Abortion law thunderbolt

In Washington last Sunday afternoon, the 2nd of July, in the shimmering heat, men and women, young and old, in dresses, jeans, shirtsleeves, shorts, T-shirts, some of them carrying sheets and pillows, started to form a line outside the dazzling white marble temple of the United States Supreme Court. Obviously, they'd come to spend the night, and did.

By the red dawn of Monday, the line had grown and broken into barely mingling groups but, as the sun came burning up again, most of them drifted off into two separate little crowds, each flaunting signs and posters that by now are all too familiar. Pictures of bleeding embryos being waved at other people carrying coat-hangers or simply bold declarations, 'Keep abortion legal'. They were the so-called Right-to-Lifers and their bitter opponents, the Pro-Choicers. They chanted and sang against each other but by now there were enough policemen keeping them apart to prevent any trouble. They were all waiting for the lawyers and journalists to come trotting down the steps of the Supreme Court to bring the last word.

Some of the them, the Right-to-Lifers, you could say, have been waiting for 16 years. In 1973 the Supreme Court handed down a ruling in the abortion case of Roe versus Wade which caused great rejoicing among many American women and great indignation among others. Roe versus Wade, whatever happens to it in years to come, will be forever as memorable a judgment as, say, Brown versus Board of Education, 1954, which ruled that the city school board of Topeka, Kansas was wrong in forbidding a black man, Oliver Brown, to let his eight-year-old daughter attend a white school a few blocks away. The judgment of the court declared that from then on the segregation of the races in all public places was unconstitutional. May 1954 was the date that signalled the black revolution of our time.

Similarly, in a judgment that was to affect every American woman of childbearing age, the court in 1973 took up the case of one Jane Roe. It was not her real name for reasons that will be immediately obvious. She said she'd been raped and she challenged a Texas law that prohibited abortions. The Supreme Court upheld her and, furthermore, declared that a woman's right to have an abortion was inherent in the constitutional right to privacy.

Roe versus Wade has been quoted ever since by many Pro-Choicers as allowing abortion under all circumstances. It did not. It said that a woman had an unrestricted right to an abortion during the first three months of pregnancy, that during the second three months, her right was still compelling, but the state had sufficient concern for the mother's health to require that the operation be done in 'approved settings', which meant a legal hospital or clinic. And in the last three months of pregnancy, the state had a controlling interest in the life of the foetus and could prohibit an abortion unless the mother's health was threatened.

So, you can say, that except for that rare contingency, abortion on demand was declared constitutional throughout the United States. And so it has been ever since.

However, over those 16 years, three of the nine justices of the court have gone and three others have been appointed in their place. And these were the appointees of a conservative president, Reagan, and while, in theory, judges are not appointed to the court for their political bias, in practice, in life, all presidents want judges who are sympathetic to their own policies and there's no question about it, the incoming three were more conservative than the ones that would have been appointed, had been appointed, by Democratic presidents.

This doesn't mean that a new judge will always live up to his billing. Only last week, former President Reagan must have been appalled to have two of his appointees tip the majority in favour of ruling that the burning of the flag is a legitimate expression of free speech.

But now, back to Roe versus Wade. Throughout the intervening 16 years, between 1973 and last Monday, the enmity between the people for and against abortion has been mounting into an incessant, almost deafening, public conflict. President Reagan was only the most prominent of the politicians and public people who campaigned to overthrow Roe versus Wade and have abortion, once more, declared illegal.

President Bush has not been far behind. He's against abortion except in cases of rape or incest or when the mother's life is in danger – which, incidentally, seems to be close to the position of most West European governments. I don't think there's a single state which has not mobilised into active and opposing armies of women, committees, societies that proselytise, hold regular protest meetings, marches, demonstrations and, most effectively, get on to local and state and national ballots, candidates who declare themselves at election time to be on one side or the other.

Both sides have worked to try to bring another test case that would make the court reconsider Roe versus Wade and either reaffirm it or overthrow it. Finally, such a case arose in the state of Missouri. A clinic, of course thoroughly reputable, legal abortion clinic, called Reproductive Health Services, challenged a new, a 1986 Missouri law, that drastically restricted a woman's right to abortion. That was the case that eventually came to the United States Supreme Court and Americans have been waiting impatiently all winter and spring for the court's decision.

It was rumoured that it would be handed down the previous Thursday and a great crowd assembled outside the Supreme Court then. Instead there came a raft of other decisions – the flag-burning judgment, the upholding of the right to dial for pornographic telephone messages, among them. It was whispered that the court was so divided over the abortion ruling that it would be put off until the autumn.

However, it dropped on us like a thunderbolt at ten in the morning of Monday, 3 July. The result could hardly have been more disheartening to the pro-abortionists or more welcome to the Right-to-Lifers. 'A great victory,' said the attorney general of Missouri – a line echoed throughout the Right-to-Life movement. The founder of the Missouri clinic called it 'an outrage, a very serious setback for women and families in this country'.

Did the court overturn Roe versus Wade? It did not, on the face of it. It returned the laws controlling abortions to the states, saying it was up to each of the 50 of them from now on to specify their own restrictions but the court, in examining and approving and disapproving separate parts of the Missouri law, in effect, laid down as permissible so many conditions and restrictions and a new, and probably impracticable, medical test as to make Roe versus Wade only the first of one of those great battles that are fought two or three times over on the same ground.

At the moment, you could say that Roe versus Wade is a battle won and lost, but it doesn't settle the conflict any more than the first Battle of the Somme.

What the court's new judgment did was to uphold three provisions of the Missouri law that the Missouri clinic had challenged. One, that public employees may not take part in abortions, except when a pregnant woman's life is in danger. Two, that no abortions may be performed in public buildings, municipal hospitals and the like, even if they are paid for by private funds. And three, that doctors may not begin an abortion unless they have performed tests to determine whether a foetus is viable, can live outside the womb, if they believe a woman asking for an abortion is at least 20 weeks pregnant.

The immediate medical response from doctors on both sides of the debate was to say that at 20 weeks a baby's lungs are too immature to receive sustaining oxygen from the mother and that it's virtually unknown for a baby born before 23 weeks of pregnancy to survive. This provision, alone, is going to cause a medical legal debate of medieval intensity in the states that adopt it.

The rationale for these three main provisions was so thoroughly teased and qualified – only three of the five judges that made up the majority go along with all the reasoning – that it won't be difficult for states that want to ban abortion absolutely to write new laws that will be bound in time to be challenged all the way to the Supreme Court. Three new test cases are already down to be judged in the autumn.

The 16 years between January 1973 and July 1989 are not very long in the history of a fundamental law and its challengers, not long for historians, but those 16 years represent half the childbearing lifetime of a woman and among the younger warriors in this unending battle – most of them who were 12, say, at the time of Roe versus Wade, are now 28 – most of them take a simpler, drastic view of the rights and wrongs of abortion. On the Pro-Choice side, they say a woman has a fundamental right to choose an abortion under almost any circumstances. And on the Right-to-Life side, the most fervent young disciples say outright that a human life begins at conception and so all abortion is murder.

The Missouri statute said the same thing but the court rejected that argument as being a religious doctrine which the constitution rejects, as it rejects any other establishment of religion.

We always think of the court as the ultimate healer of the divisions in the republic, but it was a decision of the Supreme Court that made inevitable the American Civil War. The emasculating of Roe versus Wade at least guarantees, as Othello said, 'that chaos is come again'.

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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