The MacNeil/Lehrer NewsHour

MR. MacNeil: Good evening. Leading the news this Monday, the Supreme Court said states may restrict a woman's right to abortion. The court did not reverse the 1973 decision making abortion legal. Abortion foes claimed a victory. The pro choice camp said it was a war on women. Jim.

MR. LEHRER: We will devote all of the Newshour tonight to the abortion decision. Nina Totenberg of National Public Radio will explain what each of the Justices ruled and said. Then comes legal reaction from former Attorney General Edwin Meese and constitutional law expert Laurence Tribe, the medical view from Doctors Allan Rosenfield and Matthew Bulfin, the activists' position from Faye Wattleton of Planned Parenthood and Susan Smith of the National Right to Life Committee and some political reaction from Representatives Henry Hyde and Pat Schroeder.FOCUS - ABORTION

MR. MacNeil: A splintered Supreme Court today ruled that abortion was still legal but states may make it more difficult to obtain. By a 5 to 4 decision, the court upheld most of a Missouri law making abortions illegal if the fetus could survive outside the womb and banning the use of tax money to recommend or perform abortions not necessary to save a woman's life. The majority decision by Chief Justice William Rehnquist was accompanied by individual reservations and challenged by an angry dissenting opinion written by Justice Harry Blackmun. He said, "For today at least, the law of abortion remains undisturbed, but the signs are evident and very ominous and a chill wind blows. The long awaited decision produced strong and emotional reactions to the court from activists on both sides. Demonstrators waved signs and attempted to drown each other out with their pro and anti-abortion slogans. And those representing organized groups had these reactions.

FAYE WATTLETON, Planned Parenthood: We can say today that the Justices on the one hand upheld and held that Roe V. Wade should be constitutional protection, but other Justices in their opinion said that these are political matters, not constitutional ones. When did it become a political matter as to whether Americans will have personal privacy? When did it become a political question as to whether women will make the most fundamental decisions about their privacy and about their personal lives? When did it become a political question as to whether poor people will have the same access to their constitutional rights as do affluent women?

SPOKESMAN: The court is inviting the states to resume the role that they had constitutionally for the first 200 years of our nation's history, and that was that this was a power reserved to the states and the people of those states through their elected legislators.

RANDALL TERRY, Operation Rescue: I think the handwriting is on the wall, folks. Roe is going to go down. There's no question about it. And we're going to begin to introduce an avalanche of legislation to protect the children.

MOLLY YARD, National OrganizationFor Women: Whether it's through initiatives in campaigns, every person who stands for election in this country is going to have to answer, are you for the right to control her reproductive life? If you are not, move on over, because we are going to put somebody in your place who respects the right of women to control their reproductive lives and will vote accordingly.

MR. LEHRER: Other reaction to the decision also fell along predictable lines in accordance with previously held positions on abortion. White House Chief of Staff John Sununu said Pres. Bush was pleased with the direction of the decision. Sen. Orrin Hatch, another abortion opponent, said it was a major victory for the pro life cause. Members of Congress on the other side lamented the decision, Congressman Don Edwards of California saying it hurts poor and rural women, not those who are well to do. Judy Woodruff has more on the decision, itself, and how individual Justices voted. Judy.

MS. WOODRUFF: As Robin said earlier, it was not a simple straight up or down vote by the court. There were five separate opinions, several of which had some Justices concurring in part or dissenting in part. Fortunately for us, Nina Totenberg of National Public Radio was at the Supreme Court when the decision was handed down and she's here with us now. Nina, refresh our memory. Explain what the law said about a woman's right to an abortion up until now. What did Roe versus Wade hold?

NINA TOTENBERG, National Public Radio: In 1973, the Supreme Court ruled by a 7 to 2 vote that women have a fundamental right to an abortion, that is, a fundamental right means what it says and it's like the right to vote, a fundamental right. The court said that in the first trimester of a pregnancy, the state had no ability to interfere with a woman's right to choose, in the second trimester the state could interfere with legislation regulating abortion but only to preserve maternal health, and in the third trimester, the state could interfere to protect the fetus, if it so wished, once the fetus was viable, but always keeping in mind maternal health first.

MS. WOODRUFF: All right. And in today's decision, they did not overturn Roe, so what did they say?

MS. TOTENBERG: In today's decision when you put all the opinions together, what you get is a five member court majority that says, in essence, states have far greater power now to regulate abortions and a disagreement as to the reasoning, with four members of the court clearly wanting to reverse Roe versus Wade, and lacking that fifth vote being Justice Sandra Day O'Connor, so far anyway.

MS. WOODRUFF: All right. Let's talk about the specifics of the Missouri case that the court was looking at. There were what, three or so major provisions of the Missouri law that the court was addressing.

MS. TOTENBERG: There were three provisions that the court addressed today directly. The first was the preamble to the Missouri law which defines life as beginning at conception and says that all unborn fetuses have the same rights as all born persons under the Constitution. The court said, five members of the court said this is just a preamble, we don't really have to look at it because the Missouri courts have to interpret it. Once the Missouri courts interpret it, come back to us and we'll tell you whether you meet the criteria that you need to or not. The second part of the law barred all public hospitals and all public employees from participating in any way in any abortion other than to save the life of the mother and the court upheld that provision and said that states have no obligation to provide abortion services for anyone even if they pay. In this case, for example, a woman might have a private physician and she was paying for her abortion and the physician had attending privileges at a public hospital. Well, she couldn't use that public hospital for her abortion even it provided the necessary medical things that are only available at that hospital let's say.

MS. WOODRUFF: And then the third provision had to do with testing the viability --

MS. TOTENBERG: The third provision of the statute said that any fetus 20 weeks or more could not be aborted unless doctors had done a variety of tests to make sure that the fetus was not viable. And the court upheld that provision saying that doctors as long as they used medical care and common medical practice could perform the needed tests.

MS. WOODRUFF: All right. Give us some of the highlights of what the Justices today said.

MS. TOTENBERG: Well, as I said, there were a variety of opinions. Let me read, because I don't want to misquote, Chief Justice Rehnquist speaking on the preamble said, "Roe implies no limitation on a state's authority to favor childbirth over abortion. On the bar to the use of public hospitals, it would leave a woman with the same choices as if the state operated no hospitals at all. Nothing in the Constitution requires the states to enter or remain in the abortion business or entitles private physicians and their patients to have access to public facilities for abortions.". On the viability tests, he wrote for himself only and Justices Kennedy and White, that's three members of the court, "There is no reason why the states' compelling interest in protecting potential human life should not extend throughout pregnancy, rather than coming into existence only at the point of fetal viability. And overall," he said in his opinion for the three Justices, "the suggestion that legislative bodies in a nation where half the population is women will return to regulations reminiscent of the dark ages does scant justice to those who serve in state legislatures and those who elect them.".

MS. WOODRUFF: He was referring there to what Justice Blackmun said in his dissent.

MS. TOTENBERG: In his dissent. That's right. Then we heard separately from Justice Antonin Scalia, who wanted to reverse Roe versus Wade entirely, "We should not be run into a corner before we grudgingly yield up our judgment. Because of the approach adopted today, it appears that the mansion of constitutionalized abortion law must be disassembled door jam by door jam, no matter how wrong it may be.". And then finally in the majority, we heard from Justice Sandra Day O'Connor, who parenthetically was not present in the courtroom today. She said, "There will be time enough to re-examine Roe.". She addressed in her opinion only abortions after viability. And she reiterated her previously expressed view. "A regulation imposed on a lawful abortion is not unconstitutional unless it unduly burdens the right to seek an abortion.".

MS. WOODRUFF: Nina, what's the significance of her taking that position?

MS. TOTENBERG: Well, we don't know exactly what an undue burden is, but we can presume, I think, that an undue burden would be the criminalizing of an abortion procedure pre-viability. I think that's what she means, but we're going to have to wait for more from her. Finally, we heard from the bench today, which is very rare, from Justice Harry Blackmun, the original author of the original Roe decision. And he called Chief Justice --

MS. WOODRUFF: You mean it's rare for the dissent to be read.

MS. TOTENBERG: It's happened only one other time this term. He said that Chief Justice Rehnquist's opinion for the plurality of the court "eviscerates Roe while pretending not to reverse it. The Rehnquist decision," he said, "is filled with winks and nods and knowing glances to those who would do away with Roe explicitly, but turns a stone face to anyone who searches for a meaningful explanation of when a woman may terminate a pregnancy free from the coercive and brooding influence of the state. I fear for the future," said Blackmun. "I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided. I fear for the integrity and public esteem of this court.".

MS. WOODRUFF: That's pretty strong language coming from one of the Justices, isn't it?

MS. TOTENBERG: Well, he feels very strongly about it. This is after all his opinion that he crafted in 1973. It was a landmark opinion, and as he pointed out today, it is the first time that the Supreme Court in its history has seemed to retrench on a fundamental right that it had extended. It's rare enough to overturn a Supreme Court opinion, but this, this seems to be heading in that direction in a new sort of way.

MS. WOODRUFF: Any expression on any of the Justices' faces this morning when this was being, any of these opinions were being read?

MS. TOTENBERG: It was one of those occasions where it seemed very ordinary but the atmosphere was very extraordinary and Justice Blackmun, obviously, was greatly upset by the court's ruling today.

MS. WOODRUFF: Just one other thing, Nina, the Justices and the majority said today that they intend to look this next session into three other cases that deal with abortion. What's the significance of that?

MS. TOTENBERG: Well, the significance of that is that the court has not finished with this subject, that it's going to look further. As I said, there are four members of the court who apparently want to reverse Roe. Justice O'Connor apparently has not committed herself. These cases will determine what path the court is taking and again we'll be facing the question of will Roe versus Wade be outright reversed.

MS. WOODRUFF: Nina Totenberg, thank you.

MS. TOTENBERG: Thank you, Judy.

MS. WOODRUFF: Jim.

MR. LEHRER: Now to the legal implications of the decision and to two people who see it very differently, former Attorney General Edwin Meese under whose tenure the Reagan administration first asked the court to overturn Roe, and Harvard Law Professor Laurence Tribe, who worked on a number of briefs the court received in support of Roe. He joins us from public station WGBH in Boston. Mr. Meese, how would you interpret the court's decision?

EDWIN MEESE, former Attorney General: I think we saw today that the court had a tough time with Roe against Wade, and the whole abortion question, just as many people in this country are having a difficult time with it. And I think what the court tried to do today in a very restrained way was to start to repair some of the damage to constitutional principles that had been inflicted by the original case in 1973 when the original case was decided. I'm talking about principles like social policies being made by legislative bodies, rather than by courts. That was inherent in the Chief Justices' opinion, things like having matters that have traditionally for 183 years been left to the states be returned to the states at least in part, these kinds of principles that are very important, and I think the court recognized a great deal of judicial restraint in what they did today, at the same time tried to set this whole issue in a proper perspective and in a perspective that would restore some authority to the states to carry out their normal responsibilities in regard to protecting human life.

MR. LEHRER: Prof. Tribe, what's your overview reaction to this?

LAURENCE TRIBE, Harvard Law School: [Boston] I guess I don't see it as a terribly restrained decision. I'm inclined to think as Justice Blackmun said in his dissent, and for that matter, as Justice Scalia said in his separate opinion that the plurality of the court is being less than candid with us, that is, it says that the woman's right to decide whether or not to terminate her pregnancy is left in place, but, in fact, if you look at what the court is doing, rather than simply reading the opinions, it's quite plain that the court is giving to every state and local government in this country a fairly detailed road map of how it can proceed if it wants to place serious grave obstacles in the path not only of poor women but even of women who are prepared to pay for the termination of medically complicated pregnancies in public hospitals. In essence, the court allows Roe V. Wade to hang by a thread while it plays cat and mouse with the country and both conservatives and liberals on the court may be distressed by what this means for the court as an institution, because the court isn't really being as candid as it might.

MR. LEHRER: You mean it really didn't make a decision?

PROF. TRIBE: Well, it made a decision of sorts, that is, it decided that states can slam the door of public hospitals even on women who have no other safe place to get an abortion and even if they're willing to pay every cent of the cost. It decided, among other things, that states can impose very complicated requirements of medical testing even in the second trimester before the fetus is viable, as long as when push comes to shove and when the case goes all the way to the Supreme Court, the state's attorney general comes back and says, well, we didn't quite mean it, you don't have to do all of those tests. So the result is, as I think Justice Scalia plainly perceived in his opinion, that every state and local government is invited to challenge the court further, to push further. This is going to be a cottage industry for state and local government and for lawyers and if we believe that women really do have a fundamental right to control their destiny, not to be coerced into remaining pregnant, then this is not the world that we would want to see. And even those who believe that the fetus is a human being can hardly be satisfied to see this thrown into a political melee in which now the only meaningful protection, either for women or for the unborn comes in terms of how far various political groups can push their point of view. This is really a matter of principle, and I'm sorry that it wasn't resolved as a matter of principle.

MR. LEHRER: Do you agree with that, that the court kind of copped out and went the political route on this, Mr. Meese?

MR. MEESE: No, I don't think so. I'm glad to see that Mr. Tribe is enamored with Justice Scalia's ruling or his opinion, which is not usually the case, but because Justice Scalia said we ought to admit that Roe against Wade was wrong and we ought to overturn that decision that was such a radical departure from the traditions of our country in 1973. I think the court is wrestling with this idea. It is the responsibility of the state to protect human life. And this is kind of the counter thrust to the idea of women and control of their reproductive lives and so what they're trying to do in this decision is say we don't want to overthrow at this stage Roe against Wade, but we do want to decide this case and we want to go in a different direction which restores to the state what its elected officials feel is the appropriate means to protect human life.

MR. LEHRER: Yes, go ahead.

PROF. TRIBE: I think it's awfully important to see that it's not just a matter of life versus choice, it's a matter of who decided these issues. I often agree with Justice Scalia in his candor, but I think that he makes a fundamental mistake when he says and I guess that the former Attorney General makes a mistake when he suggests that it's somehow untraditional to leave these choices at a personal level. The fact is that if we allow government, state or local, to begin making these decisions for women, there's no way to tell how in the long run they'll make them. Some local governments are going to make them in a direction that favors life. Others may over time go in the direction that other societies have gone. In China, women are forced to have abortions after a certain number of children.

MR. LEHRER: Does that concern you, Mr. Meese?

PROF. TRIBE: The important point, the important point --

MR. MEESE: That's obviously a specious argument. I don't think this Supreme Court or any Supreme Court would ever uphold a state law that demands an abortion. And it's a matter now of protecting life, not extinguishing life. This is where this is kind of a specious red herring that's being thrown into the argument. And I think it's really important to recognize what Chief Justice Rehnquist said. He said the effect of Roe against Wade and the system that they had evolved for determining these issues on abortion had turned the Supreme Court into kind of a super medical board deciding these issues. And his idea in his majority opinion was let's get this back to the elected people of the states so that they can represent the views of the people. This really is not an issue as I look at it as to whether you favor abortion or whether you oppose abortion. I look at it from the legal standpoint and since 1973, most competent legal scholars have said that the Supreme Court made a big mistake and that they arrogated to themselves a decision that really belongs in the realm of public policy, not constitutional law. And I think the court is trying to extricate themselves from that dilemma.

MR. LEHRER: You don't agree with that, Prof. Tribe?

PROF. TRIBE: I don't in part because for one thing about 900 constitutional lawyers filed a brief in this case saying that they thought that the court really had done the right thing. And for another, I think that far from a red herring, you really can't have it both ways, Mr. Meese. If this is a state's rights issue and if the court really has to get out of the business of deciding about these intensely personal matters of privacy where the Constitution is silent both ways, it's very hard for you to say where the court is going to come to the aid of life, because it seems to me that when states decide to draw the line, either the court is going to have to stand guard, which isn't want you want, you want the court to get out of the business, or the court is going to have to leave the field entirely to the player of politics, and in fact, quite often, states and localities have imposed restrictions on pregnant women, restrictions that were anti-life and anti-birth. I think that the only sound resolution of this is the resolution that de- centralizes it in the most profound way possible and that says that the person whose body is involved, the person who must make the ultimate tragic choice, the woman, is the only one who can ultimately be trusted to decide these things. And as long as we have the court saying that every state, every city, can draw its own lines, we're going to keep the court forever in the business of second guessing these lines and in the end we're going to provide adequate protection to neither.

MR. MEESE: Let me interrupt because I know time is fleeting here and I just have to get across the point it is incorrect, as Mr. Tribe says, that the court is coming down on deciding for life or against life. What they're saying is that ought to be left to the states. And Mr. Tribe has just admitted --

PROF. TRIBE: That's just my point.

MR. MEESE: -- that the Constitution is silent on this subject. That's the whole point that Justice Rehnquist and Justice Scalia and I have been making, and that is that the Constitution is silent on this subject and it was only by the invention of a supposed right in 1973, that the court got off the rails and went entirely onto the wrong track.

MR. LEHRER: Gentlemen, don't go away.

PROF. TRIBE: It's not silent on liberty.

MR. LEHRER: We'll be back. Thank you. Robin.

MR. MacNeil: We turn now to the medical issues at the core of today's court decision and two physicians who disagree on those issues. Dr. Matthew Bulfin is President of the American Association of Pro-Life Obstetricians and Gynecologists, representing 800 physicians across the country. Dr. Bulfin practices in Ft. Lauderdale, California, and he joins us tonight from Miami. Dr. Allan Rosenfield is Dean of the School of Public Health at Columbia University. He's a Professor of Obstetrics, Gynecology, and Public Health. Dr. Rosenfield, does this ruling make good sense medically?

DR. ALLAN ROSENFIELD, Columbia University: It makes no sense medically. Again, this is, as I think Prof. Tribe has suggested, this has to be a woman's decision. There are no medical grounds for the decision that was made. We know historically that women will have abortions no matter what the legality. What we're talking about is will women have safe abortions. They will have abortions. This ruling will mean that poor women will be subjected to unsafe abortions, and we'll see a return to what we saw in the pre Roe V. Wade era, of women having botched abortions, women tragically brought into hospitals throughout our country where they will not have access, at least in those states where they no longer have access, if this Missouri law is spread by the states, as I suspect it will be.

MR. MacNeil: Dr. Bulfin, in Miami, are you hearing this all right?

DR. BULFIN: Yes. I am.

MR. MacNeil: Did you hear Dr. Rosenfield say this decision makes no sense medically? What do you think?

DR. MATTHEW BULFIN, Pro-Life Association: [Miami] Yes. And I can't disagree with Dr. Rosenfield more. As a practicing obstetrician and gynecologist in Ft. Lauderdale, I believe we should try to get a little practical on this issue. This week in our office my partner diagnosed a set of twins and the mother was just seven to eight weeks pregnant. Everyone in the office saw these two little babies with their hearts beating. I think that when technology of ultrasound brings human life so vividly and so dramatically that the mother can see it, she's naturally going to make much much different type decisions. The technology of ultrasound is going to make many many changes in abortion decision making. I think that what we should stress more rather than abortion is the issue of birth control. The mothers across the country look upon the life within their uterus when they see it and when it's demonstrated to them so realistically on ultrasound they wonder how anyone could possibly destroy a life like this. When it's thought that there are probably as many as a million abortions a year done in women who for one reason or another did not avail themselves of birth control, I would like to make a plea to motivate all of these women to be much more diligent in their use of birth control. And it's conceivable quite reasonably and realistically that we could eliminate almost a million abortions a year.

MR. MacNeil: Well, let me go back to Dr. Rosenfield, what do you think of the burden that would be placed on the medical profession if a number of states copy Missouri, or a law something like Missouri's, forced to use viability as grounds for denying an abortion, in other words, make tests that determine whether a fetus is viable? Dr. Rosenfield first.

DR. ROSENFIELD: We know very well that the earliest size of a fetus that will be viable is about 500 grams, which is about a 25 week pregnancy. There is no way that a smaller fetus will survive, because the lungs simply cannot expand before that time, so the idea that at 20 weeks we must subject a woman to tests that are unnecessary and in some case unsafe is inappropriate. It will add nothing to the decision. Only about well under .1 percent or about .1 percent of all abortions take place beyond 20 weeks. The vast majority of abortions take place in the first trimester, well before we'd be using the ultrasound that Dr. Bulfin thinks is a great innovation in this movement. Birth control, I support his stressing the importance of birth control. Many people in the anti- abortion movement do not agree with that. Many people in the anti- abortion movement would like to do away with birth control as well. Unfortunately, our current birth control methods are not fail proof. We have failures. We have failures with every method, no matter which one it is. And those women are many of the women who will come for an abortion procedure. We must also say, looking at Dr. Bulfin, I think he is old enough to have been around in the pre Roe V. Wade era, and all of us who were trained in that era or practiced in that era saw tragic women brought into our gyn wards suffering from a botched abortion. They will have abortions. Throughout the world today and the developing world where abortion is illegal in many countries, there are estimated by the World Health Organization to be between one hundred and two hundred thousand deaths from illegal abortion. In a hospital in Kenya, Nairobi General Hospital, as many as forty to fifty women every day are admitted to the gynecologic wards of that country's, of that hospital for complications of an illegal abortion. Is that what you'd like to see, Dr. Bulfin, in this country?

MR. MacNeil: Dr. Bulfin.

DR. BULFIN: We're speaking of different situations. I was at Cooke County Hospital. I've trained at Chicago Langen Hospital, I've trained in a large program in Chicago, and before abortion was legalized, we used to see one or two victims of illegal abortion in our practice. The fact now that abortion mortality has been so decreased, the patient who would opt for abortion now and who manages to have an abortion, even though she had one that was less than well done, she would wind up in an emergency room where she would be given the benefit of antibiotics, blood replacement. Women just do not die of abortions now whether they're done legally or illegally.

MR. MacNeil: What do you think, Dr. Bulfin, of a state which the court upheld its right to do, of prohibiting the use of tax money to counsel, recommend or perform abortions on women in public hospitals or by public employees?

DR. BULFIN: This has been a problem that's been debated for years. This isn't anything new, and all of us in the pro-life movement are certainly unalterably opposed to the funding of abortions in public hospitals for indigent women. Again, if they would devote all of their resources to educating women on the use of the rhythm method, the calendar method, and with the 48 different types of birth control pills and the twenty or thirty different types of barrier methods of contraception, I can't see how we should keep focusing on a woman's right to abortion when if she'd devote her thinking and her diligence more to using good birth control, there'd be much much less need for abortion.

MR. MacNeil: What do you say to the forbidding public health, public money to be used in this matter?

DR. ROSENFIELD: I think it's a tragic step that condemns poor women to having to seek abortion through other source, other means. Many of them will be unsafe. I must comment that the reason abortion morbidity and mortality has decreased since 1970 is because of the legalization of abortion. Before the legalization even with antibiotics, we saw on all of our services, and I'm sure you saw it at Cooke County Hospital, many women admitted in the very late stages of a septic abortion, and some of those women died. We have all seen women who died in that era. And I don't, for one, want to see that era return. I must also mention that --

MR. MacNeil: Just a moment, Dr. Bulfin.

DR. ROSENFIELD: -- many of the people in the anti-abortion movement do not support the broad range of contraception or contraceptive methods that you have suggested, they suggest only natural family planning or the rhythm method, with a failure rate estimated somewhere between 18 and 22 percent. If that's what the movement would like to see, with that range of failures, and those women seeking an abortion, and if they happen to be poor and with rules, such as we're seeing in the Wexler case, implemented in other states, poor women and eventually other women will suffer the tragic consequences. I think it is absolutely clear that the end result of this will be an absolute politicization of this issue. We will now be seeing single issue politics with the pro choice movement, as well as the right to life movement as it has been in the past, singling out our representatives at state, local and federal level on how they're going to vote. And I think we're going to hear from the women of America over this decision in ways that no one can predict, except it's going to be loud and clear they will not accept the decision that was heard today in my opinion.

MR. MacNeil: Dr. Bulfin, a final comment?

DR. BULFIN: Yes. I meant to answer the first question you asked me about fetal viability and the need for restrictions. As probably Dr. Rosenfield realizes, there is an average of one baby a day born alive in the United States as the result of a miscalculated abortion. And this has certainly been publicized by no less an authority than Dr. Kates, who is the charge of abortion surveillance with the Center For Disease Control, so I and Dr. Rosenfield disagree considerably on the issue of viability. I know that there have been babies that have survived weighing 490 grams. I know that there have been babies that have survived at 21 and 22 weeks. So 25 weeks is a late period at which to start --

MR. MacNeil: Okay. Well, let's leave the medical argument there and we'll move on. We'll come back. Jim.

MR. LEHRER: Right. Next the views of the activists from opposite sides. Faye Wattleton is President of the Planned Parenthood Federation of America, one of the organizations that challenged the Missouri abortion law. Susan Smith is Associate Legislative Director of the National Right to Life Committee, which helped draft the Missouri law. Ms. Wattleton, it's a serious setback for your preservation, I assume.

FAYE WATTLETON, Planned Parenthood: Clearly, the court's decision today is a serious setback in preserving the constitutional protections that were set forth in Roe V. Wade, but it by no means is the end and in many ways it is an era that is just starting in which the abortion issue will now become as an earlier Speaker has said a cottage industry in which we will debate these issues for many years to come.

MR. LEHRER: Now from your perspective, Ms. Smith, a big deal, right, a big victory?

SUSAN SMITH, National Right To Life Committee: It's a tremendous victory. What the court did today was make a U-Turn from the past 16 years of reaffirming and expanding this right to abortion. What they did today was to return aspects of abortion to the democratic process where it had been prior to 1973. We're hopeful that eventually there will be an entire restoration of the abortion issue and the question of whether or not to protect unborn children back to the democratic process.

MR. LEHRER: All right. Let's talk about that with both of you. What happens next from your, from the right to life movement? What are you going to do in the morning to make this decision today even broader or better or bigger than it is already?

MS. SMITH: Well, we're going to continue to do what we've done for 16 years, that is, educate the American public about the reality of abortion, that this isn't just a woman's issue, or a woman's decision, that every woman who goes in for an abortion -- for every woman who goes in for an abortion, there's an unborn child involved, an unborn child that's torn limb from limb and killed.

MR. LEHRER: But as a practical matter, what are you going to do as far as the legislatures around the country is concerned, because the court as turned this back, as Mr. Meese said, it's turned it back now to the legislatures and whatever, what are you going to do to make sure that the legislatures of the country do what you want done?

MS. SMITH: Well, we're going to be active in all 50 states and we're going to look at what kinds of protective legislation that we can pass, protective legislation that will try to curb the incredible number of abortions that occur annually, so we're going to do everything that we can.

MR. LEHRER: So you're going to take the Missouri decision and try to get that enacted as quickly as possible in many states as possible.

MS. SMITH: Well, we're going to try to go as far as we can in every state that we can.

MR. LEHRER: How many states? Is there a target number that legislature's in session fairly soon, or where you think the sentiment is there and ripe for quick picking?

MS. SMITH: Well, we're not writing off any state. Prior to '73, every state restricted abortion to some degree, 37 restricted abortion altogether except to save the life of the mother. We're certainly encouraged by that and we hope that at some point in the very near future we'llbe able to return the abortion issue to the democratic process.

MR. LEHRER: Now, Ms. Wattleton, from your perspective, is this going to be war in all 50 states from the other side's point of view?

FAYE WATTLETON, Planned Parenthood: I think it does portend a very long and difficult struggle. I think it is also important to make one very important point, that today's decision did not make abortion illegal, that abortion continues to be legally protected by the Constitution. What has been left open is how far can states go in restricting access to abortion? And by the way, the preamble in the Missouri law opens the question of whether states can, in fact, intervene in the interruption of a pregnancy from the moment of conception until delivery, in which case we have to wonder whether certain forms of birth control must now be called into question. So that this opens a long and difficult period, instead of having the issue settled as the majority of American people would like to see it, we now see a very new battle in this area, in which the American people have repeatedly said that regardless of our conflicts about abortion regardless of our differences of opinion, the question is whether who makes the decision and the government should not make the decision. And a woman's life should not be up to the vagaries of the democratic process any more than free speech or our other fundamental rights are a matter of state legislative decisions.

MR. LEHRER: Are you concerned then that if it does go the legislatures of the 50 states that you'll lose it?

MS. WATTLETON: I think it will be very difficult in fighting these issues on a state by state basis. Certainly state legislatures are very vulnerable to the political whims of the various interest groups as we have talked about earlier. I am confident that we will prevail but clearly, fighting these issues on a state by a state basis that women should find themselves in. These are issues of fundamental personal privacy. It is really obscene for us to discuss our personal lives in the legislative and the political arena. Women should be left to decide these matters for themselves and that the state government should remain out of it and government should not make the decision and women should not be forced into involuntary servitude against their desires through forced pregnancy.

MS. SMITH: I'd like to break in there, because once again we are not simply talking about one person involved in every abortion. What Ms. Wattleton and other pro abortion groups do not recognize or do not acknowledge is that there is another human being, a developing human baby, lost in every single abortion.

MS. WATTLETON: That simply is just not true.

MS. SMITH: And the vast majority of Americans are opposed to abortion being used as a method of birth control, and yet, 50 percent of all women who go in for abortions admit that neither they nor their partner are not using any form of birth control.

MS. WATTLETON: That simply is not true.

MS. SMITH: And 40 percent -- excuse me, Ms. Wattleton, I'd like to finish my point -- and 40 percent of all abortions are done on women who are having their second and third and fourth abortion. Abortion has increased at an insane rate and it's very clear that Americans would like to restrict it to very difficult circumstances which account for a fraction of all abortions.

MR. LEHRER: Ms. Wattleton.

MS. WATTLETON: I think that it is fair for me to answer Ms. Smith's allegations that Planned Parenthood does not consider the issues of the fetus. We recognize that there are wide variances of opinion. Even the Right To Life Committee recognizes that when a woman is on her deathbed, that she should then be eligible for an abortion. We believe that there are other reasons that people feel are perfectly legitimate for a woman to terminate a pregnancy and that should be left to the individual to decide. Ms. Smith's value system has no right to be imposed through the force of law on all of the women of this country. Yes, we should work for better sex education. Her organization takes no position on contraception. Why not work for better policies that expand better birth control? Women do want to avoid unintended pregnancy. I have yet to see a woman who would like to have an abortion. But what have they done to prevent the need for abortion? And the answer is not to make abortion illegal and dangerous, but to work to reduce unintended pregnancies and to remain a society in which women can obtain legal and safe abortion.

MR. LEHRER: What is your movement's position on contraception and birth control?

MS. SMITH: We take, as Ms. Wattleton points, out we take no position on birth control.

MR. LEHRER: Why not?

MS. SMITH: Because we're engaged in a fundamental battle to stop the killing of life once it's begun. We have an extremely diverse membership and our membership takes differing positions on a wide variety of issues. We have liberals and conservatives, men and women, but we all come together on this single grave issue that faces Americans. And the fact of the matter is although Ms. Wattleton says that she acknowledges interest in the fetus, her organization opposes even very minimal restrictions on abortions. And the Supreme Court imposed its morality on the entire country, when they took this right out of the people's hands.

MR. LEHRER: Thank you all. Robin.

MR. MacNeil: Now for some national political implications, we move on to two members of Congress who have long fought on opposite sides of the abortion issue and who both signed opposing friends of the court briefs in this case. Pat Schroeder, Democrat of Colorado, is Co-Chairwoman of the Congressional Caucus for Women's Issues. Republican Henry Hyde of Illinois is the author of an amendment passed by Congress every year since 1976 that prohibits Medicaid funding of abortions. He joins us from Chicago. Congresswoman Schroeder, what are the national political consequences of this decision. Miss Smith has just said this returns aspects of abortion to the democratic process.

REP. PAT SCHROEDER, [D] Colorado: I hope this decision is a wake-up call for Americans who've been on sabbatical. They really didn't think that they had to go out and fight for this right, that it was guaranteed. And after all, this was America and we don't go backward on rights. Well, we just did. I think Blackmun talking about the winks and nods saying, come on in, we'll change it is very serious. Now what are the political implications? I think a lot of people are going to get much more involved in the political process. You see the difference is pre today the court was saying, look, this is an individual right. Post today they're saying that states can change individual rights any way they want to and they're probably going to uphold it. Now we don't do that. Here we are the eve of the 4th of July, we don't do that in the United States, and yet it's just been done by the slash and burn court that's been busy tearing up all sorts of other rights. So I guess we shouldn't be too surprised about this. But I think people are going to get angry. I hope they get their wake-up call, have a cup of coffee, show up, and get in the process, because it's a very very serious march backward, and we are going the opposite way of every other industrialized nation.

MR. MacNeil: How do you see it, Congressman Hyde?

REP. HENRY HYDE, [R] Illinois: [Chicago] Well, I think there will be a lot of political activity. What the court has done is return to the states their jurisdiction over an issue which had been federalized by the court back in 1973. They have decided, as Ed Meese said earlier, that this is a matter of very sensitive public policy and it shouldn't be adjudicated, it should be legislated. What amuses me is the fact that the pro abortion forces assert that the majority of the American people are with them, they're in the main stream and those of us that oppose abortion are kind of marginal cultural lags, and yet they're terrorized to a person, they're terrorized at submitting this question to state legislatures, which are the closest to the people of elected officials. I think if they had confidence that most people are on their side, they'd be happy that the state legislatures are going to deal with it and if I may, I just want to say one thing about privacy and who makes the decision, to answer Faye Wattleton. The killing of an innocent human being ought never to be a private matter. The legislatures and Congress ought to protect the weak from the strong. Of course, you deny the humanity of the unborn, but I assert it. And the unborn is an innocent human life and the killing of that person ought not to be done with the shades drawn in some abortion clinic without the legislature having a chance to say, no, you don't, that's an innocent human life, and life is precious in this country.

MR. MacNeil: Congresswoman Schroeder.

REP. SCHROEDER: Let me respond to that.

MR. MacNeil: Yeah.

REP. SCHROEDER: If I might. I think, first of all, look, if we had a government and if state governments were out there actively working very hard to try and make family planning safe, available, something that everybody could get their hands on and trust -- and I notice they keep only talking about women, there's family planning for men too -- if they were doing that, then I think these arguments would have much more credibility. But when we hear these arguments on one side and yet on the other side, they're not really trying to do anything about safe, effective family planning, and our government's way behind in the research on that area, I don't think those areas stand up.

MR. MacNeil: Let me ask you both. Excuse me interrupting, let me ask you both, former Attorney General Meese referred to it, we've heard Susan Smith talk about returning it to the democratic process, if this is to go back to the legislative area, are you, Congresswoman Schroeder, as a pro choice Congresswoman, concerned that Roe V. Wade may be overturned this fall, are you going to go back to the federal legislature to try to do something about it?

REP. SCHROEDER: Well, I'm all for doing that and I think what we will be doing on the Judiciary Committee is meeting and trying to put together a statute as we did before when we had to do civil rights reconstruction after the court met. This time we'll put together a statute dealing with reconstruction of all the rights the Supreme Court tore up this time and this will be a very very important component. In the interim, I'm also going to introduce legislation moving this country forward and saying we'd better put federal and state funding and all kinds of funding into family planning and we ought to get out front on this and we also ought to be teaching family planning overseas; because of the forces that have been in charge of this government, we only teach the rhythm system overseas in places like Bangladesh. We look silly.

MR. MacNeil: Congressman Hyde, do you think it should be left only in states now, or would you be in favor of taking this up in the House?

REP. HENRY HYDE, [R] Illinois: [Chicago] Well, I'm disappointed because Roe V. Wade still stands despite the lamentations of Pat and her pro abortion people. I think the unborn is still at risk and that becomes a matter for legislation. I think an amendment to the Constitution is still a very good idea as long as a woman can legally exterminate her innocent unborn child. So there is a role for the federal government, but the states are now brought back to where they were in 1973 to legislate on these sensitive issues of public policy and protect the rights not only of the woman but of the unborn child.

REP. SCHROEDER: I find it amazing that it should be state and federal policy that absolutely every child should be born, whether they have AIDS, no matter what condition they're in, whether they're wanted, what condition their parents are in. I find that an amazing, amazing statement, that that right overturns all individual rights of both the man and the woman, the family, their religion, and everyone else making this very difficult decision, that that's only one right and that's going to be determined by the Supreme Court, by your state government, by Congressmen and Senators, and that 's what today was about.

REP. HYDE: But you wipe out the right to life and the right to life, which is fundamental, our nation's birth certificate, the Declaration of Independence, says it's an endowment from our Creator. And it's inalienable. Now I reaffirm that today, that the right to life ought to be as important as whether the poor child is going to be handicapped and unwanted. An awful lot of unwanted people are wanted by somebody else once they know they exist.

MR. MacNeil: Okay. Congressman Hyde and Pat Schroeder, can you hang on a minute?

REP. SCHROEDER: Sure.

MR. MacNeil: Jim.

MR. LEHRER: Mr. Meese, when you were vitally involved in the selection of nominees to the Supreme Court for Pres. Reagan, was this the outcome that you had in mind, I mean, is this an end result of that process?

EDWIN MEESE, Former Attorney General: Well, Mr. Lehrer, on the issue of abortion, the answer is no. We didn't ask any of the prospective candidates for the Supreme Court what their respective views were on abortion. We did ask what their views were on the Constitution. And I think that in the sense that today the court returned to some of the constitutional principles that had been lost in 1973, in that sense perhaps this was a result of picking judges who should be interpreting the Constitution, not making new law based upon their own personal predilections.

MR. LEHRER: Prof. Tribe, what's your view of that, that this is, that we have -- the people say on Ms. Smith's and Congressman Hyde's side, do they have Edwin Meese and Pres. Reagan to thank and the others have them to attack for what happened today?

LAURENCE TRIBE, Harvard Law School: Well, I would rather think about it not in terms of who is to be thanked or attacked. I think we ought to go back to a couple of very simple basics. When Congressman Hyde says that the fetus is a person, I think that he shows one of the fundamental divisions over this issue. All nine Justices failed to go that far. None of themthink, for example, that a woman whose life is at risk or a woman who has been raped has to be forced to have a child. All of them seem to think in varying degrees that there is something about the liberty of a woman that is involved here, and that's important. The Constitution isn't silent on liberty. It says states shall not deprive anyone of liberty without due process of law and there's no way to avoid drawing lines about liberty. I find it amazing that anyone should think even if you do think of the fetus as having rights, as I do, amazing that anyone should think that we can just leave it to the political free for all, what to do to the woman's basic liberty. No one can doubt that she has a liberty interest in deciding whether or not to have a child. And that's why all of these easy solutions either treat the fetus as a person or throw it back in the political arena, ignore the most fundamental human equation here, and that is that the only person in a reasonable position to make the tragic choice of when to take the horrible step of ending a pregnancy is the woman who's most intimately involved.

MR. LEHRER: Let's go back to Congressman Hyde.

PROF. TRIBE: And that's what I think the Constitution means on this issue.

MR. LEHRER: Let's go back to Congressman Hyde on that issue, the issue of liberty and how it relates to the woman.

REP. HYDE: I'm all for liberty for the woman, that's in the Declaration too and in our Constitution, but nobody has the liberty to kill another innocent human life. And when you're pregnant, you have a child. The question is will you permit that child as nature intends to be born or whether you will exterminate that innocently inconvenient human life. That's the question and it's complicated and rights are in conflict. And that's why it becomes a political question. But trust the people. The state legislatures will reflect the people, as Congress will reflect the people, and I'm satisfied to that extent.

REP. SCHROEDER: Could I just say one thing.

MR. LEHRER: Sure.

REP. SCHROEDER: I mean, the thing that troubles me about Henry's argument is he sees this fetus as having a personality from the moment of conception. I mean, it is a little, there it is, and they never talk about the woman, they never talk about the other things. The difficult part of this is there's two lives and you're doing a balancing act and they're difficult choices. If it was just one life or another life, it's very easy. I think the other thing is there are so many people who really look at this government and say what they're saying is life begins at conception but it ends at birth. The minute you're born then you're to go out and compete. What do you do if you're an AIDS baby? How are we going to provide for all this? You know, they're very tough questions that people don't want to deal with. And I think that the court originally had gone the right way. Of course, abortion was not in the Constitution. Those words weren't known then. But we all know that the Constitution was supposed to be a broad general document and it was supposed to set down rights, and one of the most important rights was the rights of individual freedom and religion, and I am really surprised at so many people celebrating this backward march so it's taken away 200 years later.

MR. LEHRER: Ms. Smith. I want to give Ms. Smith an opportunity to respond.

MS. SMITH: The problem is that you're exactly right. There are two lives involved, the baby and the mother. And the problem is that in 1973, the court threw all the rights to the woman. And the unborn child has no rights whatsoever. And --

REP. SCHROEDER: That's not true. You have the trimester and then the --

MS. SMITH: In practical effect, abortion is legal up to the point of birth, because even after viability, the court said that states can't regulate it if it affects negatively on the woman's health, and they included health to mean psychological and familial factors. So in practical effect, the court has struck down all meaningful --

MR. LEHRER: Let me go back to Ed Meese and to two members of Congress on one basic question. The court has said and you've agreed, Mr. Meese, this should go back to the political process. My experience in doing things like we have done here tonight, I don't know how many programs we've done on abortion in the 14 years we've been on the air, and everybody comes with a fixed position, and it's always based on things other than politics, it's based on religion, it's based on all kinds of questions. You don't really have a debate in a normal political sense, do you? Isn't it almost a religious debate in some ways?

MR. MEESE: Oh, I think you have a debate in a very real political sense, the return to the democratic process. I think what we have seen here --

MR. LEHRER: You understand my point though.

MR. MEESE: I understand.

MR. LEHRER: The people sit down to debate and they don't -- they just debate their positions and they go off and still hold their position.

MR. MEESE: But you see, that was before the Supreme Court in its judicial usurpation of the democratic process took the issue away from it. Now I think people are going to have to get back to comments like Congressman Hyde. We're now talking about lives, lives and being. We're talking about very fundamental issues. I've only talked about the constitutional legal aspects for it. I have not really expressed an opinion one way or the other for it on abortion. But I think people are going to get before legislatures. I think the state legislatures are the place where these fundamental issues of life and the two respective people that are involved have to be decided on the basis of the values of our American people, and that's the way I think this is ultimately going to come out in the future.

MR. LEHRER: Ms. Wattleton, quickly, do you think that could be a healthy real debate?

MS. WATTLETON: I think that it will certainly be a debate. Whether it's healthy or not remains to be seen, but I think that today's decision should disturb those people who want to see abortion illegal, because it calls into question whether states may, in fact, proscribe the delivery of babies against one's will and whether a person might be forced, in fact, to have an abortion. These policies can go both ways. I think that that is a matter of public policy that the government should not answer and that women should not be the instruments of the state in doing so.

MR. LEHRER: We have to leave it there. Thank you all, all of you, very much. NEWS SUMMARY

MR. MacNeil: Finally tonight, other news stories in brief, the Supreme Court in a landmark right-to-die case said it would hear a plea from parents who want to disconnect feeding tubes that have kept their comatose daughter alive since a traffic accident in 1983. The Missouri State Supreme Court has barred them from removing the tubes to let her die. RELIGIOUS DISPLAYS

MR. MacNeil: The court also ruled on what government-sponsored religious displays do not violate the constitutional separation of church and state. By 5 to 4, the Justices said a Christmas nativity scene inside a Pittsburgh courthouse was unconstitutional because it appeared to endorse Christian principles, but a Chanukah menorah did not, because it included a Christmas tree and a sign saluting liberty, indicating an overall secular purpose. GROMYKO

MR. MacNeil: The Soviet Union today announced the death of veteran statesman Andrei Gromyko at the age of 79. Pres. Mikhail Gorbachev told the Supreme Soviet Legislature that Gromyko had died after surgery for a vascular problem. Gromyko, the tough negotiator whose stony face often seemed to personify the cold war, joined the Soviet foreign ministry under Stalin and was made foreign minister by Nakita Kruschev. He held the post until Gorbachev made him briefly president before forcing his retirement. The foreign ministry spokesman, Genardi Gerasimov, said of Gromyko, "He was part of our history with all of its good sides and all its bad sides.". His funeral will be on Wednesday, but without Gorbachev, who is leaving for France tomorrow. Good night, Jim.

MR. LEHRER: Good night, Robin. We'll see you tomorrow night. I'm Jim Lehrer. Thank you and good night.