ABORTION DECISIONS
June 28, 2000

The U.S. Supreme Court rules against a Nebraska "partial birth" abortion ban and upholds a Colorado statute making it illegal to obstruct a person's entry or exit from an abortion clinic. Two experts discuss the decision.

April 25, 2000: A summary of partial-birth arguments before the high court. Dec. 31, 1998: Abortion doctor killings. Jan. 22, 1997: An Anniversary of Roe V. Wade. Sept. 19, 1996: The FDA approves RU486 Browse the NewsHour's coverage of health and law   Supreme Court Reproductive Rights Network Life Advocate Web site	GWEN IFILL: Two abortion cases were decided today. First, the Justices struck down a Nebraska law banning what the state calls partial birth abortion. And the court upheld a Colorado law that had made it a crime for protesters to knowingly obstruct a person's entry or exit from an abortion clinic. Now the impact of today's decisions. Janet Benshoof is the president of the Center for Reproductive Law and policy. Vincent McCarthy is the senior regional counsel for the American Center for Law and Justice. But first, this caution: Justice Stephen Breyer, writing for the majority today, said, "our discussion may seem clinically cold or callous to some, perhaps horrifying to others." That same warning applies here. Janet Benshoof, how significant a victory is this for you today? JANET BENSHOOF, Center for Reproductive Law & Policy: It's a very significant victory but a very fragile victory. It's very significant because the Supreme Court recognized that we have been subjected to an assault on the right to choose itself, and that's what is at stake here. It's very significant because it said that the health of American women is more important than a political agenda. GWEN IFILL: I apologize for mispronouncing your name, first of all. Vincent McCarthy, does this deal a serious blow to anti-abortion forces?
	A serious blow to anti-abortion forces?
	VINCENT McCARTHY, American Center for Law & Justice: Well, I think it makes it more difficult to try to persuade women not to have abortions because what the Hill case actually ruled is that peaceful protest on public sidewalks can be prohibited by state legislators. GWEN IFILL: And? VINCENT McCARTHY: Well, making it more difficult to peacefully persuade people not to have abortions on the one hand and then on the other hand legitimizing what two Justices called a gruesome and horrible procedure I think makes it a lot more difficult and exacerbates actually the turmoil and the tension in this matter. GWEN IFILL: Let's take these procedures one at a time. The court drew a distinction between two different kinds of abortion procedures: One, dilation and evacuation, which is used more routinely, more commonly in abortion and the other one, dilation and extraction, which is what is known as partial birth abortion in which the fetus is partially removed from the womb and then destroyed. So you're saying that the... the Court is saying that this definition was the problem, that the Nebraska law was written too broadly. VINCENT McCARTHY: What the court is saying is that partial birth abortion is defined by Nebraska could also include the taking of a human life or what they call fetal demise known as dilation and extraction. In partial birth abortion, the baby is taken through the vagina and just the head is kept inside. The head is pierced with scissors and the brain is sucked out. What the court said is that's really no different from dismembering the baby inside the mother's womb and then taking the pieces out bit by bit, arm by arm or as Justice Scalia said today finger by finger. Justice O'Connor in a concurring opinion said partial birth abortion is no less gruesome than dilation and extraction. If we're going to protect that method of taking human life, then we're going to have to also protect partial birth abortion. GWEN IFILL: Janet Benshoof, what is the distinction in your opinion that the Court was trying to draw between D&E and D&X? JANET BENSHOOF: Well, I don't think the court was trying to draw any distinction. What the majority of the Supreme Court said today is that these are... Laws are a direct assault on Roe and that they imperil the health of women, that it's not about late abortion, it's not about one procedure. Justice O'Connor, who joined with the majority, said you can't distinguish and pull out one procedure from the other. In fact, Justice Breyer even referred to the D&E procedure as an intact D&E instead of any other name. What this is all about is not about method; it's about preserving the health of women and a stealth attack on liberty. GWEN IFILL: Justice O'Connor also raised the question about whether the Nebraska law should have included some sort of provision for the life and health of the mother. JANET BENSHOOF: Well, all the members of the majority opinion said that no law can be constitutional when it applies to pre-viability abortions, which this does, and does not include an exception for the health of women. So she was very clear on that as was the rest of the majority -- as were the rest of the majority. So I think today's opinion is very significant in that women's health has been made more important than a political agenda. But what's fragile about today's opinion is that Roe itself hangs in a thread in this country by one vote. What was before the court was the essence of Roe v. Wade, and the Court upheld Roe by a 5-4 vote.
	Has Roe v. Wade been weakened?
	GWEN IFILL: How about that? Has Roe been suddenly weakened here or is it eventually strengthened? There are 29 other states which have laws like this. VINCENT McCARTHY: I think eventually Roe will be overturned. I think what happened today is that the mask came off, the idea that abortion somehow isn't the taking of human life. That was conceded by everyone today. That's the only way really that this decision could come out the way that it did because the argument was made that since dilation and extraction actually does the same thing, this must be covered within the protection for that procedure. What has to happen is statutes have to be drawn more particularly to define post delivery procedures that are going to be protected by the law. 30 states in the United States believed that partial birth abortion was very close to infanticide. I think that these legislatures are going to come back again and try to define it more clearly to make it clear that this is an out-of-the-womb abortion and can never cover the abortions within the womb. GWEN IFILL: Ms. Benshoof, when is partial birth abortion as the state of Nebraska calls it ever medically necessary? JANET BENSHOOF: First of all, as the Court recognized today, there's no one method that can be termed a partial birth abortion. This was a stealth attack on the right to choose. What all the Justices said was that methods evolve and doctors -- all the majority opinion said was that doctors have to be protected to choose the most medically appropriate method for women. And they have to be able to choose the safest methods for women. In fact, the United States Supreme Court found that one method, the D&X method, which Nebraska was alleging that was all this was about, they found that that one method was the safest method for some women and that women have a liberty interest to protect their health by choosing the safest method. GWEN IFILL: At what point does-- or does it-- a liberty interest in protecting a mother's health collide with the liberty interest of the unborn child? JANET BENSHOOF: Under Roe versus Wade and as affirmed by today's opinion, throughout pregnancy a woman has to be valued more than fetal life and even post viability, there have to be exceptions for a woman's life or health. So women's liberty to make important medical choices over their life and health was affirmed today but only by one vote. So the stakes on women's liberty have been raised very high, and the political atmosphere for the 21st century has certainly been set by today's sharply divided opinion. GWEN IFILL: The court, Mr. McCarthy, said that the state of Nebraska had placed an undue burden on a mother or on a woman seeking an abortion by instituting this law. Do you agree with that? Was that an undue burden? VINCENT McCARTHY: I don't believe that they did. I believe that the way they defined the law distinguishes it from other abortion procedures. I think it's unfortunate that the Court believed that it was similar to other abortion procedures, but abortion is on a collision course with the truth. The truth was exposed in this case that all abortion takes human life, and you had several Justices talking about how gruesome and horrible all this was. Justice Kennedy, I think, said it best. He said some day we will look back on this decision with great horror.
	Limiting protesters
	GWEN IFILL: In this second case, this was more about free speech, Janet Benshoof and privacy. In this case, the Justices ruled in favor of the idea of privacy, that someone ought to be able to walk unhindered into an abortion clinic. Did that surprise you? JANET BENSHOOF: No. I think the Court or the Justices on the Court that have very sharp ideological differences on abortion have ruled differently on issues involving the First Amendment and clinic access. So I'm not surprised. I think there's a law-and-order issue here. There's a right to receive health services issue here. And the United States Supreme Court has always accepted time, place and manner restrictions on First Amendment. issues. I think certainly the Court also might have been affected by the fact that we've seen many violent acts, including death threats and actual deaths of providers and their assistants in the abortion area. GWEN IFILL: Are abortion protesters a threat to people who try to seek abortions? JANET BENSHOOF: Not all abortion protesters. GWEN IFILL: Mr. McCarthy. Excuse me. VINCENT McCARTHY: Yes, as Justice Kennedy noted and Justice Scalia, peaceful protesters-- and it was conceded by Justice Stevens in his majority opinion that the protesters here were peaceful -- can serve a valuable purpose in continuing the debate on the moral issues of abortion on public sidewalks which is the place most really, in which this debate can really take place. It's unfortunate that the court ruled the way that it did particularly three years after its decision in Shank, which upheld such peaceful counseling. The decision today is going to force people back further and force them to use amplification which I think exacerbates the problem. GWEN IFILL: Both decisions today, Mr. McCarthy, were a setback for your cause. What do you think that means for the future of people who are anti-abortion, anti-abortion movement? VINCENT McCARTHY: Well, people that are anti-abortion or pro-life will keep fighting because they're fighting for the dignity of human life. They're fighting for their brothers and sisters. So, they will keep that fight up no matter what. They're not going to be discouraged. You have to look at this in terms of the long haul. Slavery existed for almost 200 years in this republic. It may take some time but eventually we will begin to respect all human life, no matter how small and how young and how vulnerable. GWEN IFILL: And Janet Benshoof, the one thing we know for sure is this issue never goes away. What is the next test? JANET BENSHOOF: Well, the Court has said today that they respect women's life choices and liberty under the Constitution but the stakes have been raised by the fact that it's a 5-4 decision. So I don't think the anti-choice people are going to go away. I think that we're going to see increased fervor because they certainly have been edging. This has been the most successful campaign yet against the right to choose. This was a stealth campaign. Mr. McCarthy mentioned 30 states, and he's right. This has the most successful campaign yet. Most Americans were completely bamboozled by partial birth abortion thinking, that it was about late abortion and thinking it was about one method. So this was a stealth campaign on the right to choose and it should be a wake-up call to Americans to know that their constitutional rights are hanging by a one-person thread. GWEN IFILL: Janet Benshoof, Vincent McCarthy, thank you both very much.

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