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Voices / Counterpoint

The spurious arguments around ‘late-term abortions’

No woman decides to have an abortion after 24 weeks recklessly or without a great deal of anguish

Elayne Clift has written about women, politics and social justice issues from the earliest days of this newspaper. For more of her work, visit elayne-clift.com/blog/.

Saxtons River

RE: “Far beyond Roe v. Wade” [Viewpoint, Feb. 6]:

As a longtime women’s-health educator and advocate, I must address the deeply misguided view of Richard Morton with respect to the critical point we have reached in this country regarding abortion.

Mr. Morton makes many spurious and false assertions in his op-ed, but the most egregious of these is his claim that “the bill goes far beyond Roe [v. Wade], guaranteeing unrestricted abortion through all nine months of pregnancy.” This assertion calls for revisiting numerous facts regarding the inaccurate term “late-term abortion.”

The first thing to note is that abortion after fetal viability is a rare occurrence.

According to the U.S. Centers for Disease Control and Prevention, abortions after 21 weeks make up less than 1.3 percent of all abortions performed in the United States. Those that occur beyond 24 weeks make up less than 1 percent of all procedures.

Exceptionally rare cases that happen after 24 weeks often happen because a fetus has a condition that cannot be treated, rendering it unable to survive, regardless of gestational age or trimester.

Secondly, the 14th Amendment of the Constitution, which guarantees due process and equal protection under the law, was vital to the 1973 Supreme Court decision in Roe v. Wade. The 14th Amendment also protects the right to privacy, and the Court held that a woman’s right to an abortion fell within that statute.

By a 7–2 majority, the Supreme Court ruled that unduly restrictive state regulation of abortion were unconstitutional. Importantly, it also determined the point of fetal viability as the “capability of meaningful life outside the mother’s womb.”

The Court’s decision gave a woman a right to abortion during the entirety of the pregnancy and defined different levels of state interest for regulating abortion in the second and third trimesters.

* * *

Thirdly, it’s important to know that, as the Guttmacher Institute points out, if a physician determines that the child is “non-viable” and/or the abortion is necessary for the physical or mental health of the mother, a woman can have an abortion from the moment of conception until the child’s birth.

State laws restricting third-trimester abortions are unconstitutional under the precedent of Doe v. Bolton, a case in Georgia in which the Supreme Court overturned a state law.

Numerous states have laws that ban or restrict abortions in the third trimester. Because these statutes remain on the books or have not yet been contested in federal court, they may imply that they are allowed by federal law.

But because federal law trumps state law, no restrictions can be enacted that do not also allow the doctor to determine if abortion is necessary for the “health of the mother.”

Here’s another fact: Overturning Roe and Doe won’t end all third-trimester abortions. When the Supreme Court throws the abortion issue back to individual states, third-trimester abortions will still be protected in states that reiterate prior standards for “viability” or “health.”

* * *

But here’s the most important thing for Mr. Morton and others to know. No woman decides to have an abortion after 24 weeks recklessly or without a great deal of anguish.

Perhaps she does it because of a serious illness she has, like decompensated heart disease. Maybe her baby has a delayed diagnosis of anencephaly, which means the fetus forms without a complete brain or skull.

A multitude of medical crises can precipitate a third-trimester abortion. But the decision is never taken lightly. In most cases, there is deep grieving and a profound sense of loss, brought about because of medical necessity or the wish that a much-loved and much-wanted baby not suffer.

That’s why people like Mr. Morton — who claims that he “doesn’t oppose or seek to diminish women’s rights” and that he “supports [women’s] right to their own body and right to choose” — misunderstand not just the right to abortion but the reasons women choose it, at any stage of pregnancy.

They must move beyond facile arguments, misstatements of fact, and feeble justifications. They must somehow begin to recognize that for many women, the choices they face are devastating and immensely complicated.

They must find it in themselves to be compassionate — most especially when they identify themselves as God’s people.

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Originally published in The Commons issue #498 (Wednesday, February 20, 2019).

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