Abortion: The Terms Of Debate

Lee may be correct that Alabama needs to revise the regulations for abortion clinics. But he is dead wrong when he says this:

late-term abortions – those that occur during the third trimester of pregnancy – will remain legal in Alabama indefinitely. Unfortunately, there’s little that Alabama, or any other state, for that matter, can do about this tragic situation. For all practical purposes, states must condone abortion on demand throughout all nine months of pregnancy…thanks to the United States Supreme Court.

On the contrary, Scotus has said on more than one occasion that states are free to ban what Lee calls late term abortions, and Alabama has done just that.

Late term abortions are a felony in Alabama. Section 26-22-3 of the Alabama Code states:

no person shall intentionally, knowingly, or recklessly perform or induce an abortion when the unborn child is viable.

Doing so is a Class A felony, unless:

[The] abortion is performed by a physician and that physician reasonably believes that it is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman.

Furthermore, even where the health exception applies, under the same section of the code, the doctor commits a Class C felony if he aborts the viable child without taking the following steps:

(1) The physician performing the abortion certifies in writing that, based upon his or her medical examination of the pregnant woman and his or her medical judgment, the abortion is necessary to prevent either the death of the pregnant woman or serious risk of substantial and irreversible impairment of a major bodily function.

(2) The physician’s judgment with respect to the necessity for the abortion has been concurred in by one other licensed physician who certifies in writing that, based upon his or her separate personal medical examination of the pregnant woman and his or her medical judgment, the abortion is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman.

(3) The abortion is performed in a hospital.

(4) The physician terminates the pregnancy in a manner which provides the best opportunity for the unborn child to survive, unless the physician determines, in his or her good faith medical judgment, that termination of the pregnancy in that manner poses a significantly greater risk either of the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman than would other available methods.

(5) The physician performing the abortion arranges for the attendance, in the same room in which the abortion is to be completed, of a second physician who shall take control of the child immediately after complete extraction from the mother and shall provide immediate medical care for the child, taking all reasonable steps necessary to preserve the child’s life and health.

This is all in accord with the Supreme Court’s statements on the subject. The Court explained the general rules in Stenberg v. Carhart:

We again consider the right to an abortion. We understand the controversial nature of the problem. Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering. Taking account of these virtually irreconcilable points of view, aware that constitutional law must govern a society whose different members sincerely hold directly opposing views, and considering the matter in light of the Constitution’s guarantees of fundamental individual liberty, this Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman’s right to choose. . . . We shall not revisit those legal principles. Rather, we apply them to the circumstances of this case.

Three established principles determine the issue before us. . . . First, before “viability the woman has a right to choose to terminate her pregnancy.” . . . .

Second, “a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability” is unconstitutional. . . . An “undue burden is . . . shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” . . . .

Third, “ ‘subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’”

Alabama has done as Scotus said it may do, and chosen to proscribe late term abortions. If late term abortions are occurring, the fault is not the Supreme Court’s. It is Alabama’s. The laws are on the books. If the problem exists, it is because no-one is enforcing the laws.

I’m not arguiing in favor of late term abortions, or even abortion at any time. I am saying that debates ought to be based on the facts. This is a serious issue, and spreading misinformation is no way to resolve it.

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5 Comments on “Abortion: The Terms Of Debate”

  1. Dan Says:

    Hasn’t that third trimester rule been the case forever?

  2. wheeler Says:

    roe anounced the 3d trimester rule. so, yeah, even from the beginning states had a lot of leeway to regulate late term abortions.

    scotus no longer uses the trimester framework, but the idea is the same. the woman’s right to an abortion diminishes as the pregnancy progresses.

    at no point can the state absolutley bad abortions, because there has to be a health exception. but the health exception can be defined pretty narrowly. e.g. it only applies when the mother would die or suffer a permanent injury to a major bodily function unless she had the abortion.

    the net result is that states can severely restrict the right to so called late term abortions.

  3. Kathy Says:

    Late term, or”partial-birth”, abortions are pretty much a straw woman for those who oppose abortion, contraception, and sometimes sex in general. They love to imply that women who are seven or eight months pregnant suddenly decide that, gee, they don’t really want this baby after all and skip off to the abortion clinic on a whim.

  4. Lee P Says:

    Wheeler,

    The health exception required by the Supreme Court is much broader than you admit. According to the Court in Doe v. Bolton, “the medical judgment may be exercised in the light of all factors –physical, emotional, psychological, familial, and the woman’s age — relevant to the wellbeing of the patient.”

    I discussed this in more detail over on my blog, in response to your comment there. I also plan to make a post on it later this week. Briefly, though, my point is that the health exception demanded by the Court is so broad that for all practical purposes, the states must condone abortion on demand throughout all nine months of pregnancy.

    As a reference, you might consult Chapter One Ramesh Ponnuru’s new book, Party of Death. Don’t let the title (or the fact that Ponnuru is a conservative) throw you off. In the first chapter, Ponnuru examines what the Court said in Roe v. Wade, Doe v. Bolton, Planned Parenthood v. Casey, etc. – and how those cases have been applied in the years since they were issued. I think you’ll find that I’m not alone in pointing out just how radical those decisions are – both as written and as executed. There are plenty of legal experts who support Mr. Ponnuru’s conclusion – and not all of them are conservatives.

  5. wheeler Says:

    lee,

    thus far, alabama’s restrictions are constitutional. also, in casey, which is the latest word on the subject, scotus upheld a “health exception” that was pretty similar to alabama’s.

    in short, alabama’s laws are currently valid laws. the problem is that they are not being enforced. would they stand if they were enforced? given the makeup of the federal judiciary today – from the districts through scotus – i think they definitely would.

    imho, the reason for non-enforcement is that those responsible don’t really want to get involved. it sounds good to trumpet restrictions, but no-one really wants to start arresting doctors.


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