by Amy Sullivan in the Washington Monthly. Sullivan was a staffer for Tom Daschle when the senator floated a “compromise” on partial-birth abortion. The idea was to outlaw late-term abortions–whatever the procedure used–with an exception for maternal health. She argues that the Democrats, and pro-choicers, made a real political mistake in not embracing this idea. But she misstates the pro-life objection to it.
She writes, “Devout anti-abortion senators refused to consider the [compromise] if it included a health exception, claiming that any allowance for health was simply a loophole. This belief is based on a willful misinterpretation of abortion law by anti-abortion leaders, who have promoted the idea that doctors are obligated to consider ‘emotional, psychological, familial, and physical’ factors when they consider a woman’s health. In fact, Doe v. Bolton, the companion case to Roe that is generally understood to have provided the foundation for determining what health is in the context of abortion, says that doctors may consider those factors as pertinent to a woman’s health, not that they must.”
I won’t follow her uncharitable lead by saying that Sullivan’s error here is “willful,” but it is an error. The health exception is a loophole regardless of whether doctors are mandated to consider psychological factors or merely allowed to. The point is that Doe allows abortion–and requires the law to allow abortion–whenever a doctor can say that a failure to abort would have negative emotional consequences; and the same would have been true of the Daschle bill. I doubt the bill would have led to a single successful prosecution.