Law & the Courts

Should Any Late-Term Abortion Be Illegal? Democrats Won’t Say.

Senator Richard Blumenthal (D, Conn.) on Capitol Hill in Washington, D.C., May 1, 2019. (Aaron P. Bernstein/Reuters)
Their bill would eliminate almost all limits nationwide.

Congressional Democrats responded to a spate of state laws aimed at restricting abortion on Thursday by reintroducing the Women’s Health Protection Act.

The measure wouldn’t merely prohibit states such as Georgia and Alabama from banning abortion early in pregnancy if Roe v. Wade were overturned. It would also invalidate most state laws limiting late-term abortion, including Pennsylvania’s 24-week limit, under which notorious abortionist Kermit Gosnell was convicted in 2013 for killing 21 infants in utero (in addition to his conviction for murdering three infants with scissors after they had been born). Indeed, it would wipe almost all state limits on abortion, including mandatory waiting period and ultrasound requirements, off the books.

Essentially, congressional Democrats seek to take the standard for late-term abortion proposed earlier this year in Virginia — and shelved after the bill’s chief sponsor Kathy Tran acknowledged it would allow abortion through all nine months of pregnancy if a lone doctor asserted it was necessary for mental-health reasons — and impose it on every state that provides greater protection for unborn children late in pregnancy.

The federal legislation would require states to permit abortion after an unborn child is viable (that is, old enough to survive outside the womb) if a single doctor asserts that an abortion is necessary to protect the mother’s “health.” The text of the bill explicitly instructs the courts to “liberally” interpret the legislation, and the bill “doesn’t distinguish” between physical and mental health, as its chief sponsor Senator Richard Blumenthal of Connecticut has said.

Earlier this week in the Capitol building, I asked Blumenthal why it should ever be legal for a physically healthy baby to be aborted when the mother is physically healthy.

National Review: Is there any reason abortion should ever be legal on a healthy fetus/healthy mother — physically [healthy], that is — after viability?

Blumenthal: I’m not sure what you mean.

NR: Is there any reason [late-term] abortion should be legal when the mother is physically healthy, and the fetus is physically healthy?

Blumenthal: I’m really not going to deal with hypotheticals. We’re reintroducing the Women’s Health Protection Act.

NR: That’s a real situation though. Is there any reason why that should be legal?

Blumenthal: I’m not sure I even know what you mean.

NR: At 23 weeks into pregnancy, should abortion ever be legal if the baby’s healthy and the mother is healthy?

Blumenthal: You know, I just can’t engage in speculation.

NR: I mean, there are studies that say that does happen.

Blumenthal: Send me those studies and I’d be glad to comment.

I sent Blumenthal’s office this 2013 study, conducted by professors at University of California at San Francisco, of women who got abortions later than 20 weeks into pregnancy. According to the study, “data suggest most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.” The study points, for example, to one “woman from Illinois discovered she was 23 weeks pregnant and had her abortion the same week.” Given ample time to comment, Blumenthal’s office has not replied.

Every Senate Democrat running for president has endorsed the Women’s Health Protection Act. When Cory Booker and Elizabeth Warren were asked this week if abortion should ever be illegal, both 2020 presidential candidates dodged the question. Booker told me he’d like to “codify Roe v. Wade,” but when I asked him if any abortion should ever be illegal, he went silent. “You’re a very good, dastardly good, guy,” Booker finally said with a smile when I asked him if his silence should be interpreted as a “no.” Warren simply stuck to her talking point that she wanted to make Roe v. Wade a federal statute when she was asked if any late-term abortion should ever be illegal.

Here’s how their colleague Sheldon Whitehouse of Rhode Island responded to a question about elective abortions 23 weeks into pregnancy: “Most of these decisions should be made by doctors, and I don’t know many doctors who are into — what do the extremists call it — infanticide? Never met a doctor who’s for that — never once.”

But doctors do perform elective late-term abortions. Dr. LeRoy Carhart was caught on tape saying he’d perform “purely elective” abortions up until 28 weeks into pregnancy. Another doctor named James Pendergraft has said he’d perform even later abortions under an “anxiety and stress” health exception. Dr. Cesare Santangelo said he would let an infant born alive at 24 weeks after an attempted abortion suffocate to death. Dr. Steve Brigham kept a freezer full of aborted babies, one as old as 36 weeks. Some infants born at 22 weeks grow up to be healthy children and adults.

And of course there was Dr. Kermit Gosnell, who had likely murdered hundreds of infants born alive, in addition to the three murders for which there was enough evidence to convict him.

What’s the moral difference between what Kermit Gosnell did to babies born alive and a legal abortion at 23 weeks? That’s a question Nancy Pelosi could not answer after Gosnell was convicted in 2013. Cecile Richards, then president of Planned Parenthood, defended late-term abortion when the child is suffering from a severe abnormality. But what about when the child and mother are physically healthy? Richards went silent.

This isn’t a gotcha question. It’s a question about fundamental human rights. There are likely thousands of elective abortions performed later than 20 weeks into pregnancy each year. If leading Democrats and advocates of a right to abortion are unwilling or unable to defend a right to abort healthy infants late in pregnancy, then why are they so committed to maintaining America’s status as one of seven countries in the world that allows it?

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