Questions for Glenn Kessler on Late-Term Abortion

I n his latest column, Washington Post fact-checker Glenn Kessler takes up the claim that Democrats support legal abortion “up until the moment of birth.”

It is very interesting — and quite revealing — that Kessler doesn’t render a firm judgment about the truth of that claim. Rather, Kessler writes:

The GOP attacks are disingenuous at best. They imply that late-term abortions are common — and that they are routinely accepted by Democrats.

The reality, according to federal and state data, is that abortions past the point of viability are extremely rare. When they do happen, they often involve painful, emotional and even moral decisions.

Finding common ground on basic facts in this debate is not easy.

Kessler cites two statements from Republican candidates — Marco Rubio and Blake Masters — attacking their Democratic opponents for backing abortion until birth, but neither Republican statement suggests anything about how “common” those abortions are.

Most of Kessler’s column nevertheless focuses on how many late-term abortions there are each year, providing estimates that “at least 10,000 [abortions] occur after 20 weeks.” This is a small percentage — about 1 percent — of all abortions performed annually. But it is horrifyingly common for anyone who views an elective abortion at 22 weeks of pregnancy as morally equivalent to killing a baby born alive at 22 weeks. Does Kessler think it is “disingenuous” for politicians to focus on school shootings, even though they constitute a small percentage of America’s 20,000 annual homicides committed with firearms? Does Kessler think it is “disingenuous” for a Democrat to claim his GOP opponent opposes abortion “even in cases of rape,” because such cases only account for 1 percent of all abortions?

And is it true that Democrats support legal abortion until birth? Kessler doesn’t really say. He presents Democratic claims that support some limits late in pregnancy, while he notes this response from Rubio’s spokesperson Elizabeth Gregory:

Gregory suggested that “health” was an escape hatch that permitted abortion at any point. A Supreme Court case, Doe v. Bolton, decided the same day as Roe v. Wade, concluded that a medical professional may decide that “health” in the context of abortion could relate to “all factors physical, emotional, psychological, familial, and the woman’s age.”

Kessler doesn’t render a firm judgment on the accuracy of that statement either, and concludes his column by writing: “The campaign rhetoric suggests such late-term abortions happen frequently. The truth is that they do not — and involve difficult, heart-wrenching circumstances glossed over in political ads.”

Again, Rubio never made a statement about the frequency of late-term abortions. Kessler’s focus on that matter seems to be an attempt to escape the conclusion that the substance of Rubio’s argument is correct — something that Kessler implicitly acknowledges elsewhere in the article. A spokesperson for the Center for Reproductive Rights told Kessler that many European countries have “very broad exceptions” to their legal limits on abortion, including exceptions for abortions deemed necessary to preserve the mother’s “mental health.” Kessler writes:

Germany, for instance, on paper has a 12-week limit for abortion on request — but the law in reality permits abortions as late as 22 weeks after conception (24 weeks gestation). A woman can seek an abortion that late when, after counseling, she determines an abortion would avert “grave impairment to the pregnant woman’s physical or mental health and if the danger cannot be averted in another manner which is reasonable for her to accept,” section 218 of the criminal code says. [Emphasis added.]

So, according to Kessler, because the law in Germany has a mental-health exception until 22 weeks, it effectively “permits abortions as late as 22 weeks after conception.” But the Women’s Health Protection Act — the bill backed by almost all congressional Democrats including Val Demings, the challenger for Rubio’s Senate seat — has a mental-health exception from viability until birth:

[The WHPA] mandates legal abortion after viability until birth whenever a lone health-care provider — a term not limited to doctors — determines that the continuation of the pregnancy “would pose a risk” to the patient’s life or “health.” The WHPA’s chief sponsor in the Senate has acknowledged the legislation “doesn’t distinguish” between physical and mental health, and the text of the bill instructs the courts to “liberally construe” the provisions of the act. Courts would therefore look to the definition of “health” found in Roe’s companion case, Doe v. Bolton: “physical, emotional, psychological, familial, and the woman’s age. . . . All these factors may relate to health.

There really can be no doubt that courts would interpret the definition of health in the WHPA to include mental health. According to the Guttmacher Institute, under Roe and Doe:

• even after fetal viability, states may not prohibit abortions “necessary to preserve the life or health of the mother”;
• “health” in this context includes both physical and mental health.

If Kessler applies the same logic to the Democrats’ abortion bill as he does to abortion law in Germany, how can he avoid concluding that “in reality” Democrats would permit abortion throughout all nine months of pregnancy?