The Missouri Abortion Case - 28 April 1989

Any listener to these talks who’s been in the United States during the past week or two and has now gone home will have no trouble guessing at what this talk is to be about – about two issues that have divided the country in the past few years which have lately generated great heat and which only now have come to the boil.

Of course I’m talking first about the question of whether or not Mr North, the former marine colonel, ran his own underground foreign policy to aid the Nicaraguan rebels at a time when Congress had passed a law against all such military aid.

The other issue erupted the other weekend into a protest march of 300,000 people in Washington, the biggest demonstration anyone could remember. Those were the marches on behalf of a woman’s right to an abortion, a protest matched in many states by equally passionate protesters who deny any such right and argue that abortion is an intolerable form of infanticide.

All the public feeling has been mobilised into one or other of these extreme positions, though the issue as it now comes before the Supreme Court of the United States is a little more – a lot more – complex than that. I want to say at the start that I am not going to talk just now about Colonel North though I expect that by the time this talk reaches some of you the verdict will be in, but as I talk now the jury has been out for five days.

At any rate on a matter so serious and one likely to have a warning effect for a long time to come on the behaviour of presidential advisers it’s too early to rush into a commentary when we don’t know the history of the jury’s deliberations, what factors made them lean this way or that.

I don’t know how it is in your country but in the past 40 years or more in this country there has been no prohibition, the moment a trial is over and the verdict is in, against talking to the jury and reporting the ups and downs of its deliberations. This used to be a procedure which automatically earned for a reporter a citation for contempt of court, but it seems to have vanished.

On the huge burning issue of abortion all the fire of the debate has been stoked since the winter by both sides in anticipation of the case which finally came before the Supreme Court this week for the arguments pro and con.

This case, which comes out of the state of Missouri, is only one of at least five others having to do with abortion which the court will be considering in the next year or perhaps two.

You could say, roughly, that all of them address the question of a woman’s right to abortion but that’s a very rough blanket label. Each of these cases considers abortion under different conditions. At what time of pregnancy? Is it a voluntary pregnancy? Is it case of rape of incest? Cases in which the mother’s health is at risk. Is the abortion to be paid for with federal funds or state funds or city funds, and so on and so forth.

The Missouri case seeks to uphold that state's law restricting the use of public money – federal, state or city – for abortions and forbidding medical counselling of women about abortion. It has been challenged by a Missouri health service as unconstitutional and so it comes before the highest court.

What makes this case so important, so crucial to the battling armies of Pro-hoice and Pro-Life is that if the court supported Missouri it would be, in some measure great or small, going back on what everybody regards as the first great landmark ruling of the court on abortion, the so-called Roe v Wade case when, for the first time, abortion was upheld as a woman’s right and one which could be paid for by public – federal, state, city – funds.

Although the Missouri case came to the court this week the ruling on it is not expected until some time in June. For now I will say that there is one simplicity, one fundamental question, which is common to all the cases that will be brought.

It’s the question of when does life begin, or rather when does a foetus turn into a human being, an organism able to survive outside the womb? In 1973 the court ruled that this became so through the second trimester of pregnancy, as early as the 24th week, but no later than the 28th, so that, agreeing with the main contention of the abortion lobby, it implied that before that time an abortion was not a method of killing a human.

The Pro-Life or right-to-life lobby holds, on the contrary, that life begins at the very moment of conception. One of the most eloquent leaders of the Pro-Life movement refuses to use the word "abortion". She refers to Roe v Wade as a ruling that decriminalised baby killing.

I’m afraid that the popular conflict, the public demonstrations, the interminable television debates, are conducted at these extremes and with so much passion and bad temper on both sides that they never each this central point on which they could agree to differ, namely the question which is very differently answered by different nations, different courts, different religions, the question of does human life begin at conception or later and, if so, how much later.

Certainly in the current Missouri case the court is going to have to address this question, however drastically or gently it modifies the 1973 judgment. So the real time to talk about the case is the time when the court will have overturned, or not overturned, Roe v Wade, or modified it or bypassed it.

For the time being we can only say that on the large, unsubtle question of whether a woman has a right to abortion the country in all the polls and surveys is so deeply split down the middle that whatever the court decides, a victory for one side or the other will only spur the loser on to a fiercer crusade.

By the way, I ought finally to add that if the court upheld Missouri the immediate effect would be to deny federal funds to women seeking an abortion and this would throw the whole question back to the separate states, so that you could have a situation with, say, 29 states prohibiting abortion under certain circumstances or under none or under all, another 10 states allowing it under certain circumstances, five allowing it under all circumstances, and six treading water and waiting for a strong case either way to come before the state courts.

In any event the issue is so aflame, so charged – so over-charged – with emotion that I’m afraid the prospect in the short run through the summer and the fall is we’ll be quoting Othello and saying “Chaos is come again”.

There’s a peculiar, a novel, frustration about the publicising of this court case. So often big inflammable public issues here are seen to burn away in public through the televising of a Senate or a house committee, through the investigations which, since Watergate and through the Iran-Contras scandal, have presented day after day to riveted millions what amounts in form, in suspense, to a public trial.

The public cannot enjoy this involvement in cases before the Supreme Court. All we could do this week was to read the transcript of the arguments presented by the lawyers to the court in Thursday morning’s paper, because the federal courts prohibit radio or television.

So the best we could see on the evening news was quick watercolour sketches of the court and the lawyers done by ten artists who were allowed to join the about 100 reporters covering the hearing.

This prohibition applies to all federal courts. Congress, which prohibited radio, introduced television at first into the House of Representatives and then, only three years ago, into the Senate, and fully into congressional investigation hearings of both houses.

But the Supreme Court’s prohibition which, as I say, applies to all federal courts goes back to the mid-1930s when Bruno Hauptmann was brought to trial for the kidnapping of the Lindbergh baby.

The press and the radio went berserk during that trial and staged a bellowing circus that disgusted the country. The American Bar Association met soon afterwards and put into its code of judicial conduct a ban on radio in the courtroom.

By the 1970s the campaign to allow television into courtrooms was hot and heavy and in 1982 the Bar Association cancelled the prohibition. Accordingly, television stations and their reporters started to invade the state courts and the right to telecast court proceedings came before the Supreme Court on the initiative of a Florida television station. It was allowed. Today 44 of the 50 states allow television.

The effort to intrude into the federal courts has never halted, it still goes on. There is one national television network which broadcasts almost nothing but sessions of the house, the Senate and open committee hearings. It would like to add the United States Supreme Court but five years ago the question came up before a judicial conference which sets policy and the code of conduct to be observed in Federal courts. The conference maintained the old ban.

It feared that the fair administration of justice would be prejudiced by inhibition on the part of the witnesses and histrionics on the part of the lawyers. So it stands, and to this day the proceedings in any federal court can be seen only by the press, so it will be in June or whenever during the summer the Supreme Court hands down its judgment on the Missouri abortion case.

We’ve lately been recording a couple of centenary celebrations – in Hitler’s case, a general lament. There is another 100th anniversary this week which we ought not to let go unnoticed.

One hundred years ago this week the wife of a man in Hartford, Connecticut was taken suddenly and gravely ill. The man, one William Gray, had no telephone. He ran off to the electrical factory he worked in and asked to use the phone. He was not allowed. He did get her to the hospital, in a pretty ragged state. His wife survived, but he had an idea and he came to see it realised.

So let us now praise a not very famous man, Willie Gray, who one hundred years ago precisely invented the public pay telephone.

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