Does Hillary Clinton believe that abortion should be legal even very late in pregnancy? Senators Marco Rubio and Ted Cruz are among those who have said she does, and several “fact-checkers” have denied it – most recently W. Gardner Selby at PolitiFact Texas. (I came across Selby’s article via David Harsanyi’s debunking of it.) The fact-checkers are both wrong and out of their depth.
Selby notes that Clinton has on several occasions said that she would be willing to restrict late-term abortions and partial-birth abortions so long as an exception were made to protect the health of the mother. Pro-lifers have generally dismissed those comments because health has been defined so broadly that a ban with such an exception is unenforceable.
In Roe v. Wade, the Supreme Court held that governments could restrict abortion late in pregnancy so long as they made an exception for health. In the companion case of Doe v. Bolton, Justice Blackmun, the author of Roe, said a little more about health:
Whether, in the words of the Georgia statute [at issue in this case], “an abortion is necessary” is a professional judgment that the Georgia physician will be called upon to make routinely.
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. 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 [seeking an abortion].
Every once in a long while, news accounts convey the import of this language: “If a patient’s ‘emotional well-being’ was reason enough to justify an abortion, then any abortion could be justified.”
But Selby does not quote the relevant language from Doe. Instead he attributes the view that health “could” encompass emotional health to a pro-life law professor, and parries it by citing two liberal law professors who say that doctors could lose their medical licenses or “face criminal charges if the judgment that an abortion was needed to protect the woman’s health was later found inappropriate.” One of those law professors e-mailed Selby to say, “Physicians do not take these significant potential penalties lightly.”
Clinton favors legal (and subsidized) abortion throughout pregnancy.
A few questions that don’t seem to have crossed Selby’s mind: How would a prosecutor be able to overcome a defense rooted in the abortionist’s claim that a late-term abortion was needed to protect the mother’s emotional health? Is there any evidence that abortionists have been prosecuted or lost their medical licenses in this way? (I have read of only two successful prosecutions for illegal late-term abortions since Roe: those of the “Butcher of Avenue A” in New York in the early 1990s and of Kermit Gosnell in 2013, both of whom were also convicted of many other counts.) Is a law professor’s say-so an adequate substitute for actual evidence on how abortionists behave?
Selby’s discussion of partial-birth abortion, meanwhile, omits key facts and misstates others. He says that the federal ban on partial-birth abortion contains no exception for the life of the mother. Not true: The text of the law states that the ban “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.”
#related#Democratic versions of the partial-birth-abortion ban have also included broad “health” exceptions that would make bans unworkable. Dr. Warren Hern, who performed partial-birth abortions, said that if such versions of a ban passed he would say that any partial-birth abortion he wished to perform was still legal because it lowered the risk of death (Frank Murray, “Daschle Ban May Not Ban Anything; Abortionists Could Use Own Judgment,” Washington Times, May 15, 1997). Selby ignores this point, taking Clinton’s claim to favor a ban with an exception at face value.
Given her support for Roe, given Roe’s incorporation of a broad health exception, and given her record on partial-birth abortion, Cruz, Rubio, and others are justified in saying that Clinton favors legal (and subsidized*) abortion throughout pregnancy. They would also be justified in saying that she tries to obscure the fact, with help from the media’s “fact-checkers.”
– Ramesh Ponnuru is a senior editor of National Review.
* Selby writes about this question too. “Clinton will ‘repeal the Hyde amendment to ensure low-income women have access to safe reproductive health care.’ That’s potentially a call for more federally funded abortions in that the Hyde amendment, regularly embraced by Congress since 1976, bars government funding of abortion through Medicaid except in cases of rape, incest or to save the health or life of the mother.” Potentially? What else could it be?