ROBERT SIEGEL, host:

This is ALL THINGS CONSIDERED from NPR News. I'm Robert Siegel.

MICHELE NORRIS, host:

And I'm Michele Norris.

Next week the confirmation hearings of Judge Samuel Alito will begin. As in nearly every Supreme Court confirmation hearing of recent decades, what the nominee might say or do about abortion will be one of the chief issues. With that in mind, we thought we would take a step back to consider this hot-button social issue of our times and where it stands today in the courts and American society. That's the subject for this half-hour.

SIEGEL: It's worth noting that it didn't all start in the courtroom. State legislatures passed anti-abortion laws in the late 19th century, and they started liberalizing them a hundred years later. In 1967, California Governor Ronald Reagan signed a law that made abortion legal for California residents under certain circumstances. Those included danger to the physical or mental health of a pregnant woman, not just danger to her life.

In 1970, New York state took up a bill championed by then Republican Governor Nelson Rockefeller, and that bill extended that right to women from out of state, who came to New York. It barely passed the state Assembly. As he recalled years later, Democratic Assemblyman George Michaels, urged by his children to vote yes and by his local party to vote no, cast the critical vote.

Assemblyman GEORGE MICHAELS (Democrat, New York): All of us were keeping a tally as we were going along, and it was all over the floor that it was going to end in a tie.

SIEGEL: Had it ended in a tie, the speaker of the Assembly...

Assemblyman MICHAELS: I broke the tie.

SIEGEL: You broke the tie?

Assemblyman MICHAELS: I knew that I was ending my political career.

SIEGEL: As the roll call went on, were you hoping there'd be enough votes in favor?

Assemblyman MICHAELS: Oh, I was--they tell me I was jumping around like a (unintelligible). They say I was in and out of my seat. I was like a crazy man.

SIEGEL: Hoping that there'd be enough votes in favor that you could vote against?

Assemblyman MICHAELS: Oh, I was trying to persuade somebody to change. It wound up with me.

SIEGEL: Some other states followed the example of New York and California, but that process was superceded by a Texas case that went to the Supreme Court. In the 1960s, the court had overturned a Connecticut ban on contraceptives in the case Griswold vs. Connecticut. In that decision the court had said that there is a right to privacy implicit in the Constitution. In 1972, Texas lawyer Sarah Weddington argued that that meant an unmarried Texas woman had the right to terminate her pregnancy, even though her life was not at stake.

Ms. SARAH WEDDINGTON (Lawyer): There is a great body of cases decided in the past by this court in the areas of marriage, sex, contraception and procreation, childbearing and education of children which says that there are certain things that are so much a part of the individual concerns that they should be left to the determination of the individual.

SIEGEL: The Texas woman Weddington represented was referred to by the pseudonym Jane Roe, and in 1973 the Supreme Court ruled in Roe's favor. In the first trimester, the decision to have an abortion is up to a woman and her doctor. After that, the state can regulate abortion. And ever since, some states have been testing the limits to regulation.

Chief Justice WILLIAM REHNQUIST: (From 1989) We'll hear argument now in number 88-605, William L. Webster vs. Reproductive Health Services. General Webster...

SIEGEL: In 1989, Chief Justice William Rehnquist called for argument in the case of Webster vs. Reproductive Health Services. It concerned a Missouri law that barred the use of state property for abortion or abortion counseling. Charles Freed, the solicitor general, argued the position of the Reagan administration.

(Soundbite of 1989 trial)

Mr. CHARLES FREED (Solicitor General): Today the United States asks this court to reconsider and overrule its decision in Roe v. Wade. We are not asking the court to unravel the fabric of unenumerated and privacy rights. Rather we are asking the court to pull this one thread.

SIEGEL: The court did not strike down Roe, but it did uphold Missouri's ban on the use of public funds, and, among other things, it allowed Missouri's requirement that doctors test for fetal viability before performing abortions.

Then three years later, in the case Planned Parenthood vs. Casey, the court considered restrictions that Pennsylvania had approved. They included a 24-hour waiting period, a requirement that doctors give women information about alternatives to abortion, that the parents of a minor be notified and that a woman's husband be notified. Justice Sandra Day O'Connor questioned Pennsylvania Attorney General Ernest Preate about the spousal notification part of the law.

(Soundbite of 1992 trial)

Justice SANDRA DAY O'CONNOR: Now the provision does not require notification to a father who is not the husband, I take it.

Mr. ERNEST PREATE (Pennsylvania Attorney General): That's correct (unintelligible).

Justice O'CONNOR: ...or notice if the woman is unmarried.

Mr. PREATE: It only applies to married women.

Justice O'CONNOR: So what's the interest? To try to preserve the marriage?

Mr. PREATE: There are several interests: the interest, of course, of protecting the life of the unborn child.

Justice O'CONNOR: Well, then why not require notice to all fathers? It's a curious sort of a provision, isn't it?

SIEGEL: The spousal notification restriction was the only one that was not upheld in the Casey decision of 1992.

So after all these years of legalization and litigation, how common is abortion? Stanley Henshaw keeps count at the Alan Guttmacher Institute. That's a pro-choice think tank, but his numbers are cited by pro-life groups as well. Henshaw gathers data from abortion providers all around the country. His numbers are higher than those of the Centers for Disease Control, which takes its information from state Health Departments. Henshaw says his count includes abortions that providers may not be reporting to the states.

Mr. STANLEY HENSHAW (Alan Guttmacher Institute): There are now about 1.3 million abortions a year now. The ratio is about 23 abortions for every hundred pregnancies, which includes abortions and live births. So it would be something like 23 percent of pregnancies end in abortion.

SIEGEL: And of those 1.3 million abortions, overwhelmingly, about 80 percent, in the first trimester of pregnancy.

Mr. HENSHAW: That's right. It's closer to 90 percent.

SIEGEL: Overwhelmingly unmarried rather than married women having those abortions.

Mr. HENSHAW: Yes.

SIEGEL: And the trend over the past 20 years?

Mr. HENSHAW: The trend has been down in the abortion rate, especially since 1990. The reason for that has been teen-agers. Teen-agers are having fewer unintended pregnancies and fewer abortions over that period of time.

SIEGEL: When you look at the demographics of women who are having abortions and for whom the rate of abortion or the ratio of abortions is higher or lower, what stands out to you?

Mr. HENSHAW: Well, low-income women and minority women have many more abortions. It's interesting that in the black community, there tends to be more opposition to abortion, but the actual abortion rate--that is, the number of abortions per thousand women--is three to four times that of non-Hispanic white women. Hispanic women also have elevated abortion rates somewhere between the black women and non-Hispanic white women.

SIEGEL: And poverty--you find an indicator there of the rate of abortion, as well as belonging to a minority group in that case.

Mr. HENSHAW: That's right. Low-income women have maybe three times the abortion rate of higher-income women.

SIEGEL: Now some would say the period of decline in the number and the rate also comes after the Supreme Court permits some tightening of access or some restriction of the Roe v. Wade level of access to abortion. What do you think about that?

Mr. HENSHAW: Well, my own judgment from that is that there are a couple of states where the new restrictions have been an impediment to women seeking abortions. But in general the restrictions haven't been that significant. I would say that the restrictions haven't had yet a huge impact, although in some individual cases they make a difference.

SIEGEL: That's Stanley Henshaw of the Alan Guttmacher Institute.

NORRIS: One of the states where the abortion restrictions are the tightest is Mississippi. Since the late 1980s, the state has passed at least a dozen laws increasing the requirements for abortion providers and their patients. NPR's Audie Cornish reports that the lone abortion clinic in the state plans to continue operating even in a restrictive environment.

AUDIE CORNISH reporting:

Every one of the women sitting in this room is planning to have an abortion.

Dr. JOE BOOKER: Good morning, young ladies. How are you guys feeling today?

Unidentified Women: (In unison) Fine.

Dr. BOOKER: My name is Dr. Booker, and this morning we have to give you some information that the state requires us to give you.

CORNISH: Dr. Joseph Booker is working his way through a state-mandated speech with medical and legal information that the women must sign off on before getting an abortion. It's a very different kind of counseling from what the women encountered on their way into the clinic.

Unidentified Man: We're praying for you as you're going into this place. Jesus wants to help you this morning. Anything we could do to help, we're going to be here for you. We're praying for you.

CORNISH: Nothing is easy about the road to the doors of the Jackson Women's Health Organization. For safety reasons, just two of the five doctors that work there live in state. A maze of state laws lay before the Mississippi woman who wants an abortion. If a woman doesn't have health insurance, the state bans the use of Medicaid to pay for the 3 to $400 procedure. If she's under the age of 18, she'll have to get the permission of both her parents; that's if she has a doctor willing to discuss the option. State law allows medical providers of almost any kind to refuse to discuss abortion or contraception if it's against their religious beliefs. And if she travels long distances to get to the state's only abortion clinic, she'll still have to wait 24 hours before having the procedure.

Betty Thompson, a consultant to the clinic, says women call with all kinds of concerns.

Ms. BETTY THOMPSON (Clinic Consultant): I have to get somebody to get my children ready to go to school, or I have to hire an extra sitter when I was staying home with my child 'cause I can't bring the child; get somebody to drive me; then I've got to pay them. Then that may--I may have to look far and few between for somebody who's willing to come over here and fight through this maze outside to get me inside or to drop me off or to have their tag numbers taken down.

CORNISH: Twenty-seven-year-old Cedric Armstead(ph) said he was willing to do all that and more for his girlfriend, a divorced mother of three from Yazoo, Mississippi, but that for most people he knows, it would be too difficult.

Mr. CEDRIC ARMSTEAD: People always tend to say stuff is happening for a reason, so if all these bumps keep coming in the road, then you probably think, `Well, maybe it's meant for me to have it.'

CORNISH: He says his girlfriend made the decision to get an abortion, but they would not have been able to drive to another state for the procedure, like so many women in Mississippi now do.

Mr. ARMSTEAD: If you're pregnant in Mississippi, unwanted or whatever, you're going to have to, you know, accept it.

CORNISH: And that's more or less the point, says Terri Herring. She's the legislative lobbyist and president of the group Pro-Life Mississippi.

Ms. TERRI HERRING (President, Pro-Life Mississippi): The incremental strategy is do as much as you can every year to raise the bar a little higher and make it a little harder to kill an unborn child in this nation.

CORNISH: Since Herring started her job in the late '80s, Mississippi has passed more than a dozen restrictive abortion laws. She's visiting the Legislature over the holidays to get a jump start on the legislative session.

Ms. HERRING: Hi. How are you? Good. Is Amy in?

CORNISH: And she's more than welcome in the Capitol, where there seems to be no legislator who will publicly identify as pro-choice and where top lawmakers, such as Lieutenant Governor Amy Tuck, says the state's abortion restrictions have been a great success.

Lieutenant Governor AMY TUCK (Republican, Mississippi): You will be asked, as a candidate, `Are you pro-life? Do you believe in protecting the unborn?' And I believe a lot of people in the state of Mississippi base their decisions on making sure that their elected officials, that their public servants have that opinion and feel strongly about it.

CORNISH: And Tuck should know. During her last campaign, she was goaded by her Democratic opponent into signing an affidavit claiming that she was not only pro-life but had never had an abortion. Lobbyist Terri Herring says Mississippi was pro-life before the Supreme Court's Roe v. Wade decision and that her group's done all they can to chip away at that ruling.

Ms. HERRING: And I'm telling you that we have killed over 40 million babies, basically tearing them from limb to limb. And now what we're looking at is we're going to dismantle Roe limb from limb.

CORNISH: And so each year the Jackson Women's Health Organization knows there will be new regulations on top of the thick book of rules it already complies with. This year Terri Herring is promoting six new state laws, one of which would require that women seeking an abortion be offered the chance to hear the fetal heartbeat. Audie Cornish, NPR News.

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