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Supporters of Planned Parenthood watch Vermont state representatives debate a bill that would preserve current federal rights to abortion access under state law. The legislation, H.57, passed the House on Feb. 21 and is now under consideration by the Senate Committee on Health and Welfare.

Voices / Column

For many women, choices are devastating and complicated

Abortion after fetal viability is a rare occurrence and usually involves a medical crisis

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/. This column is a reprisal of a Counterpoint she wrote in response to {xref}, originally published Feb. 20. A technological gremlin obliterated 187 words of her piece (and in the process inadvertently created the absurdity of the “precedent of anencephaly”), for which we apologize.

Saxtons River

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

As a longtime women’s health educator and advocate, I was apoplectic when I read a recent commentary in The Commons [“Far beyond Roe v. Wade,” Viewpoint, Feb. 6] by a “chaplain serving an elderly population” who is also treasurer of the Republican Party in my state and a county party chair.

The op-ed proffered so many spurious and false assertions, often stated by others with far-right political views, that my hair was nearly on fire.

This is the claim that blew me away. It relates to a bill in my state proposing a law like ones in some other states protecting a woman’s right to abortion moving forward.

“The bill goes far beyond Roe [v. Wade], guaranteeing unrestricted abortion through all nine months of pregnancy,” the author wrote.

This misleading claim calls for revisiting the facts regarding the use of the inaccurate term “late-term abortion.”

* * *

The first thing to note here is that abortion after fetal viability is a rare occurrence and usually involves a medical crisis.

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

Exceptionally rare cases that happen after 24 weeks are often because a fetus has a condition that cannot be treated and that renders the fetus 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 Court ruled that unduly restrictive state regulation of abortion is unconstitutional. Importantly, it also determined the point of fetal viability as the “capability of meaningful life outside the mother’s womb,” hence the 24-week marker.

The Court’s decision gave women a right to abortion during the entirety of the pregnancy, however, while defining different levels of state interest for regulating abortion in the second and third trimesters.

* * *

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 which the Supreme Court overturned a Georgia law.

Numerous states have laws that ban or restrict abortions in the third trimester. Because these statutes remain in place or haven’t 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 everyone 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.

There are a multitude of medical crises that 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 and the wish that a much-loved and much-wanted baby not suffer.

That’s why people like the man who wrote the troubling commentary — claiming 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.

Such people 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.

Most urgently, they must find it in themselves to be compassionate and to resist judging those whose experiences and viewpoints differ from theirs.

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Originally published in The Commons issue #501 (Wednesday, March 13, 2019). This story appeared on page D1.

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