‘Health’ exception means abortion on demand (Christian Coalition, 970400)

It may sound merciful but, written into law, such a language means a child can be aborted at any time for any reason.

When President Clinton refused to sign the congressional ban on partial-birth abortion, he said he did so because the ban did not include an exception to protect the health of the mother.

The argument sounds reasonable. In fact, anyone opposed to preventing a serious threat to a woman’s health might appear to be unreasonable. But what does the term protecting “health” really mean when it comes to abortion law?

In daily conversation, reference to a threat to health typically implies serious physical problems.

When abortion advocates talk about abortion to “protect a woman’s health,” they often want to deflect attention from the unborn child and convey the idea that a serious physical health problem, or the mother’s life, is at stake. But when it comes to abortion law as set by the Supreme Court, a “health” abortion, for all intents and purposes, means abortion on demand.

This discrepancy was a critical issue in the debate over the Partial-Birth Abortion Ban. President Clinton capitalized on this little-understood discrepancy to mislead some Americans into thinking that he really wanted to prohibit partial-birth abortion as long as women’s health could be protected. At a post-election press conference, he explained his alleged dilemma.

“The problem is, there are a few hundred women every year who have personally agonizing situations where their children are born or are about to be born with terrible deformities,” Clinton said. “These women ... cannot preserve the ability to have further children unless ... the baby’s head is reduced before being extracted from their bodies.” (Health professionals have testified to Congress that most partial-birth abortions are elective, not motivated by a threat to a mother’s health. It is important to note that the ban Clinton refused to sign does include an exception if the mother’s life is in danger.)

Lethal loophole

The discrepancy was accomplished by the Supreme Court’s sleight of hand. In its 1973 Roe vs. Wade decision, the Court said that the states could prohibit abortion when the unborn child is viable (able to live outside the womb). That sounds restrictive. But, in the same sentence, the Court created an immediate loophole: except when abortion is necessary to “preserve the life or health of the woman.” That still sounds somewhat restrictive.

But very few people know about Doe vs. Bolton, a second case from Georgia that the Court decided on the same day as Roe. In Doe, the Court said that the two decisions were to be “read together.” And, buried in the middle of the Doe opinion, the Court defined “health” as “all factors -physical, emotional, psychological, familial, and the woman’s age -relevant to the well-being of the patient.”

In other words, the Court created a general rule in Roe that sounds somewhat restrictive (the states can prohibit abortion when the child is viable) but then created an unlimited exception for “health” in Doe that strips all restriction from the general rule.

Subsequently, the federal courts have proceeded to read the broad “health” definition in Doe into the third trimester limitation in Roe, stripping the limitation of all restriction. This is made clear by several federal court cases that struck down state laws which prohibited abortion after viability except for serious health reasons. The courts said that these laws were too restrictive.

This is also made clear by a federal court of appeals decision, which was affirmed by the Supreme Court itself in its 1986 Thornburgh decision. The 3rd Circuit Court of Appeals invalidated a Pennsylvania law that restricted post-viability abortions because it would require “the mother to bear an increased medical risk in order to save her viable fetus.” The Court noted that “[i]t is clear from the Supreme Court cases that ‘health’ is to be broadly defined,” citing the broad definition from Doe vs. Bolton.

It is important to note that because of the Supreme Court’s all-encompassing definition of “health,” the “health” loophole cannot be fixed by adding “serious” before the word “health.” Allowing abortion for a “serious health” reason would include a “serious” financial, familial or emotional reason. And, under the Supreme Court’s abortion code, the abortionist would determine what is a “serious” health reason. Of course, pro-life advocates would still contend that physical health problems do not justify taking the life of a child when the life of both mother and child can be saved.

The only answer to the health exception dilemma is a future ruling from the Supreme Court stating that Congress and the states can prohibit post-viability abortions. Such a ruling could come if a partial-birth abortion ban becomes law and is tested in court.

Given the expert testimony in Congress about the Partial-Birth Abortion Ban, there’s no excuse for President Clinton and his advisers to not know about the real meaning of a “health” exception. Testimony before Congress emphasized this discrepancy. The confusion by the president and his spokespeople cannot be accidental.

Clarke D. Forsythe is an attorney and president of Americans United for Life of Chicago, a pro-life public interest law firm and educational organization.

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