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: Sounding Like Thomas and Scalia? | Main | The Politics of Abortion »

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.
========================================
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.
=======================================
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

The liberal position on health care in the upcoming election is pretty clear.

* We need government sponsored, universal health care.

* The government better not get involved in decisions private to me and my doctor.

Oh to be a dreamer.

Posted by: rick g | Jul 6, 2008 8:31:49 AM

Although I am an Obama supporter, I strongly, very VERY strongly feel that a woman should have control over what happens to her body and she should not be held hostage by her physiology. No one, absolutely no one should have the right to tell a woman she must give birth if she gets pregnant, no matter what the circumstances. I am disappointed in Obama's stance on this issue. As far as I'm concerned it is a woman's right to choose, period, and no doctor or pastor has the right to tell her differently. And this whole religion thing Obama seems to be getting into lately is turning me off. I'll vote for him, no question about it, because McCain is just not an option, but I really don't like what Obama's been saying lately about a number of issues.

Posted by: counting crows | Jul 6, 2008 9:05:50 AM

How many women seek abortions after 22 weeks of pregnancy? Why the heck are battling over what McCain or Obama thinks about a 22 week abortion? As a woman, I don't wake up in the morning thinking about abortion, neither do I toss and turn in bed at night over it. What's the point in digging so deeply into pro-choice to find a person's limit? At 5-months of pregnancy, only two things can happen; the mother's health deteriorates or she becomes mentally incapacitated not understanding the changes in her body. Sure it can happen, but legislation??? This is a mighty stretch into trapping a candidate with his words. Good grief! Leave the law alone and treat those extreme cases as such.....extreme! This is not a presidential issue and this is not on the minds of normal women.

Posted by: Rational Voter | Jul 6, 2008 9:08:41 AM

Today, on "this week" with George Stephanopoulos was clearly slanted toward John McCain and against Barack Obama. Nearly every guest floated an anti-Obama statement unchallenged, but similar comments directed at John McCain were rapidly defended.

Is this the format that we want from our News Media?

Posted by: Mack | Jul 6, 2008 9:57:13 AM

aimee
it is more about choice--something no man or woman should dictate----it really is about YOU

Posted by: rodney | Jul 6, 2008 10:09:03 AM

mack
and at one time he was part of clinton administration----wonder what his game is.georgie mccain

Posted by: rodney | Jul 6, 2008 10:20:37 AM

Jan - as I note here in my post on this update, another problem with Obama's statement is something which again seems to point out a failure to think through law and mental health: if a doctor declares a woman to have a serious mental disease or serious mental illness, the likelihood that a power of attorney for health care or a guardianship appointment to someone who would make her medical decisions seems to be severely increased and be yet another way in which the decision about late term abortion would be wrested from her.

I cannot believe that this is what Obama intends and the people around him really should be doing a better job thinking out or getting someone who knows law and mental health to think out this stuff.

Posted by: Jill | Jul 6, 2008 10:42:17 AM


Obama: Only the deaf and blind could possibly believe he hasn't abandoned them!

Posted by: Soetoro No! | Jul 6, 2008 10:48:56 AM

mccain will abolish womens rights and that is the bottom line---dont try to put obama off as mcsame

Posted by: rodney | Jul 6, 2008 10:55:05 AM

Obama will loose the liberal women's vote with this comment. I hope he revisits this issue with more equality, because it is America (I think).

Posted by: Victorianhat | Jul 6, 2008 11:25:56 AM

Don't you wonder who the real Obama is? Is he the one that is pro-choice or anti-abortion? Is he the one that is for ending the war in Iraq, or refining his policy about Iraq to whatever? Is he the one that is for public financing or against it? I wish I knew. Apparently the Obama Zombies know. But they drink the koolaid.
=======================================
Please do not vet Obama, we might find out he's just an empty suit wantin' to get paid! It's Obama's turn to get paid!!
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Posted by: WestCoastMessenger | Jul 6, 2008 11:26:23 AM

Obama is bouncing around like a ping pong ball. He is trying so very hard to please all the people.
It's sad if you really think about it. Could it be part of his identity crisis?
This is really stuff late night jokes are made of. Leno could do another mock game show called: "Will the Real Barack Obama please stand up!"
They probably won't - they want to look cool to their friends. They should tho, comedy shouldn't be politicized and shouldn't belong exclusively to liberals.
Jon Stewart made a little joke of all of Obama's supporters trying to explaine Obama's flop on the war- so I congratulate him for that!

Posted by: teri | Jul 6, 2008 11:34:56 AM

All libs say the wouldn't personally abort a fetus but, as a rule, everyone should have the right to do so. Isn't that hypocrisy?

Posted by: Aston | Jul 6, 2008 12:34:07 PM

Aston,
Hypocrisy is not standing up for who or what you believe in. Do you believe in Obama? Can you believe Obama?
========================================
Who do the Zombies believe in and worship his every flip-flopping word?
========================================

Posted by: WestCoastMessenger | Jul 6, 2008 12:41:13 PM

this hurts my heart we are discussing millions of baby's lives and you are dicussing how obama should feel there are more male ob gyn doctors than women so how is he just thinking like a man . If a woman has the right over her own body than she should not drag anyone else into her rights. my gyn refuse to do abortions that why I go to him. I am going to e-mail him this article because he didnt want to vote for obama because he wasnt taking a stand against abortion thank God for him and other doctor who believe in the right to life.

Posted by: dr j | Jul 6, 2008 3:02:28 PM

It never works. Democrats who run as right wing light always lose, when there's an actual Republican running. Why would you vote for the immitation Republican when you can have the real thing?

I guess Obama's supreme and ridiculous arrogance keeps him from realizing this.

And those who "support but question," wake up. You're seeing the real Obama here.

Posted by: T | Jul 6, 2008 3:46:10 PM

The only flip flopper is the media and you commentors! They are trying to box Obama in as a flip flopper just because his answers require more than a yes or no. If you want a president who doesn't take realtime situations into account when he makes decisions then vote for McCain. But I would think America would be tired of that mindset. I guess not.

Posted by: Yikes | Jul 6, 2008 5:51:35 PM

Hillary come back!! America needs you!!!

Posted by: Karen | Jul 6, 2008 6:00:14 PM

My very pro-choice S.O. agrees with Obama and I have no doubt many other pro-choice women do as well. If you waited 22 weeks and you just don't want to have the child you should have made the move a long time ago. Serious mental health issues are an exception. Just feeling bad about having a kid is not. If you don't have a serious medical or mental health issue then you should have been able to make that choice before viability.

Posted by: Jay | Jul 6, 2008 10:30:33 PM

What tripe from Obama. Very few women seek late abortion because of their own health issues.

The overwhelming number seek late abortion because of congenital deformities to the fetus, most of which are discovered by amniocentesis, which occurs at 16-18 weeks. Because the test is performed late, the procedure has to be late, because of the 2 week period that is required to perform rock solid DNA verification.

Obama is either playing dumb or he's pandering to so-called religious voters. Neither scenario prompts me to feel very "fired up."

Posted by: Mr Blifil | Jul 7, 2008 12:23:26 AM

Um, what exactly is controversial about what Obama is saying? Didn't the Republican congress pass a late-term abortion ban that has NO exceptions for the health of the mother? Obama believes there should be health exceptions after 22 weeks, but only an extremist thinks that a physically healthy mother should be able to abort a physically healthy baby after viability, but because of depression.

Sorry, I'm as pro-choice as they come, but that is too extreme for me. If the baby is viable, then have a very early delivery and give it up for adoption. Don't kill it. If you don't want a baby, have an abortion when you find out you are pregnant.

Posted by: Existenz | Jul 7, 2008 2:11:55 AM

Sounds like a lot of disgruntled Hillary supporters and anti abortion supporters. I concur with the last post by Existenz. If you're gonna do it do it early. Why are you waiting 22 weeks to have an abortion? If you're just now having complications this late in the term then do what is best for the mother. I'm sure doctors aren't frivolously aborting babies this late in the term...that would be jeopardizing the pregnant woman's health. Adoption is an option.

Posted by: Life Choice | Jul 7, 2008 3:23:15 AM

This reads like another entry in the series of ABC's McSame campaign coverage.

We keep being told that everyone "knows" McSame, and yet why is it that so many of us don't know much about him, or his past? Because anytime a point is made, the media immediately defends him and then brings up anything they can create to question Obama.

Perhaps ABC needs to explain clearly what McSame's position is on women's rights period.

Posted by: kevinbgoode | Jul 7, 2008 7:00:17 AM

In the third trimester, the choice to have an abortion is not committed to mother and her doctor. The state can impose requirements. Obama's point is that those requirements should not be watered down in such a way that "mental health" means any time a woman would feel better about having an abortion. I object to him going there, because I don't think that women make choices along those lines. But I don't think that makes his position illegitimate. And I don't think his position is inconsistent with law.

Posted by: sophie brown | Jul 7, 2008 11:19:48 AM

I thought he was supposed to have taught constitutional law. If so, apparently he does not understand Roe and its progeny. He is starting to sound like that mysogynist Justice Kennedy.

Posted by: Edward | Jul 7, 2008 12:38:55 PM

Existenz:
"Sorry, I'm as pro-choice as they come, but that is too extreme for me. If the baby is viable, then have a very early delivery and give it up for adoption. Don't kill it. If you don't want a baby, have an abortion when you find out you are pregnant."

First the woman has to "have a very early delivery and give it up for adoption". On the other hand "if you don't want a baby, have an abortion when you find out you are pregnant."

Are there any other conditions or timetables you'd like to place on a woman having this procedure? Because the important thing is to find a solution that's not too extreme for you personally. The rest of us be damned.

Newsflash: If "that is too extreme" for you, then by definition you are NOT "as pro-choice as they come".

Suggestion: Why don't you get an abortion or not as you see fit, and let others make their own choices as they see fit? That's what "pro-choice" really means... they get to make the choice - not you.

Posted by: "Pro-choice" means the woman decides - not you | Jul 7, 2008 3:00:38 PM

I guess these can't use the "McCain will reverse Roe v Wade" argument anymore, cause it looks like your boy is already planning to do so.


HAHAHAHAHAHA

Posted by: xax | Jul 7, 2008 5:33:42 PM

why should a woman wait 22 weeks before she decides she want to murder a child. we are alive because out mothers chose life for us. Obama is speaking of his opinion like every other red blodded human. obviously some people cant handle that.

Posted by: dzifa | Jul 8, 2008 3:56:44 PM

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


You are confusing Obama with McCain. Flip flopping is McCain's M/O since running for POTUS 08.

Posted by: brigitte | Jul 9, 2008 1:29:37 PM

You can count on liberals to always favor abortions if that is what a woman "chooses." Strange how they want to be Christian at the same time. This country has gone the wrong direction if it will not protect the most helpless of its people (the unborn). If it weren't for abortion, I would vote Democrat. But since they will never leave their stance, I will never leave my dear GOP. Blast me as a single-issue voter, but that is the way it is. It is clearly murder and anything one does to try to say it is an acceptable practice is simply trying to justify murder. Good intentions. Naively evil practice.

Posted by: Ian Smith | Jul 11, 2008 10:15:51 AM

Ian - I am with you. I'd probably be Democrat and am on a lot of issues except that in killing babies, just doesn't do it for me.

I can't understand liberals who are out giving pro-bono defense to Guantanamo terrorist and then advocating the killing of a baby who is fully developed, has emotions, can live outsid the woomb etc.

Posted by: Paul | Aug 15, 2008 7:09:14 PM

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