Politics & Policy

Biden, Harris, and Abortions Late in Pregnancy

Kamala Harris speaks to reporters as Joe Biden looks on in Wilmington, Del., August 13, 2020. (Carlos Barria/Reuters)
Yes, the Democratic ticket would protect abortion at any stage of pregnancy.

Do Joe Biden and Kamala Harris believe that abortion should be legal even late in pregnancy? Here are four pieces of evidence that suggest the answer is yes.

First: Biden and Harris are strong supporters of Roe v. Wade.

Roe requires that abortion be permissible even at the end of pregnancy whenever a physician believes it necessary to protect a woman’s health. Doe v. Bolton, the companion case to Roe, says 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.” While it has sometimes been suggested that Doe did not intend to say a broad health exception is constitutionally required, subsequent court decisions have insisted on it.

We have reason to think that each year in America, more than 10,000 abortions take place after the 20th week of pregnancy, and that the bulk of these abortions do not take place because of risks to mothers’ physical health or because of fetal abnormality. Yet prosecutions for violating state statutes that appear to prohibit abortion late in pregnancy are vanishingly rare, perhaps because the Supreme Court appears to have made such laws unenforceable.

Biden has said that there will be “a litmus test on abortion” for any Supreme Court justices he nominates. Neither he nor Harris says that the Court should adjust its jurisprudence to allow abortion to be banned late in pregnancy.

Second: Biden and Harris have each sponsored bills that appear to keep abortion late in pregnancy legal even if the Supreme Court were to change its mind.

Harris has sponsored legislation, the “Women’s Health Protection Act,” that explicitly provides for legal abortion after viability when “the treating health care provider” thinks it necessary for the mother’s “health,” and that later adds that all terms in the law should be construed “liberally.” She has also sponsored separate legislation to provide federal funding for abortion, with no time limitation in the bill text; and to require state governments to pay for abortions, again with no time limitation in the bill text. During her presidential campaign, she said that she would require states to show the Justice Department that any changes in abortion policy they intended to make conformed to the Women’s Health Protection Act.

Biden, too, sponsored legislation while in the Senate to make abortion legal after viability when needed to protect “health,” with the text not specifying physical health.

Third: The Democratic platform endorses “reproductive health, rights, and justice,” “including safe and legal abortion,” and opposes “federal and state laws that create barriers to reproductive health and rights.” It endorses taxpayer funding of abortion as well. The endorsements are not qualified, and no limitations based on stage of pregnancy are mentioned.

Fourth: Neither Biden nor Harris says that they believe abortions late in pregnancy should be prohibited.

I see one piece of evidence that Biden does not believe abortions late in pregnancy should be legal. In 1997, he said explicitly that he would like to ban all abortions after viability. But he was speaking in favor of legislation that a) was, by his account, consistent with Roe v. Wade and b) might not have banned any abortions at all.

All in all, then, the evidence justifies the conclusion that Biden and Harris believe abortion should be legal at any stage of pregnancy so long as an abortionist is willing to say it will promote the mother’s emotional health — and journalists who assert otherwise are creating confusion where none need exist.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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