Sebastian Holsclaw’s new blog has a couple of entries on abortion; one addressing his own pro-life side in refreshingly reasonable terms, and one addressing the pro-choice side. The comments feature some passionate, but polite, debate. (The poster “Fredo” is doing an admirable job holding up the pro-choice side of the debate.)
Sebastian’s message to pro-choicers comes in two parts. First, Sebastian argues that the focus of the abortion debate should be about “the personhood of the fetus.” Fredo, in Sebastian’s comments, and Mithras at Fables of the Reconstruction do a good job responding to this point.
Second, Sebastian argues that the “health” exceptions to late-term abortion bans are abused.
NARAL puts the number of third trimester abortions at about 0.4% of all abortions. I suspect that NARAL is downplaying the statistics, but if you trust them that puts the number of third trimester abortions at about 6,000 per year. Even many liberal states theoretically restrict third trimester abortions except when a continued pregnancy threatens the ‘life or health’ of the mother. The health part of the clause has been so broadly interpreted as to allow ANY mental distress of ANY intensity to be a ‘threat to the health’ of the mother. As a result, despite intensive searching, I have not found a single case in the history of legal US abortions where the mother was not able to qualify under such a clause. That is not one case in about 6,000 abortions per year for 30 years. In fact I don’t even know of a method of a legal method where such decisions might be reviewed. The way these exceptions are implemented make a mockery even of Roe v. Wade. The practical effect of this is that abortion is completely legal all the way up to the very second of birth.
I suspect you know that the US public wouldn’t be thrilled about that, which is why you cling to the fiction of that abortions can be restricted in the third trimester, while in practice you make it impossible for any such restrictions to come into force.
I’m going to answer Sebastian in three parts. First, I’ll show why his argument is based on false premises, and doesn’t hold up. Second, I’ll explain the real-world politics of late-term abortion bans – and why “pro-life” legislators have actually been fighting against late-term abortion bans. Third, I’ll discuss the health exemption to abortion bans.
1. What’s wrong with Sebastian’s logic – bad premise in, bad conclusion out.
Sebastian seems to believe that there is currently a national ban in place on third-trimester abortions, with exceptions to spare the life or health of the mother. This is utterly untrue; there is no such national ban in place.
But what about state-level bans? Many states have some sort of ban on late-term abortions or on the fictional concept known as “partial-birth” abortions. However, nearly all of these bans were effectively rendered unconstitutional by the Supreme Court’s decision in Stenberg v. Carhart. Women needing late-term abortions in the few remaining states whose bans aren’t unconstitutional probably don’t sue to get abortions; it would be much simpler to simply obtain their abortion in another state, one without a ban.
So Sebastian?s argument – which is based on the premise that the US currently bans late-term abortions, and the health exemption to this ban is abused – is totally mistaken. There is no national ban. The few constitutional state-level bans are probably avoided by visiting a different state, not by abusing the health exemption.
2. Why Republicans oppose banning late-term abortions.
So why isn’t there a national ban on late-term abortions?
Because the Republicans don’t want one.
Now, I know you’re thinking I’m nuts. After all, didn’t the Republican-dominated congress just pass a ban on “partial birth” abortions, which the Republican president is expected to sign?
Yes, indeed. But – despite their rhetoric to the contrary – the Republicans in congress know that their ban will almost certainly be found unconstitutional by the Supreme Court. And the funny thing is, the Republicans know perfectly well how to write a constitutional ban on late-term abortions – Sandra Day O’Connor, in her Carhart concurrence, explained very specifically what sort of ban would be constitutional.
O’Connor is the swing vote on this issue on the Court, so her opinion is effectively law. You want to write a constitutional ban on late-term D&X abortions? Sandy’s told you exactly how to do it.
And yet, the Republicans write a ban that does not limit itself to one procedure, and does not contain any health exception. They’ve written a ban, in other words, that’s specifically designed to be rejected by the Supreme Court. What’s up with that?
Here’s another piece of the puzzle. The Republicans in congress don’t want a real ban – but the Democrats do. The Democrats have proposed constitutional bans on late-term D&X abortions again and again, and have been voted down by Republicans every time. It doesn’t matter how the health ban is worded – the Republicans even rejected Dick Durbin’s bill, which would “ban all abortions after a fetus is viable unless two physicians certify that the abortion is necessary to protect the life of the pregnant woman or that she was at risk of grievous injury to her physical health.”
So what’s going on here?
What’s going on is, “partial-birth” abortion is a great issue for Republicans, and they don’t want it to go away. It lets Republican Congresscritters show their pro-life base that they’re fighting the good fight and trying to save babies. It lets them portray Democrats who favor banning late-term abortions, but who want a health exemption, as extremist baby-killers. And by concentrating their fire on “partial-birth” abortions, the Republicans get to avoid dealing with the controversial and electorially dangerous issue of first-trimester abortions.
You see, as long as the fight against “partial birth” abortion consumes pro-life attention, Republican politicians get a pass from proposing any serious legislation attacking first-trimester abortion rights in the states. And that’s very important to the GOP, because a serious fight against first-trimester abortions would be terrible for the Republicans; it would not only galvanize Democrats, it would create a serious split in the Republican party between pro-life and pro-choice Republicans.
The last thing the Republicans want is a multi-year legislative fight over first-trimester abortions. And as long as they can keep the “partial birth” abortion debate alive, they can avoid that fight – and as an added bonus, they get to look like heroes to pro-life voters.
That’s why the Republicans have never supported a constitutional late-term D&X ban – and that’s why the Democrats keep on proposing such bans, and would love to get one passed.
3. The truth about the health exemption in abortion bans.
Sebastian’s concerns about abuse of the health ban are nonsense; they’re the usual lies fed to gullible pro-lifers by cynical Republicans. For instance, Sebastian complains that the “health part of the clause has been so broadly interpreted as to allow ANY mental distress of ANY intensity to be a ‘threat to the health’ of the mother.” But if Sebastian had read the actual text of Democratic proposals like Dick Durbin’s, he would know that Republicans reject all health exemptions, no matter how tightly worded – even ones that specifically restrict the exemption to only physical health problems.
The truth is, there is no ban on “partial birth” abortions in the United States, and hence no health exemption to be abused. But if Republicans were sincere in their concerns, then the legitimate and responsible solution is to pass a constitutional ban on late-term D&X abortions, and then to pass further legislation to close inappropriate loopholes in the health exemption when (and if) they show up.
That?s the responsible way to deal with the loophole problem (if it even exists – I’ve seen no persuasive evidence that it does).
That’s what the Republican-controlled legislature and executive would do if they really wanted to ban late-term D&X abortions.
But of course, that’s not what they want. They want to keep the partial-birth issue alive forever; actually banning anything would be counter-productive.
* * *
A final note: it may be fair to oppose particular, badly worded health exemptions; but it is irresponsible and immoral to oppose all health exemptions, regardless of the wording.
Sebastian, face reality – not every health exemption claimed is bogus. In the real world, pregnancies sometimes go wrong and are dangerous. Please address this question directly: Are you seriously prepared to deny women with genuine health needs the medical help they need to avoid crippling pain, internal damage, and infertility? Because that’s what the legislation you favor would do to at least some women, if it were constitutional (which, fortunately, it probably is not).
Pro-lifers will never escape their reputation as woman-hating fanatics as long as they?d rather see a woman crippled and infertile than permit her to get the medical help she needs for health reasons. And that’s as it should be – opposing the health exemption for women who need it, on the grounds of speculative abuses, is barbaric.