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This is Fresh Air. I'm Terry Gross. It's widely known that presidential candidates Barack Obama and John McCain differ on the question of abortion. Obama is pro-choice. McCain is pro-life. But our guest, journalist Cynthia Gorney, says positions on the issue are often less clear-cut than the commonly used labels imply. Two politicians who both call themselves pro-life might have significant differences on abortion, as do John McCain and his running mate, Sarah Palin.

While the 2008 presidential campaign focuses mostly on other issues, such as the economy, the abortion debate still rages in many states. There are referenda before voters in several states aimed at limiting abortion rights, and lawmakers in South Dakota hope to generate a court challenge which will overturn the landmark Roe v. Wade decision legalizing abortion.

Cynthia Gorney has been writing about the abortion debate for more than a decade. She teaches at the graduate school of journalism at the University of California, Berkeley and is the author of the 1998 book "Articles of Faith: A Frontline History of the Abortion Wars." She spoke to Fresh Air contributor Dave Davies.

DAVE DAVIES: Well, Cynthia Gorney, welcome to Fresh Air. Let's talk about where the two presidential candidates stand on the abortion issue. John McCain, of course, wants folks to think of him as a maverick, and indeed, he has parted ways with his party on some important issues in the past. What's his position and record on abortion?

Professor CYNTHIA GORNEY (Graduate School of Journalism , University of California-Berkeley): It's a complicated question to answer at this moment because, for a long time, McCain was not regarded with particular love by people opposed to abortion, the right-to-life community. He has, in fact, when you look at his voting record, a very strong right-to-life, anti-abortion voting record. I believe 95 percent is the figure generally given in the way that people do these tallies.

But he has never been viewed by the right-to-life community as somebody who really had his heart in the issue. And indeed, the fact that two of his top choices, it was known, for vice president were Tom Ridge and Joe Lieberman, both of whom have expressed support for the right to abortion, was really turning off a large part of his candidacy. And his choice of vice president was very clearly made in very large part because Sarah Palin is a very strong right-to-life advocate. And it worked. So he is now - his ticket, let us say, is now in very strong favor among right-to-life people.

DAVIES: If indeed, as you said, he has a very strong right-to-life voting record, why was it that the right-to-life community did not fully embrace him even before he begin, you know, considering picking people like Joe Lieberman?

Prof. GORNEY: Right. Well, for a long time, the right-to-life community, which, let us remember, the essence of the right-to-life community, the people who have really been dedicated to this cause for a long time, genuinely believe that life begins at conception and that any abortion, regardless of the circumstances of conception, regardless of the period of gestation, is the equivalent to the murder of a child, so they have divided politicians for a long time into those who genuinely saw the issue as they did and those they think of, in their private conversations, as more sort of pragmatic about it. In other words, I need the right-to-life vote, but I don't really care a whole lot about this issue, and, in fact, I kind of wish it would go away.

Many of the politicians who vote right-to-life and who court the right-to-life community, everybody knows fall into that latter category, the I-wish-it-would-go-away category. And I think it's fair to say that McCain was viewed as one of those for a long time. He has always said that his personal position on abortion is that he believes it should be illegal except for cases of rape and incest. We can talk about that in a little bit, but that exception is actually pretty huge from the right-to-life community's perspective. It would, of course, stop most abortions in the United States, but it indicates a real philosophical falling out with the center of the right-to-life position.

DAVIS: Right.

Prof. GORNEY: And the fact that he was seriously considering Ridge and Lieberman as vice presidential candidates was in itself an indication to right-to-lifers that he really was not a strong supporter of the cause.

DAVIES: Right. I mean, the notion that, if life begins at conception, it's OK to terminate a pregnancy caused by rape or incest. I mean, to those who are true believers, I guess that would be the moral equivalent of killing a 10-year-old kid because they were the - they're conceived by a rape or incest.

Prof. GORNEY: Exactly. If you believe what right-to-lifers who are really involved in this thing genuinely believe, then exceptions don't actually make any sense. And if you agree that abortion should be illegal, but you're willing to make exceptions for rape or incest, then you haven't bought into the fundamental premise of right-to-life, which is that it's a human being from the very beginning, and the law ought to treat it just as you say, just as the law would treat the killing of a born child under difficult circumstances. So, the central big fight within the right-to-life community has been over those who think it's OK to court incrementalist approaches to this, and those who think that that is a sellout of the fundamental fight.

The right-to-life community for a long time, people who are the most philosophically committed to it, have likened themselves to abolitionists arguing about slavery during the 19th century. And these fights over whether you can - I mean, let's follow the analogy through - whether you can accept slavery in some of the states as long as you make sure that it stays illegal in the North, are the kinds of things that have caused unbelievable dissension within the right-to-life community and continue to do so to this day.

DAVIES: Now, when John McCain appeared in that interview, with Barack Obama, with the Reverend Rick Warren at the Saddleback Church, he was asked, at what point is a baby entitled to human rights, and his answer was short and simple, at the moment of conception. Was that a turning...

Prof. GORNEY: And that caused a lot of cheering.

DAVIES: Yeah. Was that a turning point for him in his relationship with the right-to-life community?

Prof. GORNEY: I would say it was one turning point. It certainly, I'm sure, caused cheering, sighs of relief, etcetera among people who were listening to that who might have been afraid that he was going to equivocate a little bit in front of that audience. I think the real turning point was selecting Sarah Palin as his selection for vice president. But that certainly was one, and there's a reason that Reverend Warren asked that question the way he did, and there's a reason that McCain had obviously made a decision or been advised by his political advisers to respond as simply and as forcefully as he did - as, I might add, did Barack Obama in front of that audience, which I thought was quite interesting as well.

DAVIES: Although his answer was different.

Prof. GORNEY: Yes, Barack Obama, in front of what he knew to be a very large audience, probably an extremely large national audience of very strong right-to-life people, said I think it's a complex moral issue, said famously and perhaps unfortunately, it's above my pay grade, which might not have been the most felicitous choice of words in that particular moment, but then said, in a very straightforward manner, I believe that this is ultimately - I can't remember his exact wording, but I believe he said, I am pro-choice. I believe in a woman's right to make this decision, something right along those lines. So the two of them in that conversation with the pastor were both quite straightforward about their positions.

DAVIES: John McCain, of course, chose Sarah Palin, the governor of Alaska, as his running mate. You and others have noted that this was greeted warmly by the right-to-life community and many in the Republican Party's conservative base. In a piece for the New York Times magazine, you wrote that abortion opposition at its most coherent is apparently central to Sarah Palin's belief system. Explain what you mean.

Prof. GORNEY: Sarah Palin is what people on both sides for a long time have sort of shorthanded as a true believer in the abortion fight as far as anybody has ever been able to tell. As the governor of Alaska, a state that is famously independent, doesn't like government in its face and generally does not vote right-to-life, she has not been put in the position very often of having to make a statement on this. But when she has been asked about it, everything about her actions and her statements seems to indicate that this is a person who deeply believes the central fundamental right-to-life premise, which is that human life begins at conception and from conception on should be treated like any other human life.

Her personal narrative, of course, as far as we know it, seems to support that view. So she is what everybody thinks of as a true believer, and she has not waffled on that position when she's been pinned down about it on the campaign trail. One of the things that I was suggesting in the little New York Times magazine piece I did is that I sort of wished that the handlers would take the duct tape off her mouth and let her really talk about this because it's pretty clear to me that those people advising Ms. Palin on the trail have said, we would prefer it if you didn't really talk a whole lot about this because it's controversial.

It is in their strongest interest to have right-to-life people understand that she is an absolute supporter of the right-to-life position. It's not actually in their strongest interest to have the extent of her passion about abortion be discussed in a broad - in front of a broad audience because every single poll basically ever taken in the United States since before Roe v. Wade indicates that the majority of Americans don't actually agree with the full right-to-life position.

DAVIES: So, if we try and put this together, you have John McCain, a candidate who has a strong right-to-life voting record but who essentially has articulated a position that he believes in prohibition of abortion except for cases of rape and incest, and he has a running mate who differs on that, believes the more pure right-to-life position, that life begins at conception, and all abortion is wrong. When you put all that together, what should one expect in terms of John McCain's court appointments and the extent to which he would see as a priority reversing the course of the nation on the legality of abortion?

Prof. GORNEY: Well, there are a couple of important ways to think about how a McCain-Palin administration would affect abortion. On court appointments, it's pretty evident from everything that has been said that McCain would look for Supreme Court appointees who would be inclined to overturn Roe v. Wade. Now, there's one big problem there, though, which is that we're probably going to have a Democratic majority Senate, and it doesn't matter who McCain appoints if the Senate won't confirm him.

So the trick there would be to find a nominee for example, like Justice Kennedy, who doesn't have a strong track record one way or the other, could be regarded as a moderate, appears now to be leaning away from his position on supporting Roe v. Wade, but that's a huge argument going on among lawyers who follow this sort of thing closely. So that's the first thing. But there's a whole substrata of administrative positions that are really important to bear in mind that a Vice President Palin, for example, could have a big influence on.

DAVIES: One of the other issues that arises in the abortion debate is whether - to what extent an exception is permissible where the health of the mother is threatened. Where is John McCain on that?

Prof. GORNEY: First of all, we have to talk about the word health, which has had a lot of controversial history over the years since Roe v. Wade was decided. The big problem when you start fighting about health in abortion matters is that, from 1973, the Supreme Court in Roe and in all of its subsequent decisions has defined health in a very loose way to mean psychological health, emotional health, that term actually appears in the two decisions that constituted Roe v. Wade in '73.

So, from the right-to-life perspective, that is such a big loophole that that is the reason that for years their literature has said Roe v. Wade made abortion legal for any reason all the way through the ninth month of pregnancy. Now, there's a lot of argument, obviously, about whether that has happened, in fact. The pro-choice community would say absolutely not.

But what's happening now is, there's a big argument over the definition of health, whether we're talking about physical health or psychological health. And when McCain has used the word health in the last debate, he used it in a somewhat cynical-sounding way to indicate that it's been waved around as a giant excuse by pro-choicers for exceptions to mean anything that you want them to mean.

The general position - the general strong right-to-life position on health has been, OK, we get it that we're probably not going to get any restriction passed unless it includes an exception for health. But we have to define health very narrowly so that it only means severe long-lasting physical health to the mother. There are various kinds of language that appear in different pieces of legislation - severe permanent irreversible damage to body organs, things of that nature. But that's the problem. So McCain has indicated, I believe, that he supports physical health exceptions, but he has made it very clear that he's not willing to support emotional or psychological health exceptions.

DAVIES: We're speaking with Cynthia Gorney. We'll talk more after our break. This is Fresh Air.

(Soundbite of music)

DAVIES: If you're just joining us, our guest is Cynthia Gorney. She's a writer who teaches at the graduate school of journalism at the University of California, Berkeley. She's written widely on the abortion issue and is the author of the book "Articles of Faith: A Frontline History of the Abortion Wars." Let's talk about Barack Obama. What's his position on abortion?

Prof. GORNEY: He has said repeatedly and in a pretty straightforward way, he believes that Roe v. Wade should be upheld. He believes that this is the right of a woman to make the decision in consultation with, as Harry Blackman famously wrote all those years ago in Roe v. Wade, in consultation with her physician and if she wishes, her pastor. He has said that he is pro-choice. I believe he's actually used that phrase, which tends to be one that politicians avoid if they're trying to appeal to the sort of middle on this. And he's also talked about it in what in my view is fairly straightforward moral terms. He's addressed it as a very complex moral issue and one that should require a lot of serious grappling among the American people.

DAVIES: John McCain and other Republicans have accused Obama of, when he was in the Illinois State Senate, of failing to support so-called born alive bills, that is to say bills which would require medical intervention to save a fetus that was extracted alive in the course of an abortion. What's the real story on this?

Prof. GORNEY: Let's remember that I wasn't in Illinois between 2000 and 2003, and there are often a lot of political complications that go along with these things. But here's what I understand about this. There were bills introduced three times in the Illinois legislature that, as you say, would have made an explicit crime for failing to protect a fetus that was born alive.

And what the Obama camp has said - there's no question that he did not support these bills. What the Obama camp has said is that he didn't support them for two reasons - number one, the way that they were worded, they could have been construed to constitute an attack on the abortion right, and second, that they were supposed to be put forward as part of a package that simultaneously protected doctors from either lawsuit or any kind of prosecution for failing to abide by the strict rules of those laws, and that, because they came through without that protection, that was part of the reason he didn't sign them.

Now, there's a version of this legislation that exists in federal law. It was signed by President Bush in 2002. They were passed initially as a kind of, I believe, as a kind of public education tool. One of the things right-to-life has tried to do for a long time is make it clear that we have in our national policy a certain hypocrisy about what that thing inside a woman's uterus is. If it's a certain circumstance, we call it a baby, and we try vigorously to save its life. If it's another circumstance, we call it a fetus, and we make it legal for the woman to have an abortion. This is part of that broad tactic by the right-to-life community.

So the problem from a pro-choice, from a legal abortion perspective with these bills has always been the way they define a fetus born alive. And I've read the Illinois legislation, and I think that's a lot of what was going on as well. The definition of an alive fetus is - this is going to get a little bit graphic, but you have to understand, this is what's going on - includes phrases like, is there a pulsing umbilical cord? Is there a beating heart?

Well, the fact is, there are abortion procedures, particularly after about the 12th week of abortion, that are legal, that are commonly practiced for a variety of reasons in this country, that are, in fact, the safest for the woman, that can produce after the abortion something that has a pulsating umbilical cord or a beating heart and has zero, I mean, zero chance of surviving, either because the procedure has involved dismemberment of the fetus or because the fetus is like 14 weeks old.

A law that requires physicians to go in and make some feint at resuscitation on what comes out in this procedure is on its face, from a pro-choice perspective, absurd. There is already, Obama pointed out at the time, has done so in retrospect, and other people have pointed out, there are already other kinds of legal intervention that you can use on a physician who has just completed an early birth or even a very late abortion producing an intact fetus that's clearly got a chance of living. If that doctor doesn't do something, you have other ways of going legally after that doc.

DAVIES: Both candidates have at times been confronted with their position on the procedure which opponents call partial-birth abortion. Intact dilation and extraction, I guess, is the medical term. Where have McCain and Obama been on this?

Prof. GORNEY: McCain has been unequivocal in his opposition to this procedure, which, of course, has now been outlawed by the very first federal legislation to prohibit a certain kind of abortion by procedure only. Just to review so that people remember, the recent Supreme Court ruling that upheld a ban on this procedure, it was not a ban on late abortions. It was a ban on abortion by a certain method - this method which pulls a fetus out in one piece. So there are a lot of people on both sides who think that this particular ban is nuts for a variety of reasons, even though, clearly, it's been a strong point for the right-to-life movement, and it's been the bane of the pro-choice movement's life.

Obama has made it clear that this procedure is not acceptable except when it's necessary to save a woman's health. Remember, we talked about health, and health, of course, has been a big deal in this. The opponents to this procedure have argued that it's never necessary to save a woman's health. The physicians who think that it is a good thing in certain circumstances have said yes, indeed, it is sometimes necessary, both to protect a woman's physical health and possibly her psychological health. McCain has gone with the pro-life position, saying this thing is never useful for saving a woman's health. So that's where the two candidates have come down.

GROSS: Cynthia Gorney teaches at the graduate school of journalism at the University of California, Berkeley. She spoke with Fresh Air contributor Dave Davies, who is a senior writer with the Philadelphia Daily News. They'll continue the conversation in the second half of the show. I'm Terry Gross, and this is Fresh Air.

This is Fresh Air. I'm Terry Gross. We're talking about how the issue of abortion is figuring into this election. There are referenda in three states aimed at limiting abortion rights. One of them, if passed, could be used to challenge the Roe v. Wade decision that legalized abortion. Our guest, Cynthia Gorney, has been covering the abortion debate for over a decade. She teaches at the graduate school of journalism at the University of California, Berkeley. Let's get back to the interview she recorded with Fresh Air contributor Dave Davies.

DAVIES: A lot of people have a sense that Roe v. Wade acts, in effect, like a national law which legalizes abortion and that, if it were overturned by the Supreme Court, abortion would become illegal across the country. I mean, you've written that, in fact, it's far more complex. What would happen if the Supreme Court were to overturn Wade?

Prof. GORNEY: Officially, all that would happen is that there would no longer be a constitutionally protected right to abortion in this country. The practical effect would be that the decision would be returned to the states, and we would be pretty much where we were in January of 1973, before January 22nd when this decision came down. Every state would be arguing about it. There are, at present, four states that have explicit laws on their books that would be kicked into effect, at least that's the way the laws are written, should Roe be overturned, so that, at least in theory, abortion would be illegal in those states immediately after an overturn of Roe.

Now, there's a ton of unknowns and things to think about in terms of all of this. First of all, we know that a solid third of states in this country, probably a little bit more, certainly the biggest and most populous states, New York and California, would keep abortion legal, and they would probably keep the law just as it is right now. There are about probably somewhere between 15 and 20 states that would probably start right away doing something to move toward illegality.

Now, you have to think about all the different factors there. Is the legislature itself majority right-to-life, and even more important, would it be so if it didn't have the protection of Roe v. Wade out there? In other words, if a legislator casting a right-to-life vote, a vote for an abortion restriction, knew that restriction was actually going to take effect, big difference from where we have - where we are today.

Is the state attorney general someone who believes abortion should be illegal or not? How likely would a new law be to face some kind of litigation right away? You can certainly think of this as a field day for litigators all over the United States because that's what would happen. And the final uncertainty is, there are states that never changed their pre-Roe abortion prohibitions or restrictions. So those laws in some states are still at least theoretically on the books, kind of in suspended animation.

DAVIES: Now, even though Roe remains the law of the land, there's been a lot of activity in state legislatures and state referenda which deal in a variety of ways with the abortion issue. I mean, South Dakota has for years - right-to-life legislators there have been working to get a law passed which they know would fly in the face of Roe and Wade - Roe v. Wade and be a test case for overturning the law. As we look at the ballot in November, what's happening in the states that relates to the abortion issue, and what significance do you see?

Prof. GORNEY: Basically, you got four different things going on around the states, three on the ballot and one that has already passed and is being litigated right now. South Dakota, as you just said, has a new version before its voters of a pretty much flat-out ban on abortion. Two years ago, the South Dakota legislature tried to do this, it was a total ban, life of the mother only. It went up before the voters, because South Dakota law allows that to happen, and they rejected it. They thought it was too severe, and significantly, there were a lot of voters that I talked to in South Dakota, because I did some reporting from there, who didn't really think they wanted South Dakota in the business of challenging Roe v. Wade.

This thing has come back before the South Dakota voters this time, and there is a rape/incest exception written into the new legislation. There's a number of reporting requirements for the rape or incest, it has to go before law enforcement and so on. People I talk to who are familiar with the South Dakota situation at present say it's kind of running a dead heat now. So it's very unclear whether that would pass. There's no question that it is a challenge to Roe v. Wade.

DAVIES: So that's South Dakota. Are there significant...

Prof. GORNEY: Right.

DAVIES: Things happening in other states?

Prof. GORNEY: Yes. The second effort going on, which I don't think is going to get anywhere - certainly not this year - is, there are a series of what are called personhood initiatives floating around. These are short constitutional initiatives that don't actually use the word abortion at all but define a human being as a person from the time of conception for purposes of due process and with regard to anything in the state. The only one of these that has actually made it to the ballot is in Colorado. Most people think it will not succeed.

The third arm, if you will, of the ballot thing going on here is California for the fourth time, I believe, is going to vote in November on a parental notification statute. Now, these things have been passed in more than half the states around the country. This thing is running very close in California at this point, so there's no clear indication of whether it's going to pass or not.

DAVIES: Besides the states which have referenda this fall, there's a very controversial legislation in Oklahoma. What are its provisions and what - and significance?

Prof. GORNEY: Well, Oklahoma passed a kind of omnibus abortion bill under the general heading of freedom of conscience, which is a concept that's been accepted in a lot of venues. The most controversial part of this legislation, which was vetoed by the governor, and then the legislature brought it back - it's supposed to kick in November 1st - is language that requires a woman having an abortion at any point in gestation to have an ultrasound.

Now, the idea of requiring physicians to offer a woman an ultrasound has been kicking around for a while, but the Oklahoma legislation actually says that the woman has to have it. The physician has to do it, and I'm looking at the legislation itself. It says that she has to have whatever kind of ultrasound, quote, would display the embryo or fetus more clearly, and the ultrasound image has to be displayed so that the pregnant woman may view them, and that, while the images are being played, the physician has to discuss them, the presence of cardiac activity - again, this is from the legislation - if present and viewable, the presence of external members and internal organs if present and viewable. And finally, most interestingly in this, the legislation itself says, nothing in this section shall be construed to prevent a pregnant woman from averting her eyes from the ultrasound images required to be provided and reviewed with her.

So, you actually have state legislation here that says, regardless of whether you want one or not, you have to have an ultrasound, and the doctor has to talk to you about what he or she is seeing in the ultrasound while the ultrasound is going on, and if you really want to close your eyes or look away, you can. Now, I actually asked somebody who was involved in this thing - and I wasn't entirely being cynical - whether there was anything in this that prevented a doctor or a clinic from saying, here's an iPod. Put the plugs in your ears and turn the volume way up while I'm doing this. There isn't, you know, so that's another way that they could approach this if they wanted.

This legislation is supposed to go into effect November 1st, and it is presently being litigated. The Center for Reproductive Rights, which is a very active pro-choice group that does a lot of this litigation, is arguing that it needs to be stopped. They have a number of different arguments against enforcement of this.

DAVIES: Do you expect this will get to the Supreme Court?

Prof. GORNEY: I don't know. I think that really, again, depends on federal courts, and it depends on who the Supreme Court that it would get to is, if you follow the grammar of that sentence. I mean, if I were a right-to-life litigator, I would say, sure, let's bring this thing up, because the main advantage to all of the discussion about the partial birth abortion ban, as far as the right-to-life community was concerned, was not the actual ban of the procedure. There aren't very many of these done. Everybody gets that. There are other ways to do a late abortion. It was to force upon the public a big, very unpleasant discussion about what happens in abortion and what a fetus in an abortion after 12 or 14 weeks actually looks like.

This ultrasound legislation is another way of having the same conversation nationally. Should a woman be allowed to have an abortion without being forced to look physically at the image of what it is that she's doing? Obviously, the pro-choice community regards this as a really unfair, really cruel kind of imposition on the woman. The right-to-life community regards this as, at the very least, a way to force people to look literally, as well as emotionally, at what the act involves.

DAVIES: One more question about the election. Given that Sarah Palin embraces a very pure hard-line pro-life position, and that was helpful to McCain in securing his pro-life base, why do you think the issue of abortion hasn't been a more visible issue in the campaign?

Prof. GORNEY: Because it's not in the Republicans' interests to have Sarah Palin talk about what she really thinks on this. Now, this is me talking. I have no close line into Republican strategists at all. But because what she believes about this, which is no, it shouldn't be legal, even in the dreadful case of rape or incest because it's not the baby's fault that the baby was conceived in rape and incest. And if it's a baby, it's a baby. That's the right-to-life view on this. Because that position is so distressing to a majority of Americans and pushes a majority of Americans, I would argue, into thinking to themselves, well gee, if I think it ought to be legal for rape and incest, maybe I really think it's a complex moral decision that the state should have some say in, but not the equivalent of killing your three-year-old.

And if I really think it's a complex moral decision the state should have a say in, then, actually, I'm thinking kind of like Harry Blackman was thinking in Roe v. Wade in 1973. That's not in either the right-to-life community's best interest, nor in the Republicans' best interests. So it's better to have her held up as somebody who the right-to-life community understands to be one of them in a very big, very principled sincere manner, and everybody else just generally regards as pro-life in the way that we think all those politicians are pro-life without actually looking too closely at what that actually means.

DAVIES: Cynthia Gorney, thanks so much for speaking with us.

Prof. GORNEY: Thank you very much.

GROSS: Cynthia Gorney teaches at the graduate school of journalism at the University of California, Berkeley and has written about the abortion debate for over a decade, most recently for the New York Times magazine. She spoke with Fresh Air contributor Dave Davies, who is a senior writer for the Philadelphia Daily News. Coming up, we listen back to an interview with mystery writer Tony Hillerman, whose novels were set on a Navajo reservation. Hillerman died Sunday. This is Fresh Air.

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