On Demand Until Birth?

December 20, 2021 On Demand Until Birth?

According to a May 2021 Pew poll, 59% of Americans think abortion should be legal in all or most cases, while only 39% think it should be illegal. A June 2021 Gallup poll asked a more specific question, but found almost the same results: 58% of Americans oppose overturning Roe v. Wade, while 32% support. Gallup has been asking that question for over thirty years, and a majority, from 52% to 58%, has always opposed overturning.

And yet the Supreme Court is currently hearing a case challenging Roe v. Wade, and the lopsidedly conservative majority seems poised to strike down or severely weaken the 1972 precedent.

What exactly does that mean?

Roe v. Wade established the following system for state laws:

• First trimester: no restrictions.

• Second trimester: reasonable health regulations.

• Third trimester: any restrictions (unless a woman is endangered).

In 1992, Planned Parenthood v. Casey replaced that system with a similar one:

• Pre-viability: no restrictions.

• Post-viability: any restrictions (unless a woman is endangered).

Current infant viability is roughly week 24 and so in the second half of the second trimester. Infants born at 28 weeks or earlier are “extremely preterm.” A 2015 study in the New England Journal of Medicine found that even with major technological interventions:

• Infants born at week, 22: 5% survived (3% without severe impairment).

• Infants born at week, 26: 81% survived (76% without severe impairment).

Fetuses delivered before week 22 do not survive.

The Roe decision was also based on viability, adopting the assumption that, while variable, it most often began at the start of the third trimester (between week 24 and 28). That was fifty years ago, and despite major technological advances, viability has barely shifted.

Now look at the CDC’s statistics for percentages of abortions performed at various weeks. In 2016:

• Week 8 or earlier: 65%

• Week 13 or earlier: 91%

• Week 21 or later: 1%

In 2018:

• Week 9 or earlier: 78%

• Week 13 or earlier: 92%

In 2019, Kevin Drum compiled the CDC statistics into a chart: “Using state data, it’s possible to roughly estimate the percentage of abortions performed in weeks 21-30. Above that, no records are kept, but the numbers are so tiny that they register as 0.00 percent.”

This clarifies what the abortion debate is about, and what both the 1972 and 1992 decisions protect. Pro-birth advocates often disregard the above facts to argue falsely that restrictions are necessary to prevent late-term abortions–even though over 99% of abortions are performed on non-viable fetuses incapable of sustaining life even with the most extraordinary technological interventions.

When the House or Representatives passed the Women’s Health Protection Act of 2021, pro-birth advocates responded: “This bill would impose abortion on demand nationwide at any stage of pregnancy through federal statute … Congress should not advance a radical ‘abortion on demand until birth’ policy that is completely out of step with our country’s principles.”

Would the bill allow “abortion on demand until birth”? No. The bill reinforces the viability rule created by the Supreme Court in 1992, and with the same single and explicitly stated exception: “A prohibition on abortion after fetal viability when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.”

The law also would not require doctors to perform abortions “on demand.” It states: “A health care provider has a statutory right under this Act to provide abortion services.” It’s the doctor’s choice, but not the state’s. 

Why lie about abortions?

Ask Supreme Court Justice Amy Coney Barrett. In 2006, she signed a newspaper ad opposing so-called “abortion on demand.” There’s no such thing. Barrett either knows that or she doesn’t. Either possibility is disturbing.

The Mississippi law that the Supreme Court is currently evaluating bans abortion after week 15, prompting Chief Justice Roberts to ask an opposing lawyer: “If you think that the issue is one of choice, that women should have a choice to terminate their pregnancy, that supposes that there is a point at which they’ve had the fair choice — opportunity to choose — and why would 15 weeks be an inappropriate line?” 

Because 15 weeks would be arbitrary. Planned Parenthood v. Casey’s viability standard is the only meaningful and long-tested standard for regulating abortions.

Judging by Kevin Drum’s CDC chart, a national 15-week abortion cut-off would affect fewer than 5% of cases. Except with the 1972 and 1992 precedents eliminated, the constitutional right for an abortion would also be eliminated, allowing all restrictions. Texas has already enacted a ban on abortions after 6 weeks (with an especially disturbing enforcement system of paying private citizens to take offenders to court). According to Drum’s chart, if the Texas law were enacted nationally, it would block 66% of abortions. Total bans are even likelier. Twelve states have already passed laws that will automatically take effect if the Supreme Court overthrows Roe v. Wade, and another ten would likely follow. Only fifteen states have laws that would protect abortions in the absence of Roe v. Wade. 

The Court’s decision is due in June—just in time for mid-terms and so control of both the House and the Senate. The Supreme Court’s current conservative supermajority was manufactured by Senator McConnell preventing Obama from replacing Justice Scalia after his death on February 13, 2016, nine months before the presidential election, and then allowing Trump to replace Justice Ginsburg after her death on September 18, 2020, six weeks before the presidential election. As a result, two-term President Obama selected no Justices and one-term President Trump selected three—with the explicitly stated intent of overturning Roe v. Wade.

Though in 1999 Trump said, “I am very pro-choice,” during a 2016 debate he declared the opposite: “If we put another two or perhaps three justices on, [overturning Roe v. Wade] will happen. And that will happen automatically, in my opinion, because I am putting pro-life justices on the court.” Though that radical campaign promise is completely out-of-step with our country, six years later the McConnell-packed Court is working to make it true.

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