Kathy Tran, a Democratic member of the Virginia House of Delegates, would like you to know that she “misspoke.” When a Republican colleague asked whether her legislation would allow a pregnant woman at term and in the middle of labor to have an abortion, she said yes. After a few days of uproar, she attempted a do-over: “I should have said: ‘Clearly, no, because infanticide is not allowed in Virginia, and what would have happened in that moment would be a live birth.’”
In the interim the Democratic governor, Ralph Northam, had offered general support for that legislation, which allows abortion even very late in pregnancy when an abortionist believes it necessary for a pregnant woman’s mental health. Similar legislation has been enacted in New York and is being advanced in Rhode Island. Northam suggested that abortions very late in pregnancy were done only in cases of severe deformity or when the fetus is “not viable.” In such cases, he added, “The infant would be delivered, the infant would be kept comfortable, the infant would be resuscitated if that’s what the mother and the family desired. And then a discussion would ensue between the physicians and the mother.” That discussion would, presumably, concern whether to provide the infant with life-sustaining medical care.
Northam’s remarks heightened the furor, which left him indignant. “I have devoted my life to caring for children and any insinuation otherwise is shameful and disgusting,” he tweeted, alluding to his pre-political career as a pediatric neurosurgeon. Nobody was insinuating anything. His critics were saying that Northam had endorsed infanticide and condemning him for it.
Northam is not the first public official supportive of legal abortion to be accused of supporting infanticide, and not the first to react with an outraged non sequitur. When he was running for president in 2008, Barack Obama was criticized for having voted as an Illinois state senator for legal infanticide. His campaign offered several responses, one of which leaned on his family. “The suggestion that Obama — the proud father of two little girls — and others who opposed these bills supported infanticide is deeply offensive and insulting.”
Obama had, in fact, supported a right to infanticide in some cases, although his campaign, blessed with a pliant press, successfully obscured the issue. The bills he opposed would have clarified that infants who had survived attempted abortions would receive the same legal protections as other human beings. Obama opposed granting those protections to pre-viable infants, thinking it would be logically incompatible with abortion rights. Having two daughters who had been infants did not keep him from taking this position, any more than having two daughters who had been embryos and fetuses kept him from supporting legal abortion.
What Northam, Obama, and Tran have all demonstrated is that the line between abortion and infanticide is blurry, and politicians zealously committed to the former are liable to cross it. While infants are usually at a more advanced stage of development than fetuses, what distinguishes each group from the other as a class is not that fact. An individual infant who was born very prematurely is less developed (often substantially so) than a fetus at term, but it is the former who has legal protection. The distinction turns entirely on location: Inside the womb the developing human organism is a fetus, and outside it an infant.
The Supreme Court’s abortion jurisprudence compounds the confusion because it purports to turn on stage of development but actually turns on location. The Court’s rulings are often thought to require abortion to be legal early in pregnancy but to allow prohibitions later, and it has often claimed that the government’s interest in protecting unborn life increases with fetal age.
But the Court does not allow governments to prohibit abortion at any stage of pregnancy. It requires that any ban on late-term abortion include an exception allowing it when necessary to promote the health of the pregnant woman, with “health” understood expansively to include mental and emotional health. Governments may prohibit particular methods of abortion; the Supreme Court in 2007 upheld the federal ban on partial-birth abortion. But it upheld it in part because other methods remained legal.
Late-term abortion may not be available in many locales, and laws may be on the books in many jurisdictions that appear to ban it, but it is effectively legal everywhere. I am aware of only two successful prosecutions of late-term abortion in the U.S. during the entire period since Roe v. Wade. (In both cases, the abortionists were found guilty of many other crimes and had little incentive to raise a constitutional defense.) We are one of only seven countries worldwide that allow elective abortion throughout pregnancy.
A constitutional rule that a nascent human life can be killed with impunity inside the womb but deserves protection outside it does not track common moral perceptions. To many people, it makes more sense for the right to life to turn on the developmental stage of the baby. Among those people are several academic philosophers whose defenses of abortion have entailed forthright defenses of infanticide. Obama was thinking this way when he denied that nonviable infants should have legal protection.
Even Justice Ruth Bader Ginsburg has tripped over herself when contemplating these issues. In one of the cases involving partial-birth abortion — which tests the Court’s rule because the baby is partially delivered and thus right at the boundary of the abortion right — she wrote (and former justice John Paul Stevens joined) an opinion scoffing at the notion that it was any worse than other methods of abortion that took place entirely within the womb. She argued that a ban on partial-birth abortion but not on morally equivalent abortions was “irrational.”
She cited a decision by Judge Richard Posner that put the point even more plainly: “From the standpoint of the fetus, and, I should think, of any rational person, it makes no difference whether, when the skull is crushed, the fetus is entirely within the uterus or its feet are outside the uterus. Yet the position of the feet is the only difference between committing a felony and performing an act that the states concede is constitutionally privileged.” To the extent the ban was irrational, it is because it was working within the irrational jurisprudence that the Supreme Court itself had created, a jurisprudence that made location a matter of life and death.
Supporters of that jurisprudence are worried that the new conservative majority on the Supreme Court will retreat from it, either overruling Roe and its successors to declare that the Constitution does not protect abortion or allowing prohibitions late in pregnancy. That’s why states dominated by Democrats are moving to place liberal abortion regimes into their statute books. Even if Roe disappears, late-term abortion will still be legal in New York, thanks to its new law. Existing law in Virginia is already permissive, as it is throughout the country; Tran’s bill only modestly relaxed the regulations on late-term abortion. Her initial description of the legislation was accurate, and it serves equally well as a description of both Virginia law and constitutional law nationwide today.
Much of the horror Tran’s bill has elicited is a function of the low public awareness of today’s abortion regime. Even active opponents of abortion, in many cases, do not realize how little the law protects unborn life. The Democrats advancing these laws may have been surprised by the backlash for the same reason: They are, they say, merely codifying the status quo; and they are largely correct about that point.
They are also swimming in a current of opinion that has become ever more favorable toward aggressive advocacy of abortion. The old Democratic mantra from the 1990s, that abortion should be “safe, legal, and rare,” has been discarded as too defensive. That language no longer appears in the Democratic platform. Another change: A previously coded endorsement of taxpayer funding of abortion, noticeable only to activists, has become explicit.
Supporters of legal access to late-term abortion have made several related arguments in its defense in response to the unwelcome public attention to the issue. They say that late-term abortion is extremely rare and happens only in exceptional circumstances, as Governor Northam suggested. These were the same claims that supporters of partial-birth abortion made when bans on it were being debated. In that earlier debate, the claims were shown to be false, with one abortion-industry official admitting that he had “lied through [his] teeth” on national television.
In its most recent estimate, the Guttmacher Institute, a pro-abortion think tank, reports that 1.3 percent of abortions take place after the 20th week. (We don’t have more fine-grained numbers than that.) Its most recent estimate for the number of abortions annually in our country is 926,200. Taking both numbers together implies that roughly 12,000 abortions after week 20 take place every year. That is more than the number of gun homicides reported by the FBI. A Guttmacher review of the literature in 2013 concluded that most abortions after the 20th week are not sought “for reasons of fetal anomaly or life endangerment.”
Anyway, neither the Supreme Court’s jurisprudence nor the New York law nor the Virginia bill requires fetal anomaly or life endangerment for a late abortion to be legal. Michelle Goldberg, writing in the New York Times, attempted to justify blanket legalization: “The law is a blunt instrument for making judgments about extreme and unusual contingencies.” We should trust the women to make the right decision.
Legal prohibitions are generally based on the possibility that some people will make the wrong decision (and that the prohibitions themselves will help to form consciences around sound principles of justice and morality). Goldberg’s argument presupposes that unborn children in the eighth month of pregnancy have no claim to moral worth, dignity, or personhood. It contends that even if the killing of an eight-month-old fetus is unjustified, it should be treated as a nonevent so as to make sure another eight-month-old’s allegedly justified killing can go forward. The vast majority of us would reject this argument for trusting the mother in cases of infanticide. A vast, but smaller, majority of us reject it in the case of late abortions too.
Northam, like Obama in 2008, was counting on a similar broad moral consensus when he mounted his self-defense. The defenses assumed that we would find something off, something jarring about a loving father or healer who supports infanticide. Perhaps Northam and his allies should reflect a little more on that instinct, and the wisdom toward which it points.
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