Abortion: The Health Exception

By Tom Longua

The Language

In their own private meetings, pro-abortionists make no secret about the fact that they want absolute, no-holds-barred abortion on demand. But in public, they pretend to be "moderate". Part of that pretense is that they often feign acceptance of "reasonable" laws that might limit the number of abortions — as long as such measures leave room for exceptions for the woman's "health"

Some people who consider themselves "pro-life" willingly go along with this charade, just to get something on the books. For example, the Pennsylvania "Abortion Control Act" tries to restrict abortion in various ways, but those restrictions do not apply in cases of "medical emergency," which is defined in the law as

"that condition which, on the basis of the physician's good-faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function."

This language is stricter than the open-ended definition of "health" written by the U.S. Supreme Court in Doe v. Bolton, a decision that was handed down with Roe v. Wade on January 22, 1973. In Doe, the Court said

"[T]he 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. All these factors may relate to health."

In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the Court let the Pennsylvania definition stand. Since then, that language has been written into measures that attempt to restrict abortion. While this language seems reasonable at first glance, however, it is really deceptive. Consider:

1. Whatever restrictions the measure might require may be ignored if the "physician" — that is, the abortionist himself, who makes no money if the restrictions obtain! — decides that an "emergency" exists.
2. While the wording sounds strict, the fact is that virtually anything could qualify as an "emergency." Pro-abortion doctors have for years considered a "troubled mind" an "impairment of a major bodily function." That is why pro-abortionists pretend to accept "moderate" measures, as long as they include a "health" exception; they know that the exception can be used to allow any abortion at all.
3. While the Court let the "strict" language stand in 1992, it reserved the right to "revisit" it in the future. Indeed, in Stenberg v. Carhart (192 F.3d 1142), handed down June 28, 2000, the Court said:
   

   "The word 'necessary' . . . cannot refer to an absolute necessity or to absolute proof. Medical treatments and procedures are often considered appropriate (or inappropriate) in light of estimated comparative health risks (and health benefits) in particular cases. Neither can that phrase require unanimity of medical opinion. Doctors often differ in their estimation of comparative health risks and appropriate treatment. And Casey's words "appropriate medical judgment" must embody the judicial need to tolerate responsible differences of medical opinion . . . ."

   From this ruling, it is evident that the "restrictive" language restricts nothing at all.

"Personhood"

But these practical considerations notwithstanding, any law allowing abortion — even if for a "good" reason — reinforces the basis of all abortion. Imagine a law allowing someone to kill a born person if the killing is "necessary" for the killer's "health" (excluding self-defense). Would the courts allow such a law? Of course not — because the Constitution guarantees a Constitutional right to life to all persons.

This consideration — i.e., whether or not the preborn child has a Constitutional right to life — is the very foundation of Roe v. Wade, which concerned a Texas law outlawing abortion — except to save the mother's life. During oral arguments, the lawyer representing Henry Wade, the Texas Attorney General, argued that the law should be upheld because the preborn child has a Constitutional right to life in the 5th and 14th Amendments. But the Justices pointed out that the law clearly implied that the baby is not a "person," since it allowed abortion to save the mother's life. (While documentation on how they came to their decision shows that seven of the Justices were set to legalize abortion no matter what the facts showed, their logic — that the Texas law implied "non-personhood" — was sound.) In Roe itself, Harry Blackmun specifically said that the unborn child is "not a person in the whole sense," and that if the "personhood" of the fetus were established, the case for legal abortion "would collapse."

Similarly, a law that would allow the killing of a preborn child — even to preserve the mother's health — would reinforce the premise of Roe on which abortion was legalized in the first place; namely, that the child is not a "person" and therefore has no rights under the Constitution. The issue then becomes, not whether or not it is acceptable to kill preborn babies, but in what circumstances it is acceptable to do so.

Will Women Die?

Does this mean that a law without a "health" exception would allow women to die? Certainly not. Principled language can be used to protect women from genuine medical problems, without giving up the "personhood" of the child. That language is already in the Colorado Constitution.

Article V, Section 50. Public Funding of abortion forbidden.
"No public funds shall be used by the State of Colorado, its agencies or political subdivisions, to pay or otherwise reimburse, either directly or indirectly, any person, agency or facility for the performance of any induced abortion, PROVIDED, HOWEVER, that the General Assembly, by specific bill, may authorize any appropriate funds to be used for those medical services necessary to prevent the death of either a pregnant woman or her unborn child under circumstances where every possible effort is made to preserve the life of each."

The "proviso" of this measure is based on what is called the "unity language," written in the early 1980s by Charles Onofrio of Denver and approved by National Right to Life, of which Charles was the Colorado Director. In 1984, Charles used the same language for the "no-state-funding-of-abortion" ballot initiative (above), which the voters approved and became part of the Colorado Constitution.

While some people refer to that "proviso" as an "exception" to allow funding of "abortion" to save the mother's life, a careful analysis of the wording shows that it is no such thing. What it does allow is funding for "medical services" that are indicated by a genuine medical condition, such as a tubal pregnancy or a cancerous uterus; for these conditions, appropriate "medical services" are, respectively, a salpingectomy and a hysterectomy. Without such procedures, both the mother and the child would die. Although these procedures would have an abortifacient result, they are not "abortions" per se.

With similar language, it would be possible to write legislation that would limit abortion — parental notice, "right to know," clinic regulations, reporting requirements, etc. — without endorsing the "non-personhood" premise of Roe v. Wade