Row over abortion ruling

In 1954, it was a little eight-year-old black girl whose father didn't like her having to cross a railway line and take a bus to go to school over a mile away from her home, when there was a school for whites just round the corner.

In 1976, it was a 24-year-old Brooklyn mother, a poor woman with three children who found herself pregnant again and learned that the government money to help her have an abortion was no longer available.

The case of the eight-year-old black girl was the spark that fired the black revolution of our day when the Supreme Court ruled that maintaining separate schools for blacks and whites violated the Constitution's guarantee in the 14th clause of the Bill of Rights that all citizens of the United States, colour unspecified, shall enjoy the equal protection of the laws.

The case of the young Brooklyn mother was not much heard of by most of us until the last day of June this year but it may well become an historic case not just as a legal precedent, but as an issue that could sharply divide public opinion across the country and go a long way towards deciding the presidential election. Let's follow in outline the case of the 24-year-old pregnant Brooklynite to see how this came about.

Nearly four years before this young woman, Mrs Cora McRae, appeared at a planned parenthood clinic to seek an abortion, the United States Supreme Court had ruled, for the first time, that abortion was legal. Up till then, a woman had to go abroad or get the help of an underground doctor or some other illegal practitioner.

Now, where, you may ask, as many Americans did ask, where, in the Constitution, does it say that abortion is or ought to be legal? Well, the Constitution does not talk about a right of privacy. For many decades, a lot of people have been saying that there ought to be a new amendment specifying such a right, but it does say in one place that the people have a right to be secure in their persons and, in another place, that no citizen shall be deprived of life, liberty or property without due process of law.

Anyway, in 1973 the court, in legalising abortion, interpreted these clauses to give a woman a right to privacy which meant in practice that no outsider, no government, no state, no third person, nobody outside a woman and her doctor ought to be allowed to decide whether or not she should abort. Abort what? A living foetus. The court followed the medical view that a conception was not viable, was not on the way to becoming a child, until after three months of pregnancy. Also,that a state could only interfere to protect a woman's health during the second three months and could protect a foetal life only in the last three months.

On the same day the court struck down all restrictions on facilities that can be used to perform abortions. In the next three years, as you might guess, other interested parties – husbands, mothers, fathers – sued to establish their right to have a say in deciding whether a wife or a daughter could have an abortion. This came up time and again and most obviously in the case of young women who were pregnant but unmarried.

Well, in July of that year 1976, the Supreme Court ruled that neither husbands nor parents had any right of veto over the decision of a pregnant woman, married or unmarried. Now, three months later, Congress passed a law called the Hyde Amendment. It was called an amendment because it was a rider to another bill restricting government payments that poor women might get for having an abortion and, in that same month, September 1976, Mrs Cora McRae of Brooklyn went to a clinic and routinely asked for the usual government allowance for the abortion she wanted. She suffered from varicose veins and had had blood clots and she plainly had fears for her own health and the health of her unborn baby.

The people at the clinic told her that she could not have a government grant because of the new law pending in Congress. She filed a lawsuit. Almost, at once, a federal judge ruled that the new law, the Hyde Amendment, was unconstitutional and he told the federal government it could not enforce it. So, in October, Mrs McRae had her abortion and the government paid for it.

But, by now, women in other states grew alarmed at what they guessed would be a new trend growing out of the Hyde Amendment. They saw a trend to cutting back government health in other forms of welfare. The right to have an abortion, not to have it, to be paid for it, not to be paid for it, became a national issue and politicians of all stripes had to worry over it and take a stand. The Supreme Court found itself having to say whether the states, as distinct from the federal government, were obliged to pay for abortions and, if so, for what kinds, mainly whether they ought to pay only for abortions that would save the mother's life.

Well, Mrs McRae had started something. Her federal suit was still on the docket. Next year, the Supreme Court didn't exactly overrule the judge who'd said that the Hyde Amendment was unconstitutional, it set aside his ruling and told him to restudy it in the light of the court's previous decisions. So the judge brought the case back to his court, heard from dozens of witnesses and started to wade through, literally, thousands of pages of testimony. He spent 13 months with his nose to the testimony, at the end of which time, in January of this year, he had digested all the testimony, weighed the Supreme Court's rulings and distilled a new decision into – so help us – 622 pages.

The gist of it, if I may be allowed to use such a coarse word, was that the new law of Congress, the Hyde Amendment, was still unconstitutional. Now let me rush to your aid at this point and remind you what the Hyde Amendment was all about. It said that the federal government had no obligation to pay money for abortions, the states could do it if they chose. So, for a poor woman, it was very much a matter of luck whether she lived in a state that did pay abortion money or didn't.

In the meantime, the Supreme Court had been delicately backing and filling on the questions of how old a foetus must be to be viable, to be capable of maintaining itself as a living organism? Also, the conditions under which a parent might have the right to consent to an abortion of an unmarried girl. For the time being, the court also said that the decision of the wordy federal judge would stand and the government would have to go ahead and pay for abortions. It would take the McRae case up later with another relevant one and it would rule once for all, if there's ever a once-for-all in a legal decision, on whether the Hyde Amendment was, or was not, constitutional.

Well, finally, finally, on 30 June, the Supreme Court ruled that the Hyde Amendment was constitutional. It went a little further. It ruled that neither the federal government, nor the individual states had any legal obligation to pay for even medically necessary abortions. That was a drastic decision and has fired up the two rival crusades that divide women and politicians around the country, namely the people who feel that abortion should be not only a legal right, but something that the government and the states should make available to all women asking for it and the opposing group that wants abortion illegalised, except when there is a positive threat to the mother's live, the so-called Right to Life people.

Well, the case of Cora McRae is almost certainly not going to rest there. For one thing, we ought to notice that the Supreme Court's decision was handed down by a majority of five to four and that's always an unsatisfactory balance. It amounts to a decision not by, as they used to say the nine old men, but by the conviction or whim or transient judgement of one man. He wakes up in the morning, thinks things over and decides to go this way or that and the effect changes or disturbs the lives of millions of American women.

Just how testy, how dicey, the final ruling was may be gathered from the arguments of the majority of five and the opposing arguments of the minority of four. The majority opinion said although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those obstacles not of its own creation and, again, that the government, while protecting the freedom of the individual, is not compelled to provide funds such as may be necessary to realise all the advantages of that freedom. In a word, the majority said a pregnant woman is free to go and get an abortion in some state that pays for it.

The minority was blunter, to the point of outrage. Justice Blackman said, 'There is condescension in the court's holding that she may go elsewhere for her abortion. The government punitively impresses upon a needy minority its own concepts of what is socially desirable. There truly is another world out there, the existence of which the court, I suspect, either chooses to ignore or fears to recognise.'

In a word, the minority accused the winning five of saying a poor woman has exactly the right of a rich woman to pay for her abortion.

I've dwelt on this because you're going to hear some hot, not to say flaming, words at both the Republican and Democratic conventions not simply about the right to an abortion, but about the equal rights of women. There is a constitutional amendment brewing to lay down such rights – the ERA – the Equal Rights Amendment.

This amendment to the Constitution has been a viable foetus in the body politic for about 40 years. For 40 years, both political parties have been protesting their allegiance at least to the principle of it and the Democrats, this week, in the rules committee that will propose policy to its convention next month, the Democrats, sensing the trend of the times, proposed that from now on half the delegates at future conventions must be women.

The Republicans, whose convention starts on Monday 14 have flatly rejected the proposed equal rights constitutional amendment. The Republicans long, as don't we all, for the good old American family, of mother at home, father at work and happy children.

However, only one American family in five is such a traditional family and, in this as in several other issues, between the longing and the fact lies the ground on which the presidential election will be fought out.

This transcript was typed from a recording of the original BBC broadcast (© BBC) and not copied from an original script. Because of the risk of mishearing, the BBC cannot vouch for its complete accuracy.

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