September 19, 2003


A Deceptive Abortion Ban (NY Times, September 19, 2003)

It now looks likely that in the coming weeks, President Bush will sign into law a ban on so-called partial birth abortion, thereby culminating a long campaign of deception. The measure, which has been constantly misrepresented as limited to late-term abortions, would in fact ban common abortion procedures used after the first trimester of pregnancy but well before fetal viability.

This will be a substantial blow against women's reproductive freedom, a clear contradiction of Roe v. Wade, the 1973 decision legalizing abortion.

Even though Harry Blackmun was typically confused, the language of the decision states the opposite of what the Times asserts:
[W[e do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes "compelling."

With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Obviously banning late term abortions is explicitly allowed by Roe.

Posted by Orrin Judd at September 19, 2003 2:43 PM

Didn't Roe have that whole "trimester" formulation for deciding when abortion could be permitted or banned?

Posted by: PapayaSF at September 19, 2003 8:23 PM

Yes, but the trimester formula was essentially thrown out in Planned Parenthood v. Casey due to being arbitrary and unscientific. Casey acknowledged that advances in medical science meant that the date of viability was being pushed back, and that premature babies were much more likely to live now than when Roe was decided. However, it against just finessed the issues.

Posted by: John Thacker at September 20, 2003 2:51 AM

Ironically, NOW and NARAL could help cement women's reproductive choice by willingly going along with banning late term abortions, except where continuing to term represented a threat to the mother's health.

Unfortunately, irony is a difficult concept for most people.

Posted by: Jeff Guinn at September 20, 2003 5:40 AM

Conservatives won't go along with a "mother's health" exception unless it excludes mental health because allowing a mental health exception -- which has been interpreted to mean not much more than giving birth will make the mother sad -- would undo the ban.

Posted by: David Cohen at September 20, 2003 9:32 AM


You are right.

Without any real numbers to go on, it is impossible to know how many prospective mothers will take themselves and their fetuses to a suicidal grave.

But, as long as the mother dies, I suppose those conservatives will be untroubled.

Posted by: Jeff Guinn at September 20, 2003 6:28 PM

Let's say we'd be less troubled at the thought of ten or a hundred or a thousand pregnant women a year committing suicide and killing their unborn children, than we currently are at the thought of over a million women a year killing their unborn children, and then some number -- and here again we can't get a real number to go on -- kill themselves out of despair or remorse or what have you. Some number of them, I'd imagine, kill their infants as well. No real numbers either way, but the law is for the sake of deterring bad conduct at the margins.

I'd at least like to save the 999,000 that we can save; that's a pretty big margin.

Posted by: Random Lawyer at September 20, 2003 9:02 PM

Random Lawyer:

That, of course, makes sense.

I just wish this argument was illuminated by a little more information.

Which it should be. The number of late term abortions is small. And I suspect every one of them is the result of some in extremis situation. After all, the small incremental physical cost to the mother of continuing the pregnancy for an additional, brief period, then giving the baby up for adoption, makes me suspect (but completely unable to confirm) that women are undergoing late term abortions for "trivial" reasons.

That may be. But the fact that just two genetic aberrations account for roughly ten percent of all late term abortions (and only alter the timing of the fetus' death, not its certainty), leads me to suspect very few late term abortions are due to mere whim.

Of course, all this conjecture could be way off base. But the fact we can categorize highway fatalities, greater by 10,000 or so/year, yet have virtually no information about the causes of late term abortion, makes me suspect any ban will be informed far more by passion than reason.

Posted by: Jeff Guinn at September 21, 2003 8:52 AM

But, as long as the mother dies, I suppose those conservatives will be untroubled.

Wow. Y'know, I don't say this often, Jeff, but that was deeply and profoundly stupid. I'd argue about this, but I don't make it a habit to wage ad hominem invective assaults when I have more productive things to do with my time, like clipping my toenails.

I just lost a lot of respect for you. Congratulations.

Posted by: Chris at September 22, 2003 5:12 PM

I was just wanted to ask if you had a very Merry Christmas / Holiday, and to wish you the very best for the New Year.

BTW, In saw something on another blog site I think it is a good idea to let as many people / bloggers know about. I was just organizing my vacation for later this year and stumbled across the above web site about Bali, where I was considering going. But just read what it says there and especially between the lines; unreal. A travel agent there Bali Discovery Tours of Sanur went to their friend the police chief and made trouble for someone visiting the island who had caught this travel agent offering unauthorized room rates on the Internet for the Hotel Santika Beach in Kuta, which is where I was going to stay, but thank God I am not now (I am not even going to Bali becuase of this) - seems to me like the hotel did not exactly help!

The poor guy was detained by the police for 4 days and had his passport illegally seized. He was not released until the British Embassy filed a formal complaint. Of course, there were no charges!! This is absolutely terrible. Please, please, please, join me in saying "Stuff Bali - I'm going somewhere where they treat people like guests, not enemies".

Posted by: George at January 4, 2004 12:06 AM
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