Partial birth abortion, Part 2

Kindness and truth shall meet, justice and peace shall kiss. -- Psalm 85:10 (NAB, 1st ed.)

"Justice and Mercy" by sculptor Glynn Acree,
in the courtyard of the Cumberland School of Law,
Samford University, Birmingham, Alabama.

In my first post on partial birth abortion, I started to respond to some of the questions and comments posted by one of my Facebook friends in response to a post I had made the morning of the election regarding a candidate's stand on partial birth abortion. That response was getting pretty lengthy, though, so I decided to break it up to make it a bit more readable. (An act of mercy to both of us! :-))

When I came upon this photo of this beautiful statue, I knew that it was perfect for this post, partly because I am going to be dealing with the two 1973 Supreme Court cases that legalized abortion in the U.S. I also love it, though, because it reminds me of the Scripture quote at the top of this post, which I pray will guide all my discussions and conversations on this and other "hot topics" from this time forward. Holy Spirit, help!

When I left off my first post, I mentioned the common understanding that partial birth and other late-term abortions occur only in the case of fetal abnormality, when the fetus is highly unlikely to survive after birth, or when the life of the mother is at stake. To address this, we first need to review two important holdings of the two U.S. Supreme Court cases that legalized abortion in the U.S.

Most people are familiar with the fact that in Roe v. Wade the U.S. Supreme Court held the following:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life [410 U.S. 113, 165]   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.[1]

Many people do not realize, however, that there was a companion case to Roe called Doe v. Bolton. In their opinion on Roe, the justices explicitly said, "That opinion [Doe] and this one, of course, are to be read together."[2]

In Doe v. Bolton, the Supreme Court held that

We agree with the District Court, 319 F. Supp., at 1058, that 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. All these factors may relate to health. [3]

In the years following the Roe and Doe decisions, this broad definition of "health" effectively led to abortion on demand through all 9 months of pregnancy. It allowed a physician to judge that any of the factors listed in Doe could justify making an exception to a regulation and performing an abortion.

One of the few laws that has been able to restrict this definition of health was the Partial-Birth Abortion Ban Act of 2003. The act states that the prohibition on partial birth abortions "does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself." [4]

The ban was immediately challenged, in part because of the limit of the exception to the mother's physical health. When the case went to the Supreme Court in Gonzales v. Carhart, the ban was upheld. Justice Anthony Kennedy, writing for the majority, stated

The Court assumes the Act's prohibition would be unconstitutional, under controlling precedents, if it "subject[ed] [women] to significant health risks." Id., at 328. Whether the Act creates such risks was, however, a contested factual question below: The evidence presented in the trial courts and before Congress demonstrates both sides have medical support for their positions. ... Other considerations also support the Court's conclusion, including the fact that safe alternatives to the prohibited procedure, such as D&E, are available. In addition, if intact D&E is truly necessary in some circumstances, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act's prohibition only applies to the delivery of "a living fetus"... [5]

Nevertheless, in light of the fact that there were over 13,000 abortions after 21 weeks of pregnancy in 2011 (as noted in my previous post), are these abortions truly taking place only in exceptional situations of fetal abnormality or when the life of the mother is at risk? Until recently, it has been very difficult to answer that question, but a study published in the December 2013 issue of Perspectives on Sexual and Reproductive Health provides a clue.

According to the abstract of the article available on the Guttmacher Institute web site, the study, as part of a larger study, compared 272 women who received an abortion at or after 20 weeks’ gestation with 169 who received first-trimester abortions at 16 facilities across the country in 2008–2010. In summarizing the results, the authors wrote, "Most women seeking later abortion fit at least one of five profiles: They were raising children alone, were depressed or using illicit substances, were in conflict with a male partner or experiencing domestic violence, had trouble deciding and then had access problems, or were young and nulliparous."[6]

Dr. Elizabeth Johnson of the Lozier Institute, in commenting on this study, noted that this study "marks a notable departure from previous statements by abortion rights advocates that late-term abortions were rarely elective.  ... The authors acknowledge that, in fact, wider 'data suggests that most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.'"[7]

Well, it's getting late and I haven't even yet addressed the crucial question of, what about the women for whom a partial-birth abortion -- or any abortion, really -- is truly a matter of life and death? And what about the many others facing challenging situations for which abortion seems to be the only solution? But my brain is starting to shut down, so there's no way that I'm going to be able to get to those questions tonight. So I guess there will be a Part 3 at a date to be determined, hopefully in the not-too-distant future. Until then, may God bless you abundantly and keep you in His care!


Footnotes:
[1] Roe v. Wade, 410 U.S. 113 (1973), XI.1. Retrieved on November 13 2016 from http://caselaw.findlaw.com/us-supreme-court/410/113.html#t67.
[2] Roe v. Wade, 410 U.S. 113 (1973), XI.2. Retrieved on November 13 2016 from http://caselaw.findlaw.com/us-supreme-court/410/113.html#t67.
[3] Doe v. Wade, 410 U.S. 179 (1973), IV.C. Retrieved on November 13 2016 from http://caselaw.findlaw.com/us-supreme-court/410/179.html.
[4] S.3 - Partial-Birth Abortion Ban Act of 2003, Sec. 3.a. Retrieved on November 13 2016 from https://www.congress.gov/bill/108th-congress/senate-bill/3.
[5] Gonzales v. Carhart, 550 U.S. 124 (2007), 3.(b). Retrieved on November 13 2016 from http://caselaw.findlaw.com/us-supreme-court/550/124.html.
[6] Foster, Diana Green, and Kimport, Katrina, "Who Seeks Abortions at or after 20 Weeks?", Perspectives on Sexual and Reproductive Health, December 2013. Retrieved on November 13 2016 from http://caselaw.findlaw.com/us-supreme-court/550/124.html.
[7] Johnson, Elizabeth, "The Reality of Late-Term Abortion Procedures," January 20, 2015. Retrieved on November 13, 2016 from https://lozierinstitute.org/the-reality-of-late-term-abortion-procedures/.