The starting point for any discussion about abortion is, of course, Roe v. Wade. Pro-abortion people like to throw that case name around like a magic talisman that allows abortion from the moment of conception until some time after birth. They invariably forget that Roe v. Wade was a very limited ruling. It did not create an unfettered right to abortion. Instead, it established a delicate balancing act over the entire length of the pregnancy between the State’s interests and the woman’s interest in the fetus. Based upon the state of medicine in the early 1970s, the court saw viability as starting sometime within the second trimester. The specific weeks or months of a pregnancy, though, weren’t the issue. Viability trumps all:
With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother. (Emphasis added.)
Roe v. Wade, 410 U.S. 113, 163 (1973).
The Supreme Court has decided myriad abortion cases since Roe v. Wade, all of which push back on limitations states attempt in impose on abortions in the early weeks. The one thing that none of these cases have done is to limit the viability standard. Instead, in Planned Parenthood v. Casey, the Supreme Court actually expanded the viability standard by saying trimesters are irrelevant. The only thing that matters when it comes to determine the State’s interest is average fetal viability under current medical practices:
We have seen how time has overtaken some of Roe’s factual assumptions: advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973, see Akron I, supra, at 429, n. 11, and advances in neonatal care have advanced viability to a point somewhat earlier. Compare Roe, 410 U. S., at 160, with Webster, supra, at 515-516 (opinion of REHNQUIST, C. J.); see Akron I, 462 U. S., at 457, and n. 5 (O’CONNOR, J., dissenting). But these facts go only to the scheme of time limits on the realization of competing interests, and the divergences from the factual premises of 1973 have no bearing on the validity of Roe’s central holding, that viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions. The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided; which is to say that no change in Roe’s factual underpinning has left its central holding obsolete, and none supports an argument for overruling it.
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 860 (1992) (emphasis added).
In sum, what the Supreme Court has done over the years is to expand pre-viability rights, while contracting the window of time within which those rights apply. This is an important point to keep in mind when considering the House’s Pain-Capable Unborn Child Protection Act, which bans abortions at 20 weeks of pregnancy. First, don’t let the 20 weeks throw you. The method the House bill uses to calculate fetal age translates to what most women would consider 22 weeks pregnant, which is when fetus’s can survive outside the womb. (There are two different time measurements, in the same the way that Celsius and Fahrenheit are two different temperature measurements.)
Right out of the box, the pro-abortion media gets the bill wrong. In a Washington Post article, the Post claims the House bill goes beyond the Supreme Court, which it does not:
The bill would narrow the window currently set out by federal law and the Supreme Court, which bans most abortions after 24 weeks of pregnancy. Some Republican-controlled state legislatures have passed similar laws in recent months.
As you can see from the quotation above, the Supreme Court did not place a time-limit on abortion. It placed a viability limit. Once the average fetus is viable with modern medical care, the State has rights.
Now that we’ve established the law, let’s look at what Barack Obama has to say about the House bill, which he has declared he intends to veto in the unlikely event it gets through the Senate:
The Administration strongly opposes H.R. 1797, which would unacceptably restrict women’s health and reproductive rights and is an assault on a woman’s right to choose. Women should be able to make their own choices about their bodies and their health care, and Government should not inject itself into decisions best made between a woman and her doctor.
Forty years ago, the Supreme Court affirmed a woman’s constitutional right to privacy, including the right to choose. This bill is a direct challenge to Roe v. Wade and shows contempt for women’s health and rights, the role doctors play in their patients’ health care decisions, and the Constitution. The Administration is continuing its efforts to reduce unintended pregnancies, expand access to contraception, support maternal and child health, and minimize the need for abortion. At the same time, the Administration is committed to the protection of women’s health and reproductive freedom and to supporting women and families in the choices they make.
If the President were presented with this legislation, his senior advisors would recommend that he veto this bill.
This is a steaming pile of manure. It cites to Roe v. Wade without understanding it, and which completely ignores Casey, all in an effort to give women unfettered abortion rights from conception through to some moment after delivery. Reading the statement, it’s difficult to remember that our President is a Harvard Law graduate and former constitutional law professor. I mean, we know he didn’t author it himself, but how in the world could he have put his imprimatur on it?
I’ve commented before on the factual dishonesty of the abortion debate. Abortion proponents pretend that we’re living in the 1950s, when out-of-wedlock pregnancy was a stigma, not a commonplace. I guess it’s unsurprising that the intellectual debate would be equally dishonest. One could say that the good thing about mass murderer Kermit Gosnell is that his “post-birth” abortions have brought to light the intellectual paucity of the Democrat party when it comes to abortion. The Supreme Court has insisted on a balancing act, and the Democrats have responded by putting their thumb firmly on the abortion side of the scale.