It is often said that no right is absolute. The First Amendment’s rights to freedom of speech, religion, and assembly can be restrained in some circumstances. The Second Amendment doesn’t guarantee the right to own a machine gun. But if the Democrats take control of the government in November, abortion will soon be legally guaranteed to any woman, at any time, for any reason.
Here’s the problem as abortion rights believers see it. Roe v Wade—the 1973 ruling that made abortion a constitutional right—left space for modest state restrictions. For example, courts have permitted the outlawing of so-called partial birth abortions, mandatory waiting periods, ultrasound testing, and the like. Pro-lifers believe these laws saved tens of thousands of babies’ lives.
These abortion restrictions infuriate the abortion-rights movement. Thus, the party of abortion—Democrats—is increasingly dedicated to eliminating every impediment. Should Vice President Joe Biden win the presidency in November, and the Democrats retain control of the House of Representatives, and take the Senate—where the filibuster would likely be repealed—abortion law would quickly be federalized to disallow any state restriction.
Proposed Law
Federal legislation already introduced by Democrats leave no doubt about the tectonic changes they plan. Take, for example, the Women’s Health Protection Act of 2019 (H.R. 2975) that already has 215 sponsors. The bill claims that “access to legal abortion services is essential to women’s health and central to women’s ability to participate equally in the economic and social life of the United States.”
To end all “harmful restrictions,” the bill states, “A health provider has a statutory right to provide abortion services,” and “that provider’s patient has a corresponding right to receive such services.”
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Accordingly, the bill would eliminate all restrictions that currently exist in some states, such as based “on a particular abortion procedure”—which would relegalize partial birth abortion in which a viable or near viable fetus is partially delivered and his or her skull punctured.
The bill also protects sex selection and eugenic abortion of Down syndrome babies, by prohibiting laws that require a patient to state her “reasons for seeking abortion services.”
What about post-viability abortions? The bill bans prohibitions “after fetal viability when…continuation of a pregnancy would pose a risk to the pregnant woman’s life or health.”
Never mind that Ob/gyns will generally tell you that the proper medical approach to a life-threatening late term pregnancy is to “immediately deliver” the baby via labor induction or C-section.
The term “health” would prevent no late-term abortions as the term has been interpreted by courts (Doe v Bolton) to include the mother’s emotional wellbeing as well as physical pathologies. Thus, the bill essentially permits abortion through the ninth month so long as the abortionist agrees it is necessary to prevent anxiety, suicidal ideation, or depression.
Democrats also plan to force taxpayers to pay. Currently, the “Hyde Amendment” —one of the few areas of comity in abortion law—prohibits federal funds from funding almost all abortions.
The “Equal Access to Abortion Coverage in Health Insurance Act of 2019” (H.R. 1692) has 181 sponsors and would “ensure coverage for abortion care in public health insurance programs, including Medicaid, Medicare, and the Children’s Health Insurance Program.” That kills Hyde. The bill also establishes the “Sense of Congress” that “restrictions on coverage of abortion care in the private insurance market must end.”
Democrat-controlled States
Recently enacted laws in Democrat-controlled states also illustrate the all-encompassing right to abortion Democrats seek.
New York’s law states: “Every individual who becomes pregnant has the fundamental right to choose to carry the pregnancy to term, to give birth to a child, or to have an abortion.” The right is absolute “twenty-four weeks from the commencement of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health.” That means, no limitations prior to viability and the only the hollow “health” restriction thereafter.
Vermont went even further, creating a “fundamental right to an abortion” without including “health” modifiers for later-term terminations. Making it clear that unborn life has all the inherent value of pond scum, the statute states “A fertilized egg, embryo, or fetus shall not have independent rights under Vermont law.” That clause reduces embryos and fetuses into mere things, meaning a viable baby being carried by a healthy mother could be aborted legally at 8 1/2 months or abortion could be delayed to permit fetal organ harvesting.
Legal Theory
Of course, laws that are passed can later be repealed. That is why abortion rights activists also want to overturn Roe v Wade—just from the other way around. If Democrat presidents appoint a majority of Supreme Court justices in the mold of Ruth Bader Ginsberg, Roe’s privacy justification for the right would almost certainly be superseded with an “equal protection under the law” approach—already advocated by Ginsberg and in law review articles. Such a constitutional standard would invalidate even the mildest state restrictions.
The justices who decided Roe v Wade naively intended to settle the abortion controversy once and for all. Instead, they unleashed a bitter cultural conflict that has roiled the country for decades and materially strained our mutual bonds of affection (to borrow an evocative phrase from Lincoln). Now, Democrats again want to terminate the debate.
But stifling the ability of millions to influence abortion law through democratic engagement would only increase the bitterness of our already intense cultural divide. You can tell tens of millions of people that their deepest moral concerns are irrelevant. You can tell them that their efforts will all be for naught. But that doesn’t mean they will go away.
LifeNews.com Note: Wesley J. Smith, J.D., is a is a senior fellow at the Discovery Institute, special consultant to the Center for Bioethics and Culture and a bioethics attorney who blogs at Human Exeptionalism. His latest book is Culture of Death: The Age of “Do Harm” Medicine.
