Lara Schwartz claims that a recent National Review editorial exaggerated the scope of the abortion license created by the Supreme Court (“simply false,” she writes). Her argument is hard to square with the actual words of the Court’s decisions.
To review: Roe v. Wade says that the state may “regulate, and even proscribe” abortion after viability “except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Two sentences later Justice Blackmun’s majority opinion refers to Doe v. Bolton, another Blackmun-written decision handed down the same day, saying the two, “of course, are to be read together.” In Doe, Blackmun writes 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 well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman” — for the benefit, that is, of the pregnant woman seeking an abortion.
How does Schwartz handle the difficulties these passages of the two decisions create for her argument? By ignoring those passages completely. Does she provide evidence that states and localities have been able to prosecute late-term abortions in places where statutes purport to prohibit them? No, she doesn’t, because with a handful of bizarre exceptions (in which defendants facing other charges failed to raise constitutional claims about late-term abortions), they haven’t.