Legalities
Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
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Obama revisits abortion
July 05, 2008 7:31 PM
We've gotten a response from Sen. Obama on his comments this week that he would support a ban on abortions after 22 weeks--even if a woman sought the procedure because she was in "mental distress." Obama told a Christian magazine, Relevant, that only women with a "serious physical issue" should be able to get an abortion post-viability.
As I wrote yesterday, that's contrary to 35 years of Supreme Court jurisprudence on the issue, which has always demanded that abortion bans contain an exception to allow the procedure to protect a woman's "mental health," as well as her physical health. Only Justices Thomas and Scalia have expressed the view that a "mental health" exception is not required.
Today, Obama tried to explain what he meant. I'm going to print his response in its entirety, because he's trying to walk a very fine line on what is one of the most divisive—and deeply felt—issues in America today.
In clarifying his remarks, Obama said this afternoon that he has "consistently" said health exceptions are required for laws banning or seriously restricting abortion. But he then goes on to try to carve out exceptions to the exceptions, and he ends up suggesting, again, he would support more limits on abortion than the law currently allows.
Speaking to reporters on his campaign plane, Obama said mental health exceptions—which are a real battleground issue in the abortion debate--can be "rigorously" limited to only those women with "serious clinical mental health diseases." He said mental health exceptions are not intended permit abortions when a woman simply "doesn't feel good."
"It is not just a matter of feeling blue," Obama said.
Here's the problem with that, and why Obama's remarks are so startling. Obama is trying to restrict abortions after 22 weeks to those women who have a serious disease or illness. But the law today also covers some women who are in "mental distress," those women who would suffer emotional and psychological harm without an abortion.
This standard has long been understood to require less than "serious clinical mental health disease." Women today don't have to show they are suffering from a "serious clinical mental health disease" or "mental illness" before getting an abortion post-viability, as Obama now says is appropriate.
And for 35 years—since Roe v. Wade—they've never had to show that.
So Obama, it seems to me, still is backing away from what the law says—and backing away from a proposed federal law (of which he is a co-sponsor) that envisions a much broader definition of mental health than the one he laid out this week.
That proposed federal legislation, the Freedom of Choice Act, refers to the key Supreme Court case on the issue, which was decided the same day as Roe v. Wade in 1973. In that case, Doe v Bolton, the Court said a doctor could decide to perform an abortion based on "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."
Subsequent cases in the Supreme Court and lower courts have said states cannot ban abortions where the doctor deems them necessary to protect a woman's physical and mental health. Lower courts have taken that to mean a state cannot prohibit an abortion—even one post-viability--if the woman would suffer severe emotional harm without it.
Nowhere do those cases impose criteria of "serious clinical mental health diseases."
That's not what the law is today. The Court has said the Constitution prohibits states from banning post-viability abortions unless those laws contain a broad mental health exception---one that includes mental distress and severe emotional harm. Abortion rights groups have fought for decades to preserve these exceptions, and I'm awfully curious what they will think about limiting them to women with mental disease or mental illness. (A good question for Monday, when we're all back in the office.)
Now maybe the law will change--now that Justice Sandra Day O'Connor is no longer on the Supreme Court. On this issue, Obama seems to be suggesting it should.
Here's his response:
"My only point is this-historically I have been a strong believer in a women's right to choose with her doctor, her pastor and her family," Obama said. "I have consistently been saying that you have to have a health exception on many significant restrictions or bans on abortions, including late-term abortions.
"In the past, there has been some fear on the part of people who--not only people who are anti-abortion, but people who may be in the middle--that that means that if a woman just doesn't feel good then that is an exception. That's never been the case. I don't think that is how it has been interpreted.
"My only point is that in an area like partial birth abortion having a mental, having a health exception can be defined rigorously," Obama continued.
"It can be defined through physical health. It can be defined by serious clinical mental health diseases. It is not just a matter of feeling blue. I don't think that's how pro-choice folks have interpreted it. I don't think that's how the courts have interpreted it and I think that's important to emphasize and understand."
July 5, 2008 | Permalink | User Comments (51)
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Obama thinks as a male, that he should decide if a woman has mental destress.. he thinks the government should make the decision with him at the head of the govt.
so much for the woman and the doctor.
and what the hell is the pastor doing in their?
does barry think women aren't capable of making their own decisions?
Posted by: trettione | Jul 5, 2008 7:47:23 PM
My personal health decisions are between myself and my doctor. In this country any decisions about that privacy should be made based on the constitution not the bible and his even mentioning a pastor is downright un-American.
Posted by: Mary Brown | Jul 5, 2008 8:01:14 PM
Nit-picking.
Don't you think you should point out that John McCain has a PERFECT SCORE as far as the anti-choice crowd is concerned?
Don't you think you should point out that John McCain would appoint men who made up their minds LONG AGO that Roe v. Wade should be thrown out?
Don't you think you should point out that it is quite possible, if McCain gets to replace Stevens and Ginsburg, for example, that this very, very political court would render abortion UNCONSTITUTIONAL?
The point is that while you have been looking for some daylight between conventional positions on Roe v. Wade and Obama, there is a *grand canyon* of difference between the current rulings of the "Supreme" Court and the judges that McCain would likely appoint!
Posted by: John's conscience | Jul 5, 2008 8:09:45 PM
This is exactly why I have a problem voting for this guy. He's already backtracking on multiple statements made during the primaries. First he only plans to take matching funds, then he doesn't. First he promises all troops out in 16 months, now he's saying the time table could change. First he supports a woman's right to choose without exception, now he's qualifying that to appease conservatives. He's a hypocrite. Hillary should come back!!!!
Posted by: Wendy | Jul 5, 2008 8:43:32 PM
What "true box" meant to say was:
Barack Obama acts like he really believes there is no Red America and Blue America, but ONE America.
It will be nice to have a president who doesn't view the presidency as a bat with which to beat his ideological opponents.
Posted by: John's consciece | Jul 5, 2008 9:18:19 PM
Obama can not be trusted. This guy has no conviction and judgement, and would say and do anything for political gain.
His words don't mean a thing, Obama is really about "change." A flip-flop, liar.
Posted by: nobarak | Jul 5, 2008 9:25:47 PM
K.F. Miller,
I rather have each woman decide for herself than YOU, any day of the day, any minute of the day.
The age of big government is over. We don't need the government making our most difficult decisons for us.
Posted by: John's conscience | Jul 5, 2008 9:53:40 PM
K.F. Miller,
I rather have each woman decide for herself than YOU, any day of the week, any minute of the day.
The age of big government is over. We don't need the government making our most difficult decisons for us.
Posted by: John's conscience | Jul 5, 2008 9:56:44 PM
Our wise leaders must understand, that the sanctity of life must always be respected. A baby, though in its embryonic stage, is still a baby with spirit life. To destroy that embryo, at any stage after conception has taken place,is to kill that soul, who is trying to make its way unto the earthplane for learning.I am requesting that physical human beings maintain that truth at all times, moreso, as discussions continue, regarding what is or is not a safe period for termination of the unborn.
Posted by: rev. Norbert Larcher | Jul 5, 2008 10:23:37 PM
A very small percentage of women seek out a late term abortion. As a pro choice woman, I see nothing wrong with having restrictions on late term abortions. But they can't be banned for obvious reasons.The majority are performed because of the health of the mother, the fetus, or the fact the mother may have been exposed to chemo, or radiation or some sort of chemical.The fetus may not be developing properly. The mother's life may be in jeopardy.
Posted by: Miki | Jul 5, 2008 11:11:17 PM
He is Flip Flopper, he has changed every position he stood far. This is the begaining. He will say any thing to win.
Posted by: illindipendent | Jul 5, 2008 11:30:09 PM
Obama one of the few who fully backed live birth abortions.
Obama is going to find out his game he has been running on the people, where he tells on thing to one group and another to another group.
Then tries to make a statement to appease them all, Things just do not work that way.
Posted by: seah | Jul 6, 2008 12:57:32 AM
You can totally trust Obama on abortion. He is George W. Obama and his word is gold. He's solid as a rock and holds steadfast in his positions. The only position he has ever changed is his support for Reverend Hateful Wright, and that was because Reverend Wright became a political liability. He has been steadfast in his accusation that small town people are bitter. You can count on Obama.
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Obama, the chief architect of BitterGate!
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Posted by: WestCoastMessenger | Jul 6, 2008 1:12:50 AM
Obama has just lost my vote and possibly the votes of other pro-choice women. And to what end? The people who oppose abortion under any circumstances aren't going to vote for Obama anyway. He has nothing to gain by alienating voters who should be solidly behind him.
Posted by: Alex | Jul 6, 2008 1:18:58 AM
John's Conscience,
Let's hope that some of the Supremes hold out 4 years, that we have a Democratic congress, and that any nominees can be blocked, after all this is what Jesse Helms did for years so its time for payback in his honor. Yes, Hillary can step in in 4 years and cleanup. Obama's never going to get his hands on power in this country you can be assured.
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Who are the Zombies supporting. You know very well which name pops in your head immediately!
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Posted by: WestCoastMessenger | Jul 6, 2008 2:24:45 AM
Great reporting, Jan.
Posted by: Marc | Jul 6, 2008 2:30:43 AM
Will the real Obama please stand up. I wouldn't vote for him in the primaries and I won't vote for him November. He is the biggest fraud in the history of politics.
Posted by: Carol 17 | Jul 6, 2008 3:07:31 AM
Yet again, Senator Obama needs to hold a press conference to explain "what he meant." How many times have we heard that he was "inartful" in his comments (from his spokesman describing views from last fall on the 2nd amendment) or that he wasn't clear (Iraq). Add FISA and abortion to the growing list on which the Senator seems unable to give his position.
Mendacity or sloppiness? Either way, it's not looking good.
I'm just waiting for his press people to trot out the old "inoperative" line.
Posted by: DCLawyer | Jul 6, 2008 7:42:26 AM
julie
abortion laws need to be let alone or we will be like returning to the stone age----as you mentioned there are far more important issues----our country is virtually going down the drain---sometimes the pandering from both sides gets a little disgusting...the right needs to do the right thing and simply educate what is right or wrong---not by opressive laws but by education.
Posted by: rodney | Jul 6, 2008 7:58:29 AM
thinking
you feel that perhaps a distraction----to slow down the democrat freight train--or maybe attempt at derailment---sure upset me
Posted by: rodney | Jul 6, 2008 8:11:34 AM
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