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."