Politics & Policy

His Mythical Law

Bill Clinton has spent his adult life misinterpreting the legal status of abortion.

“I thought then, and still believe, that Roe v. Wade is the most difficult of all judicial decisions,” the former president writes in his newly released memoir, My Life. He is explaining why he spent two weeks of a constitutional-law course on the 1973 ruling that legalized abortion while teaching at the University of Arkansas, Little Rock, in 1975.

Apparently, the decision is so difficult even former Rhodes Scholar Clinton doesn’t get it.

In My Life (page 229), he writes:

In Constitutional Law, I spent two full weeks on Roe v. Wade, the Supreme Court decision that gave women a constitutional privacy right to an abortion in the first two trimesters of pregnancy, the approximate amount of time it takes a fetus to become “viable”–that is, able to live outside the mother’s womb. After viability, the Court ruled, the state could protect a child’s interest in being born against the mother’s decision not to have it, unless her life or health would be threatened by continued pregnancy or childbirth.

That’s a frequent misinterpretation of Roe v. Wade, as Ramesh Ponnuru explained concisely earlier this year in an NRO piece on Wesley Clark’s misunderstanding of the legal status of abortion in America:

There’s a widespread myth that Roe allowed abortion to be prohibited in the third trimester so long as an exception was made for maternal health. The companion case Doe v. Bolton takes away that apparent concession, since it says that “health” has to be defined to include, among other things, emotional and familial factors. Casey did not modify this essential holding of Roe. States may be able to regulate abortion in some ways–they can pass some kinds of parental notification laws, for example–but they cannot prohibit abortion at any stage of pregnancy.

You don’t have to take Ponnuru’s word for it.

Go to the Court’s ruling in Doe and take a look for yourself. “Health” is defined there as including “all factors–physical, emotional, psychological, familial and the woman’s age–relevant to the well-being of the patient.” As medical doctor and then-Washington Post medical writer Dr. David Brown concluded in a column in 1996, “Because of this definition, life-threatening conditions need not exist in order for a woman to get a third-trimester abortion.” (The National Right to Life Committee has been chronicling and debunking the trimester myth for years now.)

Even granting to Clinton that he’s using the word “health” as a term of art, his reading of Roe is hard to square with the Supreme Court’s partial-birth-abortion decision (a decision his administration supported). Stenberg v. Carhart makes it quite clear that an abortion regulation is not just impermissible if some abortionist thinks that an abortion is necessary to preserve a woman’s vaguely defined health. There need be no finding that continued pregnancy threatens her in any way. Now the rule is that no abortion regulation is permissible if it rules out the safest method of abortion. The right to a dead baby is a given, in all three trimesters.

That Clinton peddles his mythical reading of the 1973 Roe decision is not a shock. When the president vetoed a ban on partial-birth abortion in 1996, he alluded to to a health exception in Roe. He is also on record that year explaining that he would support a ban on late-term abortions that included health exceptions, but not health exceptions such as “emotional stress, financial hardship or inconvenience.” So maybe he’s just never read Doe.

If you happened to have learned constitutional law from Professor Clinton in the 1970s, you might look into whether you can get a refund.

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