[Today's guest post by Chris Rostenberg is part of our paid blogging program.]
When I first heard, in the 1990’s, that abortion was legal through all nine months of pregnancy, I couldn’t believe it. If that were true, why would it not be common knowledge? Why would there be debate over where life began?
I had just abandoned the pro-choice movement and was researching the pro-life position. I was finding most of what they said quite persuasive. But how could abortion be legal until birth? Many other people who I have spoken to also could not believe the law could be so extreme. So I snuck into a local law library and read Roe vs. Wade—and, importantly, I also read its companion case, Doe vs. Bolton. I discovered that the pro-lifers were telling the truth: abortion really is legal through all nine months, in every state, for any reason, and has been since 1973.
Either by design or by accident (and my vote is for the former), our law is confusing in the extreme. The Supreme Court in Roe vs. Wade made it seem as if only early abortion was legal, saying that the states, if they wished, could make late abortion illegal. They can’t. The moderate-sounding threads of the Roe opinion are completely unraveled in Doe.
The details are important. Roe said the states could make third trimester abortion illegal unless the woman’s “life or health” was endangered. (We should already be suspicious; why mention “life” if “health” is enough to get a third trimester abortion? If a woman’s life is endangered, surely her health is too.) The Roe opinion says that it should be "read together" with Doe—and in Doe, the Supreme Court defined “health” as “all factors, physical, emotional, psychological and familial," including the woman’s marital status and age.
So to recap, the states can prohibit late abortion... except when one of “all factors” comes to pass. Which is a really convoluted way of saying that the states cannot prohibit late abortion.
The Justices did not need to write their opinions in such a confusing way, of course. The whole thing could have been resolved by including the definition of "health" within the main Roe opinion. The only reason to go about it the way they did is to make it easier for the abortion movement, and its allies in the media, to conceal how extreme the law is.
To take but one example: in his presidential debate with Senator McCain, then-Senator Obama said, “I am completely supportive of a ban on late term abortion … as long as there’s an exception for the woman’s health and life.” As a former law professor, Obama knew exactly what that really meant. But McCain had trouble explaining the health loophole, because it's too complicated to fit into a 15-second sound bite.
The Supreme Court backed off slightly in Gonzales v. Carhart, the partial-birth abortion case, but for all other abortion methods the "health" loophole remains wide enough to drive trucks through. We'll soon find out whether or not the current Court is committed to keeping up the charade. In recent years, several states, working together with pro-life legal scholars, have passed laws banning abortions after 20 weeks. One or more of those laws will surely find its way to the High Court, and when it does, we must take full advantage of the opportunity to educate the public. Because for over 40 years, the media has consistently failed to accurately report on the reality of American abortion law. If it had, people would know that Doe instituted legal abortion through all nine months of pregnancy. As it stands, many Americans have never even heard of Doe!