informed consent about this drastic surgery, and the right of the mothers and fathers of minor children to know what is happening to their children. This decision is supported by the overwhelming majority of the American people.

NADINE STROSSEN, American Civil Liberties Union: What has happened today is historic not only from the perspective of reproductive freedom but constitution law and individual rights more generally. This is the first time in our history that the United States Supreme Court has first granted and then taken away a fundamental individual human right, in this case the basic right of a woman to decide whether to terminate her pregnancy, whether to carry it to term.

KATE MICHELMAN, National Abortion Rights Action League: What the court did today was to say to politicians in states around this country that you can impose restrictions that force women to have to jump through hoops or to overcome burdens before they can act on their decision to have an abortion. And some of those women cannot overcome those burdens, women who have to travel twenty-four to forty-eight hours, have to wait, poor women, rural women will not abe able to overcome those burdens. And when that happens, women's lives are endangered.

REP. CHRISTOPHER SMITH, [R] New Jersey: Thatthe pro-abortion side is going ballistic over this ruling underscores just how extreme and radical they truly are. They demand nothing less than abortion on demand, a position that treats the baby as mere property to be cut, dismembered or chemically poisoned at will.

REP. BARBARA BOXER, [D] California: The lines are drawn and they are clear. Congress must act to restore the right to choose. And we will do that. We will pass the Freedom of Choice Act. And, of course, I believe the President will veto that Act. And then the American voters must decide this issue in November.

MR. MacNeil: For more on what the court did today, we turn to Nina Totenberg, legal affairs correspondent for National Public Radio. Nina, describe the scene when the decision was handed down.

MS. TOTENBERG: Well, it was apparent this morning that this was going to be an historic day. The retired Justice William Brennan entered the courtroom shortly before 10 o'clock, followed by some of the spouses and relatives of the Justices. And behind them, you could see the law clerks and the staffs of the Justices two and three deep standing in the corridor, just behind the family rows. And at 10 o'clock, the bell sounded, the members of the court emerged from behind the red velvet curtain and the chief Justice indicated that the opinion in this very important case would be delivered by three Justices, which is in and of itself a rarity.

MR. MacNeil: And let's take the largest issue -- and those three Justices were O'Connor --

MS. TOTENBERG: Justice O'Connor, Justice Sandra Day O'Connor, Justice Anthony Kennedy --

MR. MacNeil: Right.

MS. TOTENBERG: -- who like O'Connor was appointed by President Reagan, and Justice David Souter, appointed by President Bush.

MR. MacNeil: Well, first, let's take the largest issue first, the broadest issue, upholding Roe v. Wade. Four voted to overturn it, five said no. Describe that division and some of the key opinions from Souter and Rehnquist and Scalia and Blackmun.

MS. TOTENBERG: Well, Justice O'Connor actually outlined how the court had fallen, that her three, as it were, combined with the two most liberal Justices, Harry Blackmun and John Paul Stevens, combined to make a total of five to uphold what she called "the central holding in Roe versus Wade," and that is that a woman does have a right to choose. However, her three Justices then went on to say that the state does have the power to regulate, to encourage childbirth over abortion, to discourage abortion, to regulate in this sphere as long as there is not an undue burden, meaning an obstacle that is put in front of a woman's right to choose, an obstacle that she can't easily overcome, that as long as there is not an undue burden that a woman maintains the right to choose. Now, that is a different standard than Roe versus Wade. It gives the state a lot more power to regulate. It will, in fact, make abortions more difficult to obtain throughout the country, but it also means that states will not be able to ban abortion outright.

MR. MacNeil: Tell us a little bit about Justice Souter's statement, that if the court were to be overturned on this case, that it would undermine not only confidence of the court, but the country.

MS. TOTENBERG: Well, both Justice Souter and Justice Kennedy were very interesting. Justice Souter said that as long as Roe versus Wade had worked, was workable, which it was, and as long as the factual situation surrounding this issue had not changed dramatically in the 20 years since Roe, that people had relied on this decision, they had made personal choices, states had made policy choices, institutions had made choices, and that the court in a huge controversy like this, even if the members of the court now didn't agree with Roe per se, that they should not reverse Roe at this late date, that to do so would mean that the law was not a continuum for people to rely on, and that to do so would undermine the court's legitimacy, that it would make it look like it was just knuckling under to a new set of political values. Justice Kennedy was particularly interesting I thought because in the last major abortion case in 1989, he sided with Chief Justice Rehnquist in advocating a standard that the Chief Justice still advocated today that would have reversed Roe versus Wade. In that three years, obviously, something has changed in Justice Kennedy's thinking. And today he said that abortion is such a personal choice that a woman, herself, is the one who bears the child, the pain, the anxiety of the pregnancy, that the state does not have the power under the 14th Amendment to interfere to prevent her from making that choice, that it can discourage the choice, but it can't prevent it.

MR. MacNeil: Describe Justice Blackmun's statement that we heard Bill Clinton refer to in the News Summary today.

MS. TOTENBERG: Well, Justice Blackmun said that he wished that all of these restrictions in the Pennsylvania law had been struck down, but he was greatly gratified that the court was not abandoning Roe in its entirety. And he concluded by saying, alluding to the fact that this was only a five to four ruling, "I am 83 years old. I cannot remain on this court forever, and when I do step down, the confirmation process for my successor may well focus on the issue before us today. I fear for the darkness," said Blackmun, "as four Justices anxiously await the single vote necessary to extinguish the light."

MR. MacNeil: He was also very, very strong on Rehnquist's dissent, wasn't he, on this case? It was almost a personal attack in a way, wasn't it?

MS. TOTENBERG: Robin, there was not an opinion written in this case that was not personal. The Justices were attacking each other in very personal ways. All of them -- you know, you can't tell who wrote that -- who actually wrote what in that section and by the three moderates, for want of a better expression -- but with the exception possibly of that decision, everybody else's were full of pot shots at each other. Justice Scalia wrote a separate dissent that was joined by Thomas White and the Chief Justice. The Chief Justice spoke from the bench this morning, articulating his dissent. Justice Blackmun was very personal. Justice Scalia called the majority's views "outrageous," made fun of their reasoning. This was not bean-bagged today. This was very personal.

MR. MacNeil: How long is it since you've witnessed that kind of performance? I mean, in what other cases did the Justices recently actually personally attack each other's decisions and judgment?

MS. TOTENBERG: I mean, I can remember other cases where a Justice or two has done it. Justice Scalia did it in the Webster decision, the abortion decision of 1989. But I cannot remember a case where so many of them did it.

MR. MacNeil: Describe the one of the four -- of the five Pennsylvania restrictions on abortion that they struck down today and that they wouldn't allow.

MS. TOTENBERG: The one provision that was struck down was the provision that required a woman to notify her spouse before she could get an abortion. And the court reasoned that that would only -- that most women discuss an abortion choice with their husbands and that the only ones who don't are ones who fear abuse and that this was none of -- this was the woman's choice and her husband did not have to be notified, that she was a grown woman, so to speak.

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

MS. TOTENBERG: Thank you, Robin.

MR. MacNeil: For some legal analysis of today's decision now, we're joined by two law professors with different views on the Supreme Court's role in the abortion debate. Kathleen Sullivan is a professor of law at Harvard University. Mike McConnell is a law professor at the University of Chicago. Mr. McConnell, how do you react to today's decision?

PROF. McCONNELL: I have to say it's a very surprising decision. This was, notwithstanding a number of comments from activists and politicians, this was a near total victory for the pro-abortion right side.

MR. MacNeil: How do you explain all those people who were out there today saying it was a great defeat?

PROF. McCONNELL: I can't say. My only guess is that they've gotten so used to listening to their own gloom and doom rhetoric that when they win, they have trouble recognizing it.

MR. MacNeil: Kathleen Sullivan, do you see it as a great victory for the abortion rights side?

PROF. SULLIVAN: Well, I do think it's a stunning defeat for the judicial philosophy of the Reagan and Bush administration on the abortion issue. They've had 12 years and five vacancies on the Supreme Court to try to get Roe overturned, and today was a stunning failure to do so. I think that the reason that the pro- choice forces regard today's decision as at least a mild setback though is that first of all, the court did allow some setbacks, some hurdles, some hoops to be imposed on women seeking abortions, but more importantly, this is a decision that is now hanging by a thread. The reaffirmance of Roe today was five to four. It depends on the continued health of Justice Blackmun, the fifth vote, the author of the landmark Roe opinion. And that is why I think the pro-choice forces see the political arena as still a very important place to try to preserve the opportunity for choice.

MR. MacNeil: You -- I remember you telling us on this program - - it must have been 18 months or so ago -- that you never thought Roe would be really overturned, that -- but do you still think so, or do you think it is very fragile now?

PROF. SULLIVAN: I think today's decision is exactly what I expected 18 months ago. I expected that conservatism in the sense that was saw it today in Justice O'Connor's and Kennedy's and Souter's opinion would respect the interest of individuals and liberty and privacy and the force of precedent and the rule of law and not just the active wish to throw this issue out to politics that was embraced by the Reagan and Bush administrations. But everything turns on the next appointment. The overrule of Roe could be one vote away unless the court as well as the abortion issue plays a role in this national political year.

MR. MacNeil: Mr. McConnell, do you see it hanging by as slender a thread?

PROF. McCONNELL: Well, it's true that the vote was five to four, but if you look at the Justices who are possibly approaching retirement age, you'll find that Justices Rehnquist and White are not much less likely soon retirees than Justice Blackmun, so it could go either way.

MR. MacNeil: You heard -- if you were listening to the beginning, you heard the Democratic presumed candidate, Bill Clinton, translating Blackmun as meaning that Roe depends on this election. Do you agree with that, Mr. McConnell?

PROF. McCONNELL: Well, I think one of the extremely unfortunate things about the court's approach to this issue has been by assuming control over it and taking it out of the hands of the American people that it has made itself the focal point of all of this contentiousness instead of allowing it to be worked out by people in their various states on a basis where we might be able to reach a set of reasonable moderate rules more in keeping with the opinions of the American people. I think this is tearing the institution of the court apart and it is clearly a self-inflicted wound.

MR. MacNeil: But isn't that what the court has done today by saying the states have a right to make their own rules on abortion within certain, certain limits? Haven't they done exactly what you just said would be a good idea?

PROF. McCONNELL: Absolutely not. The limits -- the area in which the court is allowing the state legislatures to operate is so narrow as to be virtually meaningless. Essentially all that the states may do is that they may attempt to persuade, but they may not restrict at any point, may not impose any serious restrictions on the abortion right. This leaves the American law of abortion at the extreme within the Western world. There is no other Western country that has adopted rules on abortion as permissive as ours.

MR. MacNeil: Do you agree with that, Kathleen Sullivan?

PROF. SULLIVAN: I agree with that statement, but not with Prof. McConnell's view of it. I think that's right. The Supreme Court today clearly said that the states may not send women back to jail cells or back alleys, they may not make abortion a crime. That clearly would be struck down under the court's test today. What the states may do is impose some headaches and hassles, some extra hoops, but certainly not a husband's veto or the veto of the sheriff in the jail cell. So I agree with the facts, but I'm heartened by that, not disappointed. I'm heartened because I have to disagree with Prof. McConnell, the court has put the abortion decision in the hands of the American people, but the American people understood as individuals making their own conscientious decisions, rather than majorities in political chambers making those decisions for them. It's been put back in private hands, rather than the hands of political majorities.

MR. MacNeil: Mr. McConnell, Prof. McConnell, if you believe as you do, what do you think the court will -- how today's ruling will affect it when the more restrictive state laws, Louisiana, Utah, the territory of Guam, come before the court?

PROF. McCONNELL: Based upon a very quick analysis, it does not appear to me that those laws have very much any serious chance of being upheld.

MR. MacNeil: Do you agree with that, Kathleen Sullivan?

PROF. SULLIVAN: Yes, I do.

MR. MacNeil: As the court watchers, as both of you court watchers, what does today's decision say about the way Justices' thinking evolves as they settle into the culture of the court over a number of years? For instance, you heard what Nina said about Justice Kennedy's apparent change in three years on this position. What does it say about how independent-minded Justices become, whatever their ideological mindset may have been when they went on, Mr. McConnell?

PROF. McCONNELL: It suggests to me that they come on the court with a certain independence of spirit, but that there is a very strong pull toward the approved position of the Washington elite. And I fear that that may account for some of the shift.

MR. MacNeil: Ms. Sullivan.

PROF.SULLIVAN: I have to disagree with that. I think of course we've seen that life tenure does give you the chance to change your mind, but I think in the direction as we say today of integrity, with real principles. We've seen that conservatism. We've heard a lot about a conservative court, the conservative juggernaut. But today and last week in the school prayer decision, we saw that this conservative judicial animal has many stripes. And the stripes we saw today were the conservatism of those who think government should stay out of our personal lives and the court should respect its precedents and not change the law to follow the election returns. Those are conservative decisions based on principle, not the Washington cultural elite.

MR. MacNeil: What did you make of Justice Kennedy's change of position, Ms. Sullivan?

PROF. SULLIVAN: Well, I think Justice Kennedy both today and last week in the school prayer decision, where of course, he came down against school prayer being imposed on students at a middle school graduation, I think Justice Kennedy showed that he looked into the abyss of extreme conservatism and blinked. He decided that his devotion to the principle that individual conscientious decisions should be made about such deep moral and spiritual questions as prayer and abortion, those decisions have to be left to the individual, so he put himself in line with the old conservative tradition of someone like Harlin, the Justice who 30 years ago as a conservative, paved the way for the right of access to contraception. Justice Kennedy today revealed himself to be a moderate conservative in Harlin's tradition.

MR. MacNeil: Mr. McConnell, do you want to come back on that?

PROF. McCONNELL: Well, conservatism has many meanings, but I see very little that is conservative about a decision that upholds a ruling as radical as this one, that overturned the decision of the peoples of virtually every state and that places the United States out on an extreme limb with respect to a matter which most Americans consider to be one of close and difficult judgment and not an occasion for extremism.

MR. MacNeil: So you just don't see this as to -- to put it crudely -- as a victory for states' rights today?

PROF. McCONNELL: Absolutely not. This is a continued indication that the Supreme Court is going to write the law of abortion and the Supreme Court is going to write a law which is far more extreme than that which the people would choose if they were left to their own devices. That isn't to say that I think that most states would adopt very serious pro-life laws. What they would do I think is to attempt to find moderate and humane solutions that would take -- consider the interests and considerations on both sides into effect and that would place us more in line with our fellow Western countries as paying serious attention to the values of the unborn life, while at the same time recognizing the tremendous burdens that unwanted pregnancies can place on women and families.

MR. MacNeil: Mr. McConnell, you were rather hard on the court a moment ago. I just wonder what -- you heard what Nina said -- I wonder what you made of Justice Souter's statement that it would be -- it would erode the legitimacy and prestige of the court to go back on Roe v. Wade now, and if you undermine the court, you undermine the country.

PROF. McCONNELL: I frankly do not understand that. I think that at important points in our history, the Supreme Court has reversed itself when it has become clear that it was in error. I do not think that that weakens the court. I think it strengthens the court. If the idea here is that the court should dig in its heels whenever there is significant opposition from the people, I think that that is a recipe for disaster.

MR. MacNeil: Ms. Sullivan, what's your response on that?

PROF. SULLIVAN: Well, I don't think that this is a point anything like the point we reached when Brown versus Board reversed centuries of segregation in America. This is not a point at which the consensus in America has changed. I differ with Mr. McConnell about our differences from the rest of the world. The United States is not Ireland or Germany. It's an extremely heterogeneous country with many religious and cultural and ethnic traditions. In that kind of a country, abortion has to be more a matter of personal choice and not a matter of cultural imposition. So I don't think we've reached the kind of consensus in this country about this issue that would justify such a radical change as the overrule of apartheid by Brown versus Board.

MR. MacNeil: Mr. McConnell.

PROF. McCONNELL: Well, the problem with phrasing the idea in terms of personal choice is that it simply eliminates serious consideration for the other side of the balance, the fact that there is a fetus which many people conscientiously believe to have moral worth, indeed, many people believe is a human being entitled to all the rights that we are. By leaving the decision to those persons who have -- who are inconvenienced by this life and not allowing the community as a whole to stand up for that developing life and to present at least some counter way to the demands of the moment I think is already to stack the deck. And this has been the judgment of our fellow Western democracies.

MR. MacNeil: Well, Ms. Sullivan and Mr. McConnell, thank you both for joining us. Judy. FOCUS - STOP ABORTION NOW - KEEP ABORTION LEGAL

MS. WOODRUFF: We turn now to a look at how today's decision is viewed by advocates for both sides and by members of Congress who are headed for a debate over new legislation on abortion. Joining us are Rep. Patricia Schroeder, Democrat of Colorado, Rep. Vin Weber, Republican of Minnesota, Susan Smith, policy director of the National Right to Life Committee, and Kate Michelman, executive director of the National Abortion Rights Action League. Kate Michelman, what's your reaction?

MS. MICHELMAN: Well, I think when you cut through all the legal technicalities, what we see is the court giving states much greater, much more sweeping power to create obstacles for women choosing abortion. I mean, before today, a woman could decide. After today, more and more, politicians and government can intrude in this decision. I really think it was a devastating blow to women and their freedom of choice. The court did what we expected it to do. It upheld the Pennsylvania law. And I would have to differ with some of the discussion that was going on earlier. I don't see how a court that six years ago overturned these very same provisions saying Roe versus Wade made them unconstitutional today a court, a Bush court can uphold those very same provisions and still say Roe versus Wade and the fundamental right exists. It's inconsistent. It doesn't work. The fact is the court did uphold Pennsylvania, a very restrictive law. It gave states sweeping power to intrude in these decisions. It took away the fundamental rights status of the right to choose, and I think it opened the door and gave a green light to politicians all across the country. It did not. It's true it did not go so far as to overturn Roe versus Wade explicitly. But we never expected it to overturn Roe versus Wade explicitly. We didn't expect the court to do that at all.

MS. WOODRUFF: But you just heard Prof. Sullivan saying she's heartened that the court has put the decision in the hands of the people and not in the hands of husbands who could veto a decision or a judge or someone else.

MS. MICHELMAN: It is -- I am particularly heartened, having been a woman who had to get a husband's permission who had left me for an abortion, that they overturned that provision. But, remember that they also upheld four other provisions putting in the way obstacle after obstacle for women who need abortions. Also, we cannot minimize the importance of the four Justices, as opposed to in Webster there was one, Scalia, four Justices today called for the overturn of Roe and would have supported criminal bans on abortion. We are one George Bush appointment away and, if you will, one Clarence Thomas away from a complete criminal ban on abortion.

MS. WOODRUFF: Susan Smith, what's your reaction?

MS. SMITH: Well, this is a tremendous disappointment to the pro- life movement and as Prof. McConnell said earlier on your program, it's a near total victory for the pro-abortion movement. And the fact that the pro-abortion lobby is claiming that this is a defeat for them I think is indicative of the extreme agenda of the pro- abortion movement, because what the court said today explicitly is that there remains and they reaffirm a constitutional right to have an abortion even in the latest stages of pregnancy, and they, while they upheld certain provisions of the Pennsylvania law, such as the requirement that women be informed about the risks and alternatives to abortion, and the risks of child birth, and the probable gestational age of the fetus, and they also upheld the parental consent provision, that is encouraging, but what Kate Michelman is saying is that the court by reaffirming Roe v. Wade and the constitutional right to abortion didn't go far enough because they should have struck down a provision which requires women to be informed of the risks of abortion which has 86 percent of the support of the American public, according to a Gallup Poll taken in January. And I think that it shows just how out of step the pro-abortion movement is with the American public, who support measures like parental consent and informed consent.

MS. WOODRUFF: Out of step?

MS. MICHELMAN: Well, first of all, I'd like to correct what Susan says about us. We're not pro-abortion; we're pro-choice. We believe in a woman's fundamental right to make this very important decision, free from any government intrusion. So it's an important correction. Secondly, these restrictions that are called moderate by Susan Smith and the National Right to Life are back door attempts to ban all abortions under all circumstances. They're disappointed today because the court didn't overrule directly, didn't overrule Roe, and accept criminal bans on abortion, or open the door to criminal bans. But they've got four Justices willing to do that. The court -- I mean -- and I want to correct something else about the American public and the support for these restrictions. Once the public has a chance to examine these restrictions, know who's behind them, once the public can assess the impact on women's lives and the dignity of their lives, of these restrictions, they vote to turn them down, as they did in Oregon. They voted down a ballot initiative, a public referendum that would have required mandated parental involvement. They voted it down because they understood that they impose greater danger to women's lives.

MS. WOODRUFF: But let's talk about today's decision. Women can still get --

MS. MICHELMAN: Yes.

MS. WOODRUFF: -- an abortion in every state in the United States.

MS. MICHELMAN: Women can get abortions but in the state of Pennsylvania, beginning today in the state of Pennsylvania, women must jump through hoops, go through obstacles, in order to get abortions. And we can't minimize what that means. What that means is for women who can't overcome those obstacles, who have to travel long distances and add 24 hours, that, first of all, pushes the abortion later, makes it more difficult and dangerous. It can pose burdens that they can't overcome, and it opens the door -- as I said -- it gives a green light to politicians across the country to enact more onerous restrictions. It's a very, it's a very murky sort of area. Basically, the court really did open the door for greater and greater restrictions.

MS. WOODRUFF: Susan Smith.

MS. SMITH: Well, it's just preposterous to say that the provisions in the Pennsylvania law are extreme and onerous. As I said before, the parental consent provision commands 70 percent of the support of the American public, again, a Gallup Poll published in January 1991, an informed consent provision, which merely requires that the woman be informed about the risks associated with abortion and the risks associated with child birth and the probable gestational age. 86 percent of the American public support these kind of restrictions, so, again, I think that it's indicative of the extreme agenda of the pro-abortion lobby. And now they are turning to Congress to pass this so-called "Freedom of Choice Act" which would, in fact, invalidate provisions such as those in the Pennsylvania statute requiring a 24 hour cooling off period, informed consent --

MS. WOODRUFF: We're going to get to that in a moment, but your point earlier that this is a setback for the pro-life cause, how do you square that with those who say, like President Bush, who said, he said he was pleased with the decision, he said, we are, he said, it upholds "reasonable restrictions?"

MS. SMITH: Well, they are reasonable restrictions and undoubtedly, President Bush is responding to that component of the decision. But we have no doubt that President Bush is disappointed that the court went so far as to reaffirm the right to have an abortion, again, at any point during pregnancy. President Bush has stated many times his desire to see Roe v. Wade overturned. And again, while we know that a majority of the American public does not support a complete and total ban on abortion, we know, for instance, again, the Gallup Poll showed that 73 of those polled support a ban on abortion after the third month of pregnancy, except to save the mother's life. So the American public supports the kind of moderate restrictions enacted by the Pennsylvania law. But the decision today that the court handed down is not going to allow the states to pass laws which ban abortion in the fourth and fifth and sixth month. That's a tremendous setback for us. FOCUS - ABORTION - WHAT'S NEXT?

MS. WOODRUFF: Congresswoman Schroeder, what is the effect of this going to be?

REP. SCHROEDER: I think the effect of it is that we are going to report out a judiciary tomorrow the freedom of choice bill, and we are going to go back to where Roe v. Wade was before the Webster decision, which is the law of the land for almost 20 years and worked very well. Let me go through what that is. And that is that up until the viability of the fetus, the woman has the right to choose, it is a personal decision. Post viability of the fetus, the state can weigh in and put restrictions on. This case today was very shocking because they said they were upholding that decision and then really proceeded to gut it. The prior Roe v. Wade courts turned down these restrictions that they put on in all cases except for the parental consent one. What are we talking about? Everybody's sitting around saying, oh, well, these aren't bad, these aren't bad at all. Let's talk about this. If I as a woman or any woman in America went to see a doctor about an abortion because of a physical condition, because of rape, incest or whatever, this says the state has the right to have the doctor, not a nurse, but a doctor must present a lecture written not by the doctor but by politicians, the state legislature, on whatever it is they want her to know. And after she's received that, even then she's still not capable of making the decision. She must go home and wait at least 24 hours before. That's saying she's just not adult enough to quite trust with this. And then finally, her records and her talking to the doctor are all subject to state regulation. That very important doctor-patient relation is now blown wide open in this case for women and not only that, remember that had Justice Kennedy not been Justice Kennedy but Justice Bork, there would have been nothing around. So it would have been all over totally. I think it's really a much more serious decision than people have been talking about.

MS. WOODRUFF: But I want to get back to the point, the question that I posed to Ms. Michelman. Women can still get an abortion in this country. And as Prof. Sullivan pointed out, this was an affirmation by the court, even though it was a narrow decision, that government ultimately -- again, it's a five to four decision - - but it was the decision should stay out of people's personal lives.

REP. SCHROEDER: Well, it was that decision, but it was that women could have all sorts of restrictions put on their fundamental rights that we've never allowed put on fundamental rights in the Constitution before. So it's kind of fundamental rights with a paternalistic overlay. But the bottom line is I think at some point many people who are medical providers are going to get tired of having to deal with their patients through this political noise that any state legislature can put between them or through all the political red tape or whatever they want to put around them and they can just say, we don't need this. So it may be a right that you have in principle, but it's going to get harder and harder to ever get it really accepted, because of all the different barriers that were allowed to be put up today that the court would never have gone along with before.

MS. WOODRUFF: Rep. Weber, what's your view of this?

REP. WEBER: Well, first of all, let's begin -- the decision is a bad decision. If you're a conservative, it's bad quite aside from the implications for abortion. The reasoning of the Justices, of the majority basically upheld the kind of judicial legislating that we've been trying to get rid of in abortion and a whole lot of areas for a long, long time. I just want to get that on the record. I can't quite believe the description of a 24-hour waiting period as gutting Roe versus Wade. The fact is that this allows only the transmittal of a little bit of information basically to women. And that's what the states are going to be allowed to do. They're going to be allowed to require that women begiven some information, maybe a waiting period, a few things like that. But the court has basically said today there can't be any serious impediments to the right of a woman to go in and get an abortion. I don't like that and I don't think that's the right decision.

MS. WOODRUFF: What about that, Congresswoman Schroeder?

REP. SCHROEDER: Well, again, I would disagree very seriously in that I think it is a very serious impediment. Let's take it in shift of voting. Voting is supposedly a fundamental right. If you said when you went to the polls, the state government or the federal government had a right to have something that the person at the poll had to read to you and notify you of about what would happen if you voted for X, Y, or Z, then you were still not able to make the decision, you had to go home and wait another 24 hours and then come back again, that would never hold up. We've knocked out poll taxes. We've knocked out all sorts of restrictions on free speech, which is also considered a fundamental right. And here women can have all sorts of fundamental rights on that.

REP. WEBER: We have a lot more restrictions on voting than we have on abortion. We have residency requirements. You have to be a certain age. You have to register well in advance of the election. There's lots of restrictions on voting.

REP. SCHROEDER: But is the assumption is --

REP. WEBER: Any woman in this country can --

REP. SCHROEDER: -- that you're an adult.

REP. WEBER: -- walk into any abortion clinic in the country and get an abortion any time she wants to. There's no restriction on it at all.

REP. SCHROEDER: No, that's not true. What we have is again --

REP. WEBER: Under what circumstances --

REP. SCHROEDER: -- the viability --

REP. WEBER: -- would you be denied an abortion under today's law?

REP. SCHROEDER: Under today's law?

REP. WEBER: Yes.

REP. SCHROEDER: Under today's law you could put so many restrictions in effect --

REP. WEBER: Like what?

REP. SCHROEDER: Well, you could proceed right down that, that lawyers and doctors say we're not going to do this anymore. How many doctors want --

REP. WEBER: I haven't really heard that restriction yet.

REP. SCHROEDER: -- the state to come around. No, I'm serious.

REP. WEBER: There really aren't any.

REP. SCHROEDER: Well, the state --

REP. WEBER: The 24-hour waiting period, is that too onerous?

REP. SCHROEDER: But you don't let me answer the question. You just keep going. Okay. Can we do the answer? No. 1, if I am a doctor, I don't like interference. I'm surprised --

REP. WEBER: I'm sure.

REP. SCHROEDER: -- a conservative such as you is saying this is great, the --

REP. WEBER: This is neither a business matter --

REP. SCHROEDER: -- state can write the little message that he has to give or she has to give, and then furthermore, not only that, the state has the right to go back and monitor doctors and make sure they really gave it and see the name of the patient and make sure the patient got the lecture and did they or did they not come back. That is really breaking into the whole personal relationship between doctor and patient.

MS. WOODRUFF: Let me stop you --

REP. SCHROEDER: I can see many doctors saying, no, we won't do it.

MS. WOODRUFF: Susan Smith, you're shaking your head about that.

MS. SMITH: Well, I don't think Rep. Schroeder understands the Pennsylvania law, because the Pennsylvania law merely requires what is required of doctors about to proceed with any other kind of surgical procedure, and that is to say that the doctor must tell her the risks associated with abortion, he must tell her the risks associated with child birth, and he must tell her the probable gestational age of her fetus. Beyond that, all the doctor has to do is offer her -- and she can choose whether or not to take it - - offer her a pamphlet that has additional information. How this can be characterized as paternalistic is beyond me. In fact, it seems to me that anyone who considers themselves pro-woman would be totally in favor of something like this because it gives women additional information. And I think it is completely disingenuous to say that you're pro woman but against giving women additional information to make what is often a life changing decision and certainly an irreversible decision.

REP. SCHROEDER: Susan, there is nothing ever, ever beyond that that says then you still have to go home because you're not adult enough to process that information, you're not adult enough to do that, you must go home and wait 24 hours and come back.

MS. SMITH: According to your scenario, she doesn't get the information.

REP. SCHROEDER: And furthermore -- no, I'm not saying that. I'm talking about --

REP. WEBER: This is truly amazing.

REP. SCHROEDER: -- this paternalistic tent. And secondly, there is nothing in the decision today to say that the court wouldn't uphold anything that the legislature wanted the doctor to say before the person went home. It could be way beyond the medical thing. It could be ethical things. It could be whatever they wanted. There's no direction that that would stop. And this would be from the moment of conception on. So I think this is very -- plus the policing of the doctors to make sure they did it, we don't do that in --

REP. WEBER: This is amazing. You know, if somebody goes in and takes out a loan or buys a car or a house, we're anxious to require that there be a waiting period, a cooling off period because they might have made that decision in the heat of the moment. But when it's a life and death decision involving abortion, oh, we can't possibly require even a 24-hour waiting period. It seems to me that it's a basic fundamental and important decision. The state has an interest in making sure that to the maximum extent possible it's made with maximum information. That's all we're saying.

MS. WOODRUFF: I want to get to this legislation. Congresswoman Schroeder, what exactly would the legislation say that you say is going to come out of committee tomorrow?

REP. SCHROEDER: The freedom of choice bill says what we feel Roe v. Wade has said for at least 18 years. And that was the very clear distinction between pre-viability and post-viability of the fetus, that up until the fetus is viable and we leave that definition to medicine, because it could be changing, up until the fetus is viable, it is a woman's right, it's a private right, and this country's big enough for more than one opinion on it. So women can deal with that, with their doctor, with their religion, with their family, however, and the state doesn't interfere, doesn't present lectures or anything else. Post-viability, then the state clearly has to balance the two interests, the right of the mother and the fetus. And so, therefore, at that point, there are restrictions permitted by the state that can be put upon except they can't put upon restrictions dealing with the health or the life of the mother.

MS. WOODRUFF: And Congressman Weber, what happens, assuming -- well, first of all, what do you think the prospects are for the legislation?

REP. WEBER: I, first of all, I welcome a debate on the Freedom of Choice Act, because finally we're going to be able to debate not some vague philosophical concept but real circumstances, do you support the availability of abortion unrestricted in the last three months of pregnancy, do you support it for birth control reasons and other things. We should be forced to debate it and vote on it. And then you find that most of the American people are opposed to most of the abortions that take place in this country. What's going to happen? Something is going to pass that is going to be probably reasonably close to what Pat Schroeder just described, unfortunately, although not by a big margin, and the President will veto it and then we can take some of these issues like parental notification and a 24-hour waiting period to the public and say this is really what the issue is all about in this fall -- is President Bush wrong because he thinks you should have to wait 24 hours before you have an abortion? I think he'll win that debate.

MS. WOODRUFF: And what happens, Kate Michelman, assuming that becomes -- which a lot of people assume it will be -- an issue in the campaign?

MS. MICHELMAN: It is going to be an issue. President Bush wants to see Roe versus Wade overturned. He even supports the constitutional amendment that would outlaw abortions nationwide. Voters are going to vote on this issue in numbers they have never voted on the issue before in the Presidential election. Remember, we've had Webster since 1988. We've had the gag rule since 1988. We now have Clarence Thomas on the court, who voted today to overrule Roe versus Wade, a Bush appointment. We now have the Casey decision, which I agree with Congresswoman Schroeder, is really a serious blow to women. And I wish we'd stop minimizing the impact of those obstacles on the women who live in North Dakota who have to drive for a day to get to an abortion provider and then have to add on 24 hours. It's an obstacle they can't overcome. This issue will be an electoral issue. Voters are going to override George Bush. Even though we don't have the votes to override him, his veto of the Freedom of Choice Act, voters will override him in the polls in November 1992. We'll have a pro-choice President.

MS. WOODRUFF: How big an issue do you think it will be for voters, Susan Smith?

MS. SMITH: Oh, well, it's clearly going to be an issue.

MS. WOODRUFF: Because there's a debate about it. Some people say it's not going to be that big of a --

MS. SMITH: You have one, President Bush, who's the strong pro- life President, and two other candidates, Ross Perot and Bill Clinton, who are strongly pro-abortion, so the choice is clear. I want to clarify something about the Freedom of Choice Act. And that is that as far as the court went today in reaffirming the constitutional right to have an abortion, even in the later stages of pregnancy, the Freedom of Choice Act would go even farther, because the court today did allow a 24-hour waiting period, informed consent. And the Freedom of Choice Act would invalidate the Pennsylvania provisions and countless other state laws which require parental consent, which require women be given the facts about abortion.

REP. SCHROEDER: I don't think that's quite true. It says the states would have rights after the viability of the fetus that would invalidate the Pennsylvania decision vis-a-vis the early part of the abortion.

MS. SMITH: And in the fourth, fifth, and sixth of pregnancies, it would not allow states to prohibit abortions.

REP. SCHROEDER: Well, it determines the non-viability, and I think that's what's important.

MS. WOODRUFF: We're going to have to leave it at that. I want to thank you all for being with us. Thank you. Good night. RECAP

MR. MacNeil: Once again, the other main stories of this Monday, strong aftershocks jolted Southern California, following yesterday's earthquakes, but there were not reported injuries. The United Nations Security Council ordered additional peacekeeping troops to the Bosnian capital of Sarajevo. A battalion of Canadian U.N. forces will immediately be deployed at the Sarajevo airport to help ensure relief flights into the beleaguered city. Good night, Judy.

MS. WOODRUFF: Good night, Robin. That's our NewsHour for tonight. We'll be back tomorrow night. I'm Judy Woodruff. Thank you and good night.