Damon Linker does not pull any punches in his most recent piece for The Week: Why liberals should support banning late-term abortions. I very much doubt that liberals will pay attention, but they should.
Linker’s central point is pretty simple: United States laws on abortion are so radical that they are out of touch with both American public opinion and “that notorious backwater of oppression for women, Europe.” Citing the recent defeat of the Pain-Capable Unborn Child Protection Act, he compares abortion advocates to the NRA:
That an activist would operate this way — strong-arming senators to champion views that harmonize with a mere 14 percent of the country — isn’t surprising. Planned Parenthood, Emily’s List, and their opinion-journalist allies are acting precisely like the NRA and its champions on the right, warning receptive politicians ominously, “Give an inch and the enemy will take more than a mile next time! No compromise allowed!” And so we get no restrictions on late-term abortion, just as we get no serious federal gun control.
He didn’t stop there, either. Instead, he went on to conclude that:
. . . on the issue of abortion, liberals shouldn’t kid themselves about their ability to keep it up. Their position is untenable, and time isn’t on their side. Those who want to ensure that women keep complete reproductive freedom through the first 20 weeks of pregnancy need to back down on the second 20 weeks. Morality no less than politics demands it.
The entire piece is very, very good and worth reading all the way through. I strongly disagree with Linker about abortion (he is pro-choice; I am pro-life), but I very, very much agree with him on the key factors in this article. American abortion law is truly radical, it is not democratically supported at all, and the pro-choice lobby manages to maintain the status quo only by subterfuge. If Americans understood our laws today, they would not stand for them. An understanding of what the laws really permit–and a deepening understanding of the humanity of the unborn–is inevitable.
Here’s a quick note on why Americans don’t understand abortion law. Roe v. Wade set up a trimester system that allowed states to impose more regulation with each trimester. And so, in theory, the states have wide latitude especially after viability. That is why many people believe that abortion is already illegal or severely regulated later on in pregnancy. The problem is that in every case Roe calls for an exception for a mother’s “health.”
That sounds good and reasonable, but another, lesser-known decision (Doe v. Bolton) that was handed down on the same day as Roe v. Wade defines “health” so broadly that the health-exception basically nullifies any law that includes it.
Whether, in the words of the Georgia statute, “an abortion is necessary” is a professional judgment that the Georgia physician will be called upon to make routinely. We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment may be exercised in the light of all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the well-being of the patient. All these factors may relate to health.
So “health” can include basically any factor that a physician decides to include. Which means that any law with a “health” exception is useless. It would be like passing a law that says you can’t drink alcohol unless the bartender thinks you need it. As a result, American abortion law is truly radical and late-term abortions are <em>not</em> illegal or harshly regulated1, but in order to fully appreciate this you have to be aware of not only Roe (which everyone has heard of) but also Doe (which is much less well-known). As far as the general public is concerned, the pro-life lobby keeps trying to restrict abortion without exceptions for the mother’s health and that looks very bad and fits the narrative that social conservatives have declared war on women. The understanding that if the health exception goes in the law you might as well just not even bother passing it is little understood.
As long as this charade is maintained intact, the pro-choice lobby continues to operate from a position of strength, even though only 14% of the American public supports their position. But bills like the Pain-Capable Unborn Child Protection Act and the ongoing release of undercover Planned Parenthood videos are eroding that charade.
Time will end the horrific human rights abuse that is the American system of abortion-as-birth control. There will be a day when we look back on this time period with the same mixture of shame and incomprehension as slavery, segregation, and male-only voting. The Democratic Party can get out of the way, or they can take a turn understanding the true meaning of the phrase “the wrong side of history.”
13 thoughts on “Linker: “Democrats are going to pay a price for defending an unreasonably maximal position on abortion””
Thank you for this.
If the goal is to harmonize with mainstream thought, and the problem with current law is that the health exception is too broad in most peoples’ eyes, why not fix the health exception rather than banning abortion at 20 weeks? Gestational age is often difficult to determine with confidence, so the inherent fuzziness of any health exception is no worse.
Better still, for women’s rights advocates, acknowledge in law that women have a right to medical assistance to stop being pregnant with reasonable dispatch, but that they do not have unlimited discretion as to means. If an option exists which preserves the health of both mother and child, doctors may be required to prefer it to abortion.
I see an argument which supports taking a more moderate position. I don’t see an argument that 20 weeks is the moderate position pro-choice people should choose.
” I don’t see an argument that 20 weeks is the moderate position pro-choice people should choose.”
How about the argument that fetuses are viable humans outside the womb at 20 weeks, primarily due to incredible advances in technology? I mean, do you really have a problem with that?
Kelsey Rinella, seriously, help me understand why banning 20 week abortions out of a sincere interest in human rights is a big deal to you. A few cursory google searches can lead you into the latest medical science on fetal viability and fetal pain. It’s not like conservatives are just making this stuff up. This is being drive *by medical science*.
Good question. The 20-week cutoff is less flexible than it ought to be in a number of ways. I totally understand finding the breadth of the health exception a problem, but even most of those opposed to abortion ought to agree that if both the mother and child will certainly die without an abortion, that the outcome is better if only one of them dies, even if the abortion necessary to save that life happens after 20 weeks. My own view is that, if there’s a reasonable chance of the death of the mother avoidable only by abortion, it would be legal for that woman to defend her life even at the expense of the life of another person, so whether the fetus is a person or not the abortion certainly ought to be legal.
On the other side, available technology and expertise differs both from place to place and time to time. If 20 weeks is the current threshold of viability at the most advanced hospital in the world (and I’ve not heard of it being pushed back quite that far, but it’s not an issue I follow), it doesn’t follow that a poorly-equipped rural area would be able to reasonably hope for such impressive results, nor that improvements in technology won’t push that threshold back even further. Laws, especially about controversial topics which are likely to be challenging to pass future laws about, should avoid assuming the current state of technology where possible.
There is essentially zero support for abortion bans that do not provide an exception for the mother’s life, even among the pro-life community. As a result, people just assume that the law is going to have an exception for the mother’s life without even mentioning it. I double-checked to be sure, and the law in question does have an health exception.
Link to the bill, if you’re curious: https://www.congress.gov/bill/114th-congress/house-bill/36
Glad to hear it. So, again, what reason is there to prefer this moderate option to others as a way of bringing support for abortion rights into the mainstream? Am I mistaken in thinking that question hasn’t been addressed?
Because it seems to me that a state legislature could push the issue of the overbreadth of the health exception by using language similar to what’s in that bill and applying it to the third trimester. That seems like the least ambitious way to give the Supreme Court the opportunity to address that problem. So if the health exception is the issue, moving back the date of the ban to 20 weeks seems to complicate matters and reduce the probability of successfully narrowing it.
I do not think the “health” exception is quite as useless as you think. My diagnosing doctors at the University of Michigan said they supported my decision to have an abortion when they diagnosed my baby with lissencephaly at 28 week, they just couldn’t legally do it themselves. If I had decided to terminate at 22 weeks, when they first saw several abnormalities but said there was a 70% chance my baby would be fine or have only minor cognitive delays, they would have. But not after the 24-week limit.
As I mentioned when I related my story before, carrying to term would have posed greater threats to my physical health. It also would have been psychologically devastating to be pregnant for another 2 1/2 months, knowing my baby would suffer and die shortly after delivery. However, according to the hospital legal staff’s interpretation of Michigan law’s 24-week limit, unless there was a direct and immediate threat to my life (as in the case of severe pre-eclampsia), they couldn’t perform an abortion after that point. No other hospital or abortion clinic in the state of Michigan who would help me either. There were only four clinics in the country willing to perform an abortion for a fatal prenatal diagnosis after 24 weeks.
I am a member of a support group for women who’ve terminated wanted pregnancies for medical reasons, and many have also had to travel across state lines, even at earlier gestational ages, because of similar interpretations of the law in states with 20-week limits. In many of their cases, carrying to term would have posed an even greater threat to their health, but again, if there was no imminent threat of death death (i.e. beyond the threat of death involved in any labor & delivery), most hospitals and clinics just won’t do it.
So I don’t know where you’re getting the idea that there are effectively no regulations on late-term abortion in the U.S. I’m a rich white woman with a Ph.D. I’m the kind of person who could supposedly get an “elective” abortion even in the days before Roe v. Wade, due to doctors willing to stretch the definition of “medical necessity.” My baby was diagnosed with a fatal brain abnormality with a good possibility of causing her brain to swell, complicating delivery. If anyone’s going to be able to avail themselves of a flexible health exception clause, it would be me. Instead, I had to travel across the country and pay out of pocket to get the medical care that would align with my conscience and values. If I’d been poor, I would have had to carry to term, even though it would have caused my baby greater suffering and posed a threat to my physical and psychological well-being.
So there are two factors at play.
First, there is the fact that there are very, very few doctors who will do late-term abortions (for any reason). That is certainly true, and is one major reason that late-term abortions are so rare: they are hard to get. It is certainly not the cast that late-term abortions (elective or otherwise) are common.
Second, there is the actual legal question. It is my understanding that bans on abortion without a health exception at any time in the pregnancy are unconstitutional. It is possible that laws like this exist at the state level because they haven’t been challenged yet, but if and when they were challenged it would result in another defeat at the SCOTUS level (if it got that far).
I’m not sure about Michigan in particular. I did a little bit of research, and the Guttmacher Institute (affiliated with Planned Parenthood) lists all of the abortion restrictions in Michigan effective as of July 1, 2015. None of the restrictions have to do with banning abortion after a certain gestational period. Here’s the list: https://www.guttmacher.org/pubs/sfaa/michigan.html
So I can’t speak to exactly what your doctors told you about the law. All I can tell you is that, according to Roe, all bans must have a health exception and that, based on a few minutes of Googling, there are no general bans in Michigan on late-term abortions.
If you do know anything about the specific statute in Michigan, I’d appreciate you passing that info along.
Michigan’s ban, as the Guttmacher Institute says, is at “viability.” According to my doctors at the University of Michigan, that has been interpreted by their legal staff to mean 24 weeks. There is an exception for threats to the mother’s health, but that has been interpreted to mean a threat of death or severe disability over and above the threat usually posed by labor and delivery.
This is the same interpretation of the law that all the other women in my in-person support pregnancy loss support group with poor prenatal diagnoses were given, whether they were seen at the University of Michigan or St. Joseph’s (the Catholic hospital in Ann Arbor). Their experiences also speak to the reality of legal restrictions on late-term abortion: one chose to terminate at 23 weeks despite an uncertain prognosis at that point because she could not afford to travel out of state and so felt she could not afford to gamble on waiting until after 24 weeks for a more certain diagnosis–her doctors at the University of Michigan performed the labor & delivery abortion (so clearly they have no objection to performing late-term abortions, it’s only their interpretation of the law that prevents them from doing so at later gestational ages). Two other women (one whose baby was diagnosed with Trisomy 18 at 21 weeks and one who developed oligohydraminos and then anhydraminos at 19 weeks) signed the paperwork that would enable them to terminate but chose to wait to see if their babies would die on their own before the 24-week limit , and both did.
Many women in my online support group have faced similar restrictions in other states. Again, that’s why some of us have to travel to the few states where abortion for poor prenatal diagnosis is allowed.
I’m not disputing the existence of the health exception for all late-term abortion bans, I’m disputing your portrayal of that health exception as essentially meaningless. Women across the country are routinely told they cannot have an abortion in their home state after 24 weeks, even when there is what I would imagine could easily be construed as a threat to their health and well-being. Whether or not you think that’s how the law could be interpreted, it is not how the law is being interpreted by health practitioners right now.
For lots of other stories of women who had to travel because of restrictions on late-term abortion in their state, you can see the “Termination after 24 weeks” collection at Ending a Wanted Pregnancy (the host of the online support group I participate in): http://endingawantedpregnancy.com/category/diagnoses/termafter24weeks/
If it were easy to get a legal exception for the health of the mother and that were being broadly construed to include psychological & familial well-being would any of these women have had to leave their home state?
Sorry, I’m really tired so I might just be missing something, but I checked again just now and I don’t see where the Guttmacher site says anything about a ban in Michigan at viability. It says that Roe allows for a ban at viability, but not that Michigan in particular has such a ban. (Unless I’m missing something.)
As for the bigger question, this gets to the crux of a pro-lifer’s concerns:
Again: there are two distinct things going on here. First, there are very few abortionists who will take cases this late-term. That does mean that a lot of women will have to travel long distances for late-term abortions. It does not actually mean that there are any legal protections whatsoever for late-term fetuses.
The second thing is the legal restriction, and there really isn’t one. The fact that UM doctors (or their legal team) decide to interpret “health” in a strict, narrow way does not actually mean that there is a legal restriction. It means that they have decided to go above and beyond. Quite frankly, the reason for that probably has a lot to do with the first point than the second. It’s already a matter of open fact that practically no one wants to do these abortions, so it’s very little surprise that doctors would use the law as an excuse to not do what they already do not want to do.
Again: that doesn’t actually mean that there is any legal protection whatsoever. It just means that–for a variety of reasons–doctors do not like doing late-term abortions.
Part of what motivates the pro-life movement is not just a practical opposition to abortion, but a philosophical opposition to leaving wide segments of the human population completely devoid of legal protection or status under the law. The fact that it is hard to get a late-term abortion does not–in and of itself–actually satisfy this concern.
Here’s the chart from Guttmacher detailing the limit in every state–sorry, I would have included it but I mistakenly thought it was the same link as the one you’d posted earlier: http://www.guttmacher.org/statecenter/spibs/spib_PLTA.pdf
My doctors (not specialized abortionists, but the same OBs who diagnosed my baby and who do all the level-II ultrasounds for the roughly 16,000 babies born at UM every year) would have performed my abortion at 22 weeks, when they said my baby had a 70% chance of being healthy or have only minor impairment, if that had been my decision–just as they did for the woman in my in-person support group who still had an uncertain prognosis at 23 weeks. Several of the people on my diagnosing team were openly distraught about the fact that they had to make me travel across the country at 29 weeks pregnant to do what everyone on the team assured me was a compassionate and responsible decision in my situation. I highly doubt that their interpretation of the law is based on some kind of distaste for late-term abortion. These are the people who see first-hand exactly why late-term abortion is sometimes the most compassionate choice.
This study, which I had not seen before, cited in the above Guttmacher link, found that over half of women who had abortions after 16 weeks described their pregnancies as “intended”: http://www.guttmacher.org/pubs/journals/j.contraception.2011.10.012.pdf. I suspect that proportion would only increase with increasing gestational age. And that does not include women whose pregnancies were unintended but who had decided to carry to term until getting a poor prenatal diagnosis.
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