At SBA Pro-Life America we often hear the myth that Roe v. Wade allowed for limits on abortion after viability, when a baby can survive outside the womb, which the Supreme Court pegged at around 24-28 weeks in the 1970s.
This myth came up in Vice President Kamala Harris’ recent, disastrous interview with CBS’ Margaret Brennan, in which Harris repeatedly refused to name any specific limit on abortion the Biden administration supports.
As we have covered in this space, the expansive health exception created by the Supreme Court carved a giant hole in legislative efforts to limit late-term abortion, putting U.S. policy on par with China and North Korea. Abortionists like Warren Hern and Colleen McNicholas, meanwhile, have been frank about their extremely flexible view of viability that has allowed them – for decades – to justify any abortion at any time, so long as the price is right.
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Moreover, a little history easily exposes the lie. In its 2000 Stenberg v. Carhart decision, the Court sided 5-4 with late-term abortionist LeRoy Carhart in striking down a Nebraska law prohibiting grisly partial-birth abortions – citing its lack of a health exception (again, a smokescreen). Congress passed a federal law against partial-birth abortion in 2003, which Carhart and Planned Parenthood would continue to battle against until finally losing at the Supreme Court in 2007.
The first state-level bills to limit late-term abortion based on scientific evidence that unborn children can feel pain were introduced in the early 2010s; Congress introduced the first Pain-Capable Unborn Child Protection Act in 2013. Advocates expected legal challenges to these state laws from the abortion lobby – yet most were not. Why? Probably because the pro-abortion side worried (justifiably, as the Dobbs victory shows) about a devastating precedent and loss in the court of public opinion.
Most Americans, of course, aren’t legal historians. But they are strongly opposed to late-term abortion.
No wonder, then, that the issue of viability-based limits is dividing the abortion movement.
As The Washington Examiner reports today, national groups like Planned Parenthood and ACOG are doubling down on support for abortion on demand until birth with zero limits. That pits them against some state-level activists who understand that won’t fly on the ballot in their own states.
(In what we’re sure is pure coincidence, groups that raise funds to pay for abortions are complaining that donations have dropped off. They’re running to Hollywood celebrities for help.)
Harris may have thought she could keep everyone happy by simply being vague to the point of saying nothing at all. She claimed, “We need to put back in place the protections of Roe v. Wade…we’re not trying to do anything that did not exist before June of last year.”
But that’s false. Where Roe and Planned Parenthood v. Casey paid lip service to the notion of a state interest in protecting fetal life after viability, the Democrats’ so-called Women’s Health Protection Act – better known as the Abortion on Demand Until Birth Act – leaves it entirely up to the abortionist, the one who stands to directly profit, to decide when a baby is viable. It explicitly blocks any limits that conflict with that person’s “good-faith” judgment.
The bill goes on to say that any state is welcome to widen the circumstances when post-viability abortions are allowed.
A list of specifically blocked types of laws also includes policies previously upheld by the Supreme Court, such as informed consent protections and parental notification. The bill states that it would supersede not only all state laws, but also all current and future federal laws, including the Religious Freedom Restoration Act. It permits a narrow carve-out for federal law on partial-birth abortion to stand (though it’s not entirely clear how enforceable that would be in light of many of its other prohibitions).
Other than the title, the latest bill makes only a single reference to “women.” And the unborn child is simply nonexistent.
As if that were not enough, the bill instructs courts to “liberally construe” its provisions.
Fox News host Brian Kilmeade called Harris right out: “That is someone that memorized an answer that has no idea what the real answer is.”
Senator and presidential candidate Tim Scott agreed: “Kamala Harris should be ashamed of herself.” And he called on every GOP candidate to back a national minimum standard to protect babies in the womb at least when they feel pain, by 15 weeks. Watch now:
This is what leadership looks like. We couldn’t have said it better, and that’s what it will take to win.