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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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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.
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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?
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Who do the Zombies believe in and worship his every flip-flopping word?
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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
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