On this day 41 years ago, the U.S. Supreme Court ruled women have a constitutional right to an abortion. Today, thousands of abortion opponents will hold their annual rally in front of the Court to protest that decision. Despite numerous attempts to repeal it, Roe v. Wade is still the law of the land. But the past few years have seen a surge in the passage of anti-abortion measures by dozens of state legislatures. Supporters and opponents of abortion rights agree the new restrictions have dramatically altered access to the procedure. And some are concerned low-income women are especially affected. Diane and her guests discuss how access to abortion has shifted in the four decades since Roe v. Wade.

Guests

  • Carol Tobias president, National Right to Life Committee.
  • Terry O'Neill president, National Organization for Women.
  • Joan Biskupic editor in charge for legal affairs, Reuters News. She has written biographies on Sandra Day O'Connor and Antonin Scalia.

Transcript

  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Today marks the 41st anniversary of the Supreme Court's ruling that legalized abortion in the U.S. Despite numerous attempts to repeal it, Roe v. Wade remains the law of the land, but in the last three years more state abortion restrictions were enacted than in the entire prior decade.

  • 10:07:20

    MS. DIANE REHMJoining me to talk about how access to abortion has changed since the landmark 1973 decision: Carol Tobias of the National Right to Life Committee, Joan Biskupic of Reuters, and Terry O'Neill of the National Organization for Women. I'm sure many of you will want to weigh in. Give us a call at 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or Twitter. And welcome to all of you.

  • 10:07:59

    MS. TERRY O'NEILLThank you.

  • 10:07:59

    MS. JOAN BISKUPICThank you.

  • 10:08:00

    REHMAnd before we begin, we should point out that Carol Tobias, president of the National Right to Life Committee, is running a bit late, perhaps because of the weather here in Washington. So we shall begin with you, Joan Biskupic. Talk about what's changed in the last 41 years in regard to abortion rights.

  • 10:08:29

    BISKUPICYes, Diane. And isn't it amazing that it has been 41 years? Because it seems so present in our lives today, still.

  • 10:08:36

    REHMAbsolutely.

  • 10:08:36

    BISKUPICThe salience, politically, legally. And first of all, I think I'll mention that, in terms of the political movement, it really didn't take off right away in '73. It took off more in the '80s. Justice John Paul Stevens, who was nominated to the Supreme Court in 1975, likes to remind people that abortion was not even a topic at his confirmation hearing. Nobody even asked him about Roe v. Wade because what happened was it simmered, and then the large Right to Life Movement, Ronald Reagan's administration, and the moral majority sort of energized a lot of this.

  • 10:09:10

    BISKUPICSo let me just quickly address legally. You're absolutely right. It's still the law of the land. The Supreme Court in its most recent abortion rights decision, 2007, upheld a federal law banning a procedure known as partial birth abortion. That was our last one -- deeply divided court, 5-to-4. And it didn't -- proponents of abortion rights believe it really chipped away at Roe.

  • 10:09:37

    BISKUPICBut, of course, it didn't undercut the actual fundamental right. Politically, people are still very, very divided, just from what we saw in the late '70s, early '80s. It's the kind of thing that has -- you know, I remember when I was covering this even in the late '80s, people said, it's just like Vietnam. Now, nobody would even say it's just like Vietnam because Vietnam feels even older.

  • 10:09:59

    REHMYeah.

  • 10:10:00

    BISKUPICBut it's still very much there. And what's happened -- at least from where I sit watching it at the Supreme Court -- is that it's become more of an issue in the law and disputes having to do with access. We've had several cases come up to the Supreme Court in recent years that the justices didn't take, but yet involved when women can actually get to clinics to have abortions, for example, facilities requirements in Texas that require doctors who perform abortions to have admitting privileges at hospitals and what a woman must be told and understand before she's allowed the procedure.

  • 10:10:41

    BISKUPICAnd then, as your listeners probably know, just recently we had a very important abortion protest case at the Supreme Court that tests a Massachusetts law that says that protestors -- or abortion counselors as they like to call themselves -- cannot come within 35 feet of a clinic to hand out leaflets, to talk, to protest, whatever, because that will impeded access and actually lead to congestion at the site that could become very dangerous. And that's something that has remained very much a picture in America, danger at these clinics.

  • 10:11:20

    REHMAnd yet the justices who heard that argument and commented on the arguments seemed quite skeptical of the idea that people who wanted to counsel those going for an abortion had to stay 35 feet away.

  • 10:11:45

    BISKUPICThat's right, Diane. Several of the justices -- and I have to say, including liberal Justice Elena Kagan -- commented on how large of an area this was, 35 feet. The last time the justices took up that kind of buffer zone, as we call it, was in the year 2000, and it involved a Colorado law that required an eight-foot floating buffer zone around an individual patient going into a clinic.

  • 10:12:12

    BISKUPICAnd Justice Kagan said, why does it have to be so large? And the Massachusetts attorney defending the law said, because, you know, first of all, 35 feet isn't that large, is what she tried to maintain, given the kind of congestion and problems that, you know, these clinics have seen and that it's just necessary.

  • 10:12:35

    BISKUPICYou're absolutely right. The justices seemed skeptical of that. And the big question for those of us who are watching the court will be, if they strike down this buffer zone, will they write a rule that makes it harder to have any kind of buffer zone? Or will it be confined to just this particular size?

  • 10:12:52

    REHMAnd then I've had emails from people saying, well, what about the rights of those seeking an abortion? Don't they have a certain right not to have someone in their face?

  • 10:13:14

    BISKUPICThat's exactly what Massachusetts felt in terms of just -- well, let me -- actually, what Massachusetts was arguing was much broader than that and wasn't so centered on the patients as much as the atmosphere, the potential danger of, you know, violence and congestion and not -- I want to make sure your listeners know that this isn't a question of actual violence and assaults at clinics because we have federal laws, and we have state laws that were not at issue here.

  • 10:13:43

    REHMCertainly. Sure.

  • 10:13:44

    BISKUPICIt was more the congestion, the disruption, the access, and the sort of orderly conduct that any kind of municipality or state would want around. But the question of a woman and her right, Diane, I should tell you, actually, didn't come up at all during that hearing.

  • 10:14:02

    BISKUPICBut the reverse came up in terms of Justice Scalia saying, remember, these are people who are counseling against abortion. And then also Anthony Kennedy raised the specter of one of these protestors, counselors, however you want to identify them, being able to talk a woman out of ending her pregnancy. But there was not the kind of foreground discussion that you're suggesting here about a woman's right to abortion.

  • 10:14:32

    REHMJoan Biskupic, she's the editor-in-charge for legal affairs at Reuters News. And I'm happy to welcome now Carol Tobias. She's president of the National Right to Life Committee. I hope that, as you were coming up in your taxi, perhaps you heard some of what Joan Biskupic has reported about how we've seen abortion rights first sort of be ignored and then change drastically over these 41 years. You point out that abortions are still widely available.

  • 10:15:21

    MS. CAROL TOBIASThey are. First of all, I want to apologize for being late. I found the slowest cab in Washington. He assured me the roads were icy, and he wasn't going to do anything to hurt his car. I couldn't argue with that.

  • 10:15:30

    REHMAll right. On a day like this, I can certainly appreciate that.

  • 10:15:35

    TOBIASAbortion is widely available. Fifty-six million unborn children have been killed in the past 41 years from legal abortion. But abortion is still not accepted in the country. It happens, but women don't talk about it. You know, they might say that they're not coming into work tomorrow because, you know, they're going for some -- you know, maybe it's a dental appointment or something else is going on, but they don't tell co-workers that they're not coming in because they're going to get an abortion.

  • 10:16:07

    REHMWell, of course, that's a very private thing to say, isn't it?

  • 10:16:09

    TOBIASWell, it is. It is. But women don't generally talk about it. And what we are seeing more of are women who have had abortions coming forward to say, I made a mistake. I wish I hadn't done this. It happened -- it might be five years ago, it might be 30 years ago -- and it is still affecting them. And they are trying to encourage women not to make the same mistake that they did.

  • 10:16:30

    REHMWhat are you seeing in the way of state limitations going on, even though abortion is still the law of the land? What do you see going on at the state level?

  • 10:16:46

    TOBIASWell, our biggest push is to pass a bill that would say once the unborn child can feel pain, that abortion is not allowed. There's a large body of medical evidence that would say that occurs at about 20 weeks after fertilization. And 10 states have so far passed that bill. The United States House of Representatives has passed it. And we are encouraging Sen. Reid to let the Senate vote on that bill.

  • 10:17:10

    TOBIASAnother big one is webcam abortions. Because there are not as many doctors willing to perform abortions, and those that did are starting to retire, they're not being replaced by younger doctors, so what groups like Planned Parenthood are trying to do is to set up one abortion doctor in a city that can prescribe a chemical abortion to a woman in another city after talking to her for a few minutes over the Internet.

  • 10:17:38

    TOBIASSo 17 states now have said that's not going to happen because that's not safe for the woman. She needs some kind of, you know, exam before she gets the abortion. This could be an ectopic pregnancy. The chemical abortion would be very dangerous for her.

  • 10:17:53

    TOBIASSo 17 states have said that the abortion doctor has to be in the same room with the woman, so that there can be an exam and he can provide what medical advice or help that he can. So that's another area where we are seeing some of the states take a proactive position, not to allow the chemical abortions prescribed from another city or maybe even another state.

  • 10:18:20

    REHMCarol Tobias, she's president of the National Right to Life Committee. When we come back, you'll hear from Terry O'Neill, president of the National Organization for Women. We'll take your calls, comments, questions. Stay with us.

  • 10:20:01

    REHMAnd welcome back. We do have a ruling from the Supreme Court Medtronic vs. Mirkowski (sic) Family Ventures. The court unanimously reversed the Federal Circuit. Now, we'll get back to the question of abortion rights and how they have changed in the 41 years since Roe v. Wade became the law of the land.

  • 10:20:37

    REHMTurning to you now, Terry O'Neill, and back to this most recent Supreme Court hearing on the amount of distance it required between a person seeking an abortion at a clinic and those who are attempting to counsel that person. Here is that same sort of thrust from Neals in Florida who says, "Where does the right to free speech end and the right to not be harassed begin?"

  • 10:21:17

    O'NEILLYou know, Diane, there are a number of places in this country where we have buffer zones, polling places. You can't get within so many feet -- sometimes it's 100 feet, sometimes 50 feet -- with any kind of campaign paraphernalia visible. The Supreme Court itself has a buffer zone that stretches between 98 feet and 200-odd feet around the building.

  • 10:21:41

    O'NEILLIt exists there in the words of the regulation that Chief Justice Roberts approved just this past June. The regulation states that the buffer zone exists for the purpose of maintaining proper order and decorum. So they don't want anyone coming within 98 feet of the building who might be rude. In Massachusetts, the 35-foot buffer zone is intended to prevent people who might be violent, commit assault, battery, even murder.

  • 10:22:12

    O'NEILLIn fact, the 35-foot buffer zone in Massachusetts was passed into law after two horrific murders occurred in one day, blocks apart. A man walked into an abortion clinic, murdered the receptionist, a young girl, and then shot numerous other people, walked down the road about five blocks to another clinic where abortions were performed, killed the receptionist there, wounded a security guard. And it was utter mayhem. After this, the Massachusetts lawmakers decided that that floating zone that you mentioned earlier...

  • 10:22:49

    TOBIASFrom Colorado.

  • 10:22:50

    O'NEILL...from Colorado, they actually had some kind of a floating zone they were using in Massachusetts. And they concluded that it didn't work. So they put a 35-foot buffer zone to prevent murder as opposed to the Supreme Court's own buffer zone, which is to prevent harassment.

  • 10:23:05

    REHMTerry O'Neill, she's president of the National Organization for Women. Carol Tobias, how do you see, view that buffer zone?

  • 10:23:19

    TOBIASPro-life people are trying to convince -- mic light is not on.

  • 10:23:24

    REHMYou're fine.

  • 10:23:25

    TOBIASPro-life people are trying to convince women who are seeking an abortion that there are alternatives that are available that she should maybe think about whether or not she wants to make this irreversible life or death decision. They are not there to harass or to create problems. They want to talk to the woman and offer her some genuine support.

  • 10:23:48

    REHMYou -- I'm sure you don't disagree with what Terry has just said about the killing, the murder of those...

  • 10:24:00

    TOBIASOh, absolutely. That's not pro-life. We would say that they were not acting in the interest of the pro-life movement. They were not pro-life when they are attacking and killing the people involved in this process.

  • 10:24:15

    REHMTerry.

  • 10:24:15

    O'NEILLThat's right. And let me just add that the buffer zone itself applies to all protestors, prochoice as well as anti-choice protestors. The clinic -- no one is allowed to get within that 35 buffer zone for the purpose of protesting or counseling or arguing or making any comment about a woman's decision to walk into that clinic.

  • 10:24:38

    REHMCarol, let's talk about the practical impact of some of the regulations that require doctors to have admitting privileges at local hospitals. Why do you believe that that's so important?

  • 10:24:57

    TOBIASThat has not been one of the legislative goals or strategies that National Right to Life has been promoting. But I think the people that are pushing this would encourage the doctors to have that admitting privilege because not all abortions are safe. There are complications. There can be some problems. So why not have the doctor who was performing this procedure be able to call an ambulance and take the woman to the hospital and take care of her, you know, at that time.

  • 10:25:29

    REHMAnd what's the other side of that, Terry?

  • 10:25:31

    O'NEILLUnder the guise of regulating medicine, admitting privileges, so-called trap laws, these are targeted regulation of abortion providers. Those kinds of laws are actually selectively applied only to women's health providers, never to men's health providers. The admitting privileges should be based on the kind of medicine that is being practiced in a particular locality and on evidence -- the actual degree of danger.

  • 10:26:01

    O'NEILLIn fact, abortions are one of the safest procedures that a woman can experience during pregnancy. Those are just the evidence facts. So clearly doctors need to have admitting privileges when what they are doing makes that appropriate. But what we should not do is insert politics into the decision of when a doctor needs admitting privileges. It should be based on what kind of medicine the doctor is performing.

  • 10:26:29

    REHMJoan Biskupic.

  • 10:26:31

    BISKUPICI just want to mention that the Supreme Court actually had an opportunity to maybe weigh in early on that question and decided to wait. As many people know, Texas has a law that requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of the facility when the -- where the abortion would be performed. And that came up on appeal to the Supreme Court recently. And the justices decided not to intervene. They're going to let that work its way up on the merits. So that is in effect in Texas.

  • 10:27:03

    BISKUPICBut I also wanted to mention, related to the fetal pain issue that...

  • 10:27:08

    REHMYes. That's the one I wanted to get to. Go right ahead.

  • 10:27:10

    BISKUPICOh, OK. I was just going to say, those laws certainly have proliferated. And we had recently an Arizona law come up on appeal to the justices that banned abortions beginning at 20 weeks of fetal gestation where that had been struck down. And the justices did not intervene. They didn't take up the appeal. Twenty weeks -- you know, 20 weeks is awfully early, but it could also be awfully late.

  • 10:27:34

    BISKUPICAnd that kind of goes to the whole idea that Justice Sandra Day O'Connor once referred to on the original Roe rule of looking at the viability of a fetus, that that could -- with medical advances over the years, that's a legal formula that's sort of on a collision course with itself.

  • 10:27:52

    BISKUPICSo right now the law, as it stands since 1992 with the Justices Casey ruling, is that there can be no restriction on abortion that puts an undue burden on a woman. So the question, when these fetal pain laws ever do get decided by the justices will be, does this kind of law put a burden on a woman who's trying to end a pregnancy?

  • 10:28:14

    REHMCarol, what evidence do we have from science, from physicians, from hospitals, from clinics that a 20-week-old fetus does in fact feel pain?

  • 10:28:32

    TOBIASThe baby is developed enough that the responses are coming from the thalamus. The brain can feel and send out the signals for pain. The baby can recoil if a needle is pricked, you know, into any part of the body. The baby will, you know, move to avoid any object that is inserted into the uterus or near the body. The baby can feel that pain.

  • 10:28:57

    REHMAnd where have those studies come from?

  • 10:29:01

    TOBIASOh, various neurosurgeons and medical professors. We've got a website with a lot of that information.

  • 10:29:10

    REHMOK.

  • 10:29:11

    TOBIASI would like to just comment real quickly on the Arizona case. That is a separate law. It's very different from what National Right to Life has been promoting with the Pain Capable Unborn Child Protection Act. The focus of the Arizona law -- and even the title was a woman's, you know, safety and health act. And that was geared toward the health, which, you know, the 9th Circuit said, you know, was an undue burden.

  • 10:29:37

    TOBIASThe pain capable bill is an attempt to follow after the Gonzales v. Carhart case, the partial birth abortion ban where the Supreme Court said that states may have a compelling interest in protecting the life of the unborn child. So the Arizona case for one is a different bill than what we have been promoting and what Congress is looking at. And two, the 9th Circuit was the only court that addressed anything like this. And it's very rare for the Supreme Court to hear a case that is not being disagreed upon among various courts.

  • 10:30:11

    REHMTerry, you've got Republican-controlled House really pushing for a total ban at 20 weeks.

  • 10:30:21

    O'NEILLYes.

  • 10:30:22

    REHMAnd that would be against the Roe v. Wade, which is 24 weeks. Is that correct?

  • 10:30:30

    O'NEILLYeah, the earliest...

  • 10:30:31

    TOBIASThe original -- yeah, the idea was viability.

  • 10:30:32

    REHMThe original -- right. OK.

  • 10:30:34

    O'NEILLYeah, and the earliest viability really is about 24 weeks, maybe 26 weeks. So actually 20 weeks is extremely early.

  • 10:30:42

    REHMSo -- but can you argue against Carol's point that doctors, scientists, others have evidence that that fetus at 20 weeks feels pain?

  • 10:30:58

    O'NEILLSure. The reputable scientific organizations and medical organizations have rejected that claim. Guttmacher Institute rejects it. The American College of Gynecologists and Obstetricians rejects it. There is no good science that indicates that a fetus experiences or feels anything, including pain at 20 weeks. The recoil -- but me let me just...

  • 10:31:18

    REHMCarol, how do you respond to that?

  • 10:31:21

    TOBIASWell, I would say that the Guttmacher Institute started as the research arm of Planned Parenthood, which is the largest abortion chain in the country. ACOG has a pro-abortion position, so I don't know if I would necessarily consider them to be completely neutral on this issue.

  • 10:31:35

    REHMWhat about the American College of OB-GYN?

  • 10:31:41

    TOBIASWhat we -- there are neurosurgeons, like I said, all kinds of medical professors who have testified and have written that this occurs. So, right now, certainly there's going to be some disagreement. But we firmly believe that there is enough evidence to say that that unborn child can feel pain.

  • 10:32:00

    REHMTerry.

  • 10:32:00

    O'NEILLYou know, it's a little bit like one group says the earth is flat, and then what they want to claim is that the neutral way to report that is that views differ on the shape of the planet. The reality is you have to go on evidence. The Planned Parenthood and Guttmacher start with medicine, and they move from medicine to what is best for patients, including men and women and pregnant women. They begin with medicine.

  • 10:32:27

    O'NEILLThey don't begin with the political view of whether a woman should make a decision to terminate a pregnancy. And let me just get a quick thing in here. One of the reasons that the scientists have and medical scientists have rejected the pain capable claim is that you see recoil as early as six weeks gestation.

  • 10:32:47

    O'NEILLWhen women actually know they're pregnant that early, which is not -- many women don't. But when -- you do see that recoil reaction, and that is not the same thing as having sufficient cognition or sufficient brain activity to actually feel pain or experience pain. So there is no disciplined difference between a 20-week ban, an18-week ban, a 12-week ban or the 6-week ban that was instituted in Arkansas in 2011 or 2012.

  • 10:33:22

    REHMTerry O'Neill, she's president of the National Organization for Women. And you're listening to "The Diane Rehm Show." I'm wondering, Carol, whether you feel encouraged by the state restrictions that are going on around the country even while access to abortion remains the law of the land.

  • 10:33:55

    TOBIASOh, we're very encouraged by the state laws that are being passed. Pro-life people have been working very hard to elect pro-life candidates who then in turn pass pro-life legislation. But we know that they also have the support of the American people. Even though someone would say that abortion should be legal, if you start asking them when should abortion be legal or how long should it be legal, that's when they start saying, well, no, I think there should be some limits.

  • 10:34:22

    TOBIASAnd when you say that a woman should be able to get information before she gets the abortion, they say, yeah, that makes sense. Parents should be involved before their minor daughter gets an abortion. They should be at least notified that she is doing this because they have to give their consent before she gets an aspirin from the school nurse, before she can get her ears pierced. So why shouldn't they be involved in the abortion decision for their minor daughter? And people will say, well, yeah, that makes sense.

  • 10:34:47

    TOBIASYou know, should your taxpayer dollars be used, you know, to cover abortions? And they'll say, no, you know, I don't think I should do that, you know. So even if someone says abortion should be legal and they're not willing to just ban abortions, they would say that the legislation that is being passed in all these states is very reasonable and makes a lot of sense.

  • 10:35:08

    REHMTerry.

  • 10:35:09

    O'NEILLSo it was really fascinating to me to see actually there's an uptick in support for abortion rights since the 2012 elections. I was actually a little bit surprised to see in the exit pollings -- one of the exit polls that I saw immediately after the 2012 elections, do you want Roe vs. Wade to remain the law of the land? And the answer was, yes, at 77 percent.

  • 10:35:31

    O'NEILLOf course, Roe vs. Wade permits restrictions on abortion. And we, of course, are -- have spent decades fighting over what those restrictions should be. But 77 percent -- and, Diane, that included 35 percent, a clear plurality -- 35 percent of people leaving the polls who self-identified as pro-life. They want Roe v. Wade to remain the law of the land.

  • 10:35:53

    O'NEILLAnd a big reason for that, of course, is that we know that what happens when women don't have access to the full reigns of reproductive healthcare, so birth control and STD screenings and abortion to terminate a pregnancy that is wrong for that woman at that time, what we see is much higher levels of infant mortality and maternal mortality in the community.

  • 10:36:11

    REHMJoan Biskupic, what do the polls tell us about parent -- parental rights as far as abortion is concerned?

  • 10:36:21

    BISKUPICWell, I can tell you this. I was just thinking, when Carol referred to parental consent and notification, how the Supreme Court approached it when we had a couple of those cases in the '90s. And they have to look at it not from the point of view of where polls are or where the majority of people or people we all would know, how they would react. It's more -- they have to look at it for the kid who might not have supportive parents. And Justice O'Connor actually wrote a lot about this when she was on the court.

  • 10:36:47

    REHMAnd you've done the biography of Justice O'Connor.

  • 10:36:51

    BISKUPICJustice O'Connor was a Ronald Reagan appointee who was actually conservative in many ways and had a lot of competing feelings herself about abortion and abortion rights. And she looked at these cases on parental consent from the point of view of a poor -- a young woman who might not have the support of her parents and said that it couldn't be a burden again on her ability to end a pregnancy that was unwanted, in certain cases. Again, everything (unintelligible).

  • 10:37:18

    REHMJoan Biskupic, she's editor in charge for legal affairs at Reuters News. She's written biographies of Sandra Day O'Connor and Antonin Scalia. Short break. When we come back, your calls.

  • 10:40:01

    REHMAnd welcome back. Today marks the 41st anniversary of Roe v. Wade, the Supreme Court decision which allowed that women had a right to abortion. That remains the law of the land, however many states have adopted their own rules, their own restrictions. Here in the studio, Carol Tobias. She's president of the National Right to Life Committee.

  • 10:40:37

    REHMShe got here a little late this morning because she was down on the Mall where the Right-to-Life group is protesting today. Joan Biskupic is with Reuters News. Terry O'Neill is president of the National Organization for Women. I want to open the phones, 800-433-8850, first to Fenton, Mich. Hi there, Pat. You're on the air.

  • 10:41:10

    PATThank you so much for your programming, Diane.

  • 10:41:13

    REHMThank you.

  • 10:41:13

    PATYou always provide an informative and a fair and balanced examination of your topics.

  • 10:41:20

    REHMThanks.

  • 10:41:21

    PATI have a comment and a question. And my question is, why doesn't Right to Life do more to promote birth control rather than fighting it so that we do not have as many abortions because we don't have as many unwanted pregnancies? That is the real problem here.

  • 10:41:42

    REHMAll right. That's your question.

  • 10:41:43

    PATWomen have abortions because they have unwanted pregnancies. Am I...

  • 10:41:47

    REHMAll right. Carol, do you want -- go ahead, Pat.

  • 10:41:53

    PATMy comment is, if we outlaw abortion, well-to-do women will continue to have abortions if they feel they are necessary by going to other localities. And poor women will continue to have abortions by butchers. And that's all that's going to come of this unless we do commonsense solutions like birth control.

  • 10:42:11

    REHMAll right. Thanks. All right. Thanks for you call, Carol.

  • 10:42:18

    TOBIASWe have no position at National Right to Life on birth control. Some people support it, and some people don't. Our concern is protecting the life of the unborn child once that life has begun.

  • 10:42:29

    REHMDo you want to comment, Joan?

  • 10:42:31

    BISKUPICI just want to let your listeners know that actually this issue is coming up in one fashion before the Supreme Court on March 25 when the justices hear a dispute over the contraceptive mandate of the Obama healthcare overhaul. And it's brought by a business in Oklahoma, a for-profit business run by Evangelical Christians who say that they do not want to provide contraceptive coverage for their employees as the Obama healthcare law requires.

  • 10:42:59

    BISKUPICBut this case has become a bit of a proxy for the abortion wars because it has extended down -- even though Carol's group doesn't take a stand, as she said, but other groups on both sides have very strong feelings about contraception and types of contraception. So that will be very much at the forefront in March at the Supreme Court.

  • 10:43:19

    REHMTerry, what about that issue of birth control and the groups that do lobby against it?

  • 10:43:28

    O'NEILLSure. The U.S. Conference of Catholic Bishops, for example, is the best funded organization that lobbies against birth control. You know, and that is despite or perhaps because of the fact that roughly 98 percent of Catholic women who are sexually active have used birth control at some point. For all women who are sexually active, the number's about 99 percent have used birth control at some point.

  • 10:43:53

    O'NEILLSo the Bishop's preaching against birth control is not working with their own flock. What they are trying to do now is, having failed to convince their own women not to use birth control, they're trying to utilize their power as employers to prevent women having birth control covered in their health insurance policies.

  • 10:44:15

    REHMCarol.

  • 10:44:16

    TOBIASThe problem isn't whether or not the Catholic Church and other businesses are going to provide contraceptives. We have an administration with President Obama forcing churches and religious institutions and private companies to provide what they would call contraceptives, but in some cases may be abortifacients.

  • 10:44:38

    TOBIASThat is what the companies and the churches and the religious institutions are objecting to because they don't want to provide what may be an abortifacient and have -- you know, be forced to pay for it. That's coming from the Obama Administration. The church has -- the Catholic Church before, yes, had a position against contraceptives, but they were not getting involved in the public debate like they have recently. And that's because President Obama initiated the conversation.

  • 10:45:04

    REHMJoan.

  • 10:45:04

    BISKUPICCould I just clarify?

  • 10:45:05

    REHMSure.

  • 10:45:05

    BISKUPICOn the case that the justices have taken doesn't involve a church group. It involves a business -- a for-profit business by the name of Hobby Lobby. They're nationwide craft stores. There is a case that involves the Little Sisters of the Poor out of -- actually, they're all over, but this one came to us from the west. And the reality is that they are not required to follow the contraceptive mandate. They actually have an exemption from that, so church groups already have an exemption. They do have to sign a form asserting that exemption. And that's what's at issue there.

  • 10:45:41

    REHMTerry, I want to ask you about the other portion of our caller's question. She mentioned low-income women. How do you think that scaling back abortion providers in states around the country is affecting the poor rather than wealthy women?

  • 10:46:03

    O'NEILLSure. We know that before Roe v. Wade was decided, in fact, women of means were able to terminate pregnancies in relative safety. But middle class and lower-income women actually wound up being very desperate to terminate an unwanted pregnancy, moving to very dangerous self-inducements and with people who were not doctors.

  • 10:46:23

    REHMDo you concern yourself with that idea at all, Carol, that if the move goes forward to outlaw more and more options to abortion, that low-income women will be particularly affected?

  • 10:46:44

    TOBIASI don't know that I would try to differentiate between the classes, the wealth income. There are now pregnancy resource centers all over this country. In fact, more places will help a woman with a pregnancy than there are abortion facilities. A woman who wants help with the pregnancy, whether it's maternity clothes, prenatal care, you know, with medical personnel, diapers, baby clothes, a place to stay -- any woman in American that is looking for help during a pregnancy can find it because the pro-life movement is there willing to do whatever she wants or needs to help with that baby.

  • 10:47:20

    REHMAnd what about caring for the child, paying for the child after it's born? Where does the pro-life movement come in there?

  • 10:47:33

    TOBIASWe've got open arms. We've got a lot of women who have had babies, and they are getting support. Many of them have been able to get educational opportunities, career training support. There is a lot available for a woman who doesn't want to kill her baby.

  • 10:47:51

    REHMAll right. Let's go to Mike in Dallas, Texas. You're on the air.

  • 10:47:57

    MIKEThank you, Diane. And thanks for all you do. I'd like to direct this to your anti-choice panelist and point out that buffer zones are actually probably kind of a good idea for the pro-life protestors as well. My wife and I are born-again Christians with Southern Baptists. My wife had a very difficult first pregnancy. And she was three weeks into her second pregnancy a few years ago, and her health took a precipitous decline.

  • 10:48:36

    MIKEAnd we had to terminate the pregnancy. But we couldn't use our regular doctor because of the threat of protest, so we had to go to an abortion clinic. And because of the harassment trying to get into the clinic, I almost became violent. The protestors had taken up all of the parking spaces near the clinic, so we had to walk two blocks. And we were harassed the entire way.

  • 10:49:11

    MIKEAnd then after it was over, after she had been through the procedure, she wouldn't let me go get the car and come get her because she was afraid I was going to beat somebody to death. We had to walk two blocks through protestors, followed all the way to our car being told we're going to hell because we terminated this pregnancy. We were photographed. We were videotaped. There was no love. There was no compassion. It was all judgment.

  • 10:49:42

    REHMAll right. Thanks for your call, Mike. That's such a powerful story. And it does make me wonder just how far away people must stay from someone seeking an abortion or the spouse thereof or...

  • 10:50:08

    O'NEILLAnd I have to say the caller is very fortunate that he lives in Dallas where there was an abortion clinic available. Eighty-seven or more than 87 percent of counties in the United States do not have an abortion provider. And can I just go back one moment to the low-income women?

  • 10:50:22

    REHMSure.

  • 10:50:23

    O'NEILLRep. Henry Hyde who pushed through the famous -- infamous Hyde Amendment that prohibits Medicaid funding to be used to terminate pregnancies for low-income women. He famously said that -- he said, I would like to stop all women from having abortions.

  • 10:50:39

    O'NEILLBut if only the poor women are the ones I can get at, then I'll go ahead and stop them. So he very purposely targeted poor women because he felt it was the only group he could target. If that's not making a case against politics getting involved in women's health needs, I don't know what is.

  • 10:50:59

    REHMTell me how this issue is likely to play out in the 2014 midterm elections, Joan.

  • 10:51:10

    BISKUPICI think it's always there. It's always there from both sides. It depends on the various states. I mean, there's nothing other than Obama healthcare, which is very large. It almost equals abortion right now because people on both sides are so passionate about that. And I can say definitely that will be an issue in the midterm elections. And there are many anxious people in the Senate and the House who, you know, supported it who are worried about the public reaction to it.

  • 10:51:40

    BISKUPICBut that said, in terms of abortion, I think it's right now mainly safe to state -- your two advocates would probably know a little bit more. But what I've observed just from where I sit here is that it depends on where there might be some state initiatives on the topic. There might be where there's been a very strong candidate who has spoken out one way or another energizing his or her constituency but then infuriating one or another the other side. I mean, there's just constant reaction formation on this.

  • 10:52:06

    REHMCarol, how do you see the elections playing out here?

  • 10:52:12

    TOBIASOh, I agree with Joan. This has always been an issue and it's always going to be an issue. What we have seen in most elections is that candidates who support abortion don't receive as much support as those who oppose it. Pro-life candidates, pro-life people are willing to vote for their pro-life candidates on this issue in stronger numbers.

  • 10:52:33

    TOBIASThat's generally been the case. 2012 was actually the anomaly. I think the election this year and what I want to see is a focus on the pain bill that is in the Senate. I want every Senate candidate running to say whether or not they would vote for that bill if they get into the Senate.

  • 10:52:50

    REHMCarol Tobias, she's president of the National Right to Life Committee. And you're listening to "The Diane Rehm Show." And to Miami, Fla. Hi there, Bonny. You're on the air.

  • 10:53:09

    BONNYHi. This is a really interesting topic, and I'm really enjoying it. And I wanted to make the comment about the pain issue. For me, this seems like a very ridiculous argument because, when children are born, we cause them lots of pain in the name of health, such as vaccinations and circumcision. And we don't seem to be worrying about that, so why this should be an argument against the abortion is not clear to me. Thanks so much.

  • 10:53:35

    REHMInteresting question, Carol.

  • 10:53:38

    TOBIASWell, the vaccinations are supposedly to help the health of the baby. The abortion certainly is not. Many years ago, newborn babies were operated on without the benefit of anesthesia because everyone just assumed that they couldn't feel anything. We know now that they can, and it's going back far enough -- I mean, because we feel pain after we're born is no reason to say that we shouldn't be born.

  • 10:54:07

    REHMHow in the world is this question of fetal pain likely to be deliberated and settled, Joan?

  • 10:54:18

    BISKUPICWell, you know, it's so emotional, and it does remind me of some of the pictures and the rhetoric and the talk over, well, you know, people call partial birth abortion because it does...

  • 10:54:29

    REHMWhich got pretty gruesome.

  • 10:54:31

    BISKUPICIt did. It did. And then when a case like this though comes to the Supreme Court, the justices have to look at it in a different way. And again, in terms of, you know, is it an undue burden, and they have to -- by precedent, they actually have to look at it more from the woman's point of view than the child's point of view because that's the law. That's the rights. That's what the fundamental right is here.

  • 10:54:53

    BISKUPICThe fundamental right under the constitution is that a woman can end a pregnancy. And the Supreme Court has certainly set limits in terms of how -- restrictions on that and how open-ended that it. But I can see some of the justices actually talking about fetal pain, but I can't hear most of them talking about fetal pain the way politicians would.

  • 10:55:15

    REHMTerry.

  • 10:55:15

    O'NEILLYou know, I think that the justices need to look at the science of it and get back to that and really try to understand. The line right now under the Supreme Court precedent is viability. And the fetal pain laws -- which, by the way, the fetal pain argument was first originated in the 1970s. It has been around for a very long time. As more and more conservative legislators have been elected, they have been able to promote this from a political point of view. But the scientific claim has always been there and has always been rejected, as I said before, by responsible scientists.

  • 10:55:48

    REHMSo will you have lawyers standing up to argue pain...

  • 10:55:53

    O'NEILLSure.

  • 10:55:53

    REHM...or non-pain before the courts...

  • 10:55:55

    O'NEILLSure. Let me...

  • 10:55:56

    REHM...or will you have the testimony of doctors?

  • 10:56:00

    O'NEILLWell, you know...

  • 10:56:00

    TOBIASWell, doctors testified before the House Committee. I mean, they come forward.

  • 10:56:04

    REHMNo. But I'm talking about before the Supreme Court (unintelligible)...

  • 10:56:07

    TOBIASOh, well, before the Supreme Court, we don't let doctors come up there. We...

  • 10:56:12

    TOBIASIt will only be the lawyers from two sides. It'll be the lawyer from the state or the federal government that has enacted this and has been upheld, you know, below. So it'll be a government official versus someone representing a woman or a woman's rights group or somebody challenging it.

  • 10:56:27

    O'NEILLWell, but Roe v. Wade itself was highly informed by testimony, by lower court...

  • 10:56:34

    TOBIASExactly. So then it's going to happen lower, but...

  • 10:56:36

    O'NEILLSure.

  • 10:56:36

    TOBIASBut Diane is wondering whether we will see that at the Supreme Court. We're not going to see that at the Supreme Court.

  • 10:56:38

    O'NEILLAnd I think what we're seeing right now is the result of a very determined effort by conservative politicians beginning in the 1980s to put more conservative -- people with more conservative ideologies onto the federal courts. If I may, with the so-called partial birth abortion decision, those laws leave in place very dangerous procedures for women to terminate emergency pregnancies -- disaster pregnancies and only criminalize the procedure that's actually safer for women. It was a real political decision that was very awful.

  • 10:57:13

    REHMCarol, last brief word.

  • 10:57:16

    TOBIASWell, I think Terry just did it. She talked about the dangerous procedures of abortion, and they are.

  • 10:57:20

    REHMCarol Tobias of the National Right to Life Committee, Joan Biskupic of Reuters News, Terry O'Neill, the National Organization for Women, thank you all so much.

  • 10:57:36

    TOBIASThank you, Diane.

  • 10:57:36

    O'NEILLThank you, Diane.

  • 10:57:36

    BISKUPICThank you.

  • 10:57:37

    REHMAnd thanks for listening, all. I'm Diane Rehm.

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