Time to Make the Partial-Birth Abortion Case Clearly

by Teresa Wagner

January, 2000 - With the United States Supreme Court now poised to hear its first abortion case in eight years, and with thousands of Americans descending on the Capitol tomorrow to protest Roe vs. Wade, it is clear abortion will be a high-profile issue in the coming months.

Despite almost constant media attention, however, widespread and understandable confusion still exists about what American abortion law says, and what American abortion practice is. What's worse, candidates who claim to be against abortion are content to express vague opposition to Roe, without taking the time to explain the decision and why it worth opposing. This is most unfortunate. Every appearance is an occasion to inform the public about the present legal reality and our shared obligation to respond to it. Candidates might consider mentioning the following:

First, abortion is legal for any reason during all nine months of pregnancy, including delivery in most states. Anyone with a public platform should be informing audiences of this, since most Americans don't know, much less support, our present abortion policy, among the most extreme in the Western world.

While American law in the area of abortion is a combination of both state statutes and federal law, the legal status of abortion is based on United States Supreme Court decisions. The 1973 Roe vs. Wade decision is the most cited case, since Roe actually announced a federal constitutional "right" to abortion. But it was Roe's companion case, Doe vs. Bolton, that established the scope of this new right.

Doe held that abortion must remain legally available to women at any stage in pregnancy for so-called "health" reasons. Health was broadly defined to encompass anything "relevant to the well-being of the patient . . . including all factors - physical, emotional, psychological, familial and the woman's age." Thus, health became the exception that swallows the rule. By this definition, pregnancy itself becomes a health justification for abortion. In addition, the one who performs and gets paid for the abortion determines whether the abortion is needed for health reasons, creating an obvious conflict of interest.

Statements that abortion is legal only in the first three months of pregnancy are false, as are statements that a particular state does not allow abortions beyond a certain point. The legality of even the latest abortions is guaranteed by the Supreme Court's expansive health definition in Doe.

Indeed, abortion advocates now complain only about abortion access, not legality. As Judge Danny J. Boggs of the 6th U.S. Circuit Court of Appeals stated in reviewing Ohio's partial-birth abortion ban: "At oral argument, counsel for the abortionists asserted . . . their position that these legal principles . . . pose no barrier to any woman seeking an abortion at any time for any purpose." Ohio was the first of 30 states to enact a ban on partial birth abortion, a procedure that kills the child as it is delivered. But courts have invalidated almost all such bans, leaving the human infant unprotected from abortion even during delivery. (Nebraska's law is at issue in the upcoming Supreme Court case.)

Second, this policy of abortion on demand throughout pregnancy and beyond came from our judiciary, which is highly supportive of abortion on demand. But it is to the American public that candidates must appeal. Candidates should remember that almost every opinion poll shows citizen support for protecting the child in pregnancy, as do the many state laws on abortion (the enactment of state partial-birth abortion bans is just the most recent example).

Third, the real goal of the pro-life effort is to protect and care for both mother and child: not the child to the exclusion of the mother, nor the mother to the exclusion of the child. This is not impossible. Indeed, healthy pregnancy is instructive: Mother and child thrive together. They also suffer together.

That abortion is destructive to women as well as children is now well established. According to Dr. Joel Brind, of New York's Baruch College, the link between abortion and breast cancer is now undisputed. Reports of physical injuries and deaths at clinics are already alarmingly common. In a single three-year period, for example, two women (Lisa Bardsley and Lou Anne Herron), died from abortions at the Woman's A to Z Clinic in Phoenix. And clinics themselves have pamphlets detailing post-abortion problems, including guilt and depression.

Abortion is, of course, a fundamentally destructive act. It destroys not just a child, but a part of the child's mother as well. The authentic pro-life effort therefore helps mothers as well as infants.

Finally, abortion is a question of human rights, and should be discussed as such. Human rights exist before and beyond government: They do not vary with location, nor do they depend on citizenship. Yet abortion advocates insist we accept the destruction of some human beings solely because of their location: They live within their mothers. (It is no small irony that nature placed the human child there precisely for protective purposes.) Millions of Americans have reacted to abortion just as anyone would to the dismemberment of a newborn infant - because abortion is the very same thing, only occurring within the womb rather than outside it.

If ever our law and culture are to protect the mother and child in pregnancy, it will be because the nation as a whole understands why this should be so. That requires persuasion, compassion and leadership on the part of candidates. It is time for them to actually make the pro-life case.

Teresa R. Wagner is a policy analyst for life and human rights issues at Family Research Council.

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