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Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg

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The Politics of Abortion

July 06, 2008 12:27 PM

I was going to write today about the story that has captivated my neck of the world for the past three days — one that's had us all talking about how this could have happened, what does it all mean, and what will the repercussions be. I'm referring to the case of Pat Dye's missing pants.

It's big news here in rural north Alabama and for good reason: Dye is the beloved former football coach at Auburn, and a local couple discovered his muddy madras pants at the lake. Since it's so dry here, the water levels are low--and the pants materialized in the mud. The couple picked them up and discovered Dye's car keys and wallet, which contained his drivers' license, credit cards, etc.—from 20 years ago.

Now, Dye doesn't remember how his pants, wallet and car keys ended up on the lakeshore—he doesn't even remember losing them (hey, it was 20 years ago!). And that's set off a round of speculating about what 'ol Pat was up to down there on Lake Martin.

It's been a splendid 4th of July story---one that perhaps only is equaled by the "Shock and Awe" that we set off Friday night in my folks' front yard. (Yes, that was the name plastered on the fireworks — which we bought at the cotton gin-turned-fireworks-stand in Hulaco -- and it lived up to the billing)

But as great as it is to be here in Alabama — with nonstop catfish, barbeque, homemade ice cream, biscuits (you get the point), I've been completely distracted by Sen. Obama's comments on abortion ---his own "Declaration of Independence" from the abortion rights groups? -- and I think I've finally put my finger on what's been bothering me.

For those of you who haven't seen my blog over the past couple days, I've been writing about Obama's startling comments that he would support post-viability abortion bans even if a woman were in "mental distress." He said there had to a "serious physical issue that arises in pregnancy" to justify those abortions.

That's a position expressed on the Supreme Court only by Justices Thomas and Scalia, and Obama's efforts yesterday to clarify those remarks left me confused. He said he would, in fact, support those abortions for some women: those with "serious clinical mental diseases" or, as his spokeswoman further clarified, "mental illness."

That, of course, could exclude most of the women today who seek post-viability abortions, which may or may not be Obama's point in embracing these new limitations.

This much is clear: His position is at odds with federal legislation he has co-sponsored to guarantee broad abortion rights, and it is at odds with his record, which has been strongly in favor of abortion rights--to the point that columnist Nat Hentoff called him the "infanticide candidate."

So what's going on?

I came across a report last night that offers a good explanation. Written nearly a decade ago by Cynthia Dailard for the Guttmacher Institute, a leading think tank on abortion and reproductive health, the report details how pro-choice politicians have long sought to use the "mental health" exception as a way of seeking "common ground" with voters on the Right.

Back then, the proposals seemed cost-free — politicians could offer up a restriction, knowing that even if it passed, a Supreme Court composed of four liberals and Justice Sandra Day O'Connor would strike it down. Of course, much has changed since O'Connor retired three years ago: Today's Supreme Court could well uphold these and many other restrictions.

In 1997, for example, then-Sen. Minority leader Tom Daschle (D-S.D.) proposed a then-clearly unconstitutional amendment to the so-called "partial birth" abortion ban that would have prohibited post-viability abortions for any woman with a mental health condition — no matter how severe.

Sen. Dick Durbin, (D-Ill.) offered an even more restrictive (and equally unconstitutional) proposal the following year—one that excluded women with mental health problems, but added the requirement that two doctors must approve the abortion before it could proceed.

So in some ways, Obama is carrying on a grand tradition of "sacrificing the mental health exception in order to appear reasonable in the context of the post-viability abortion debate," as Dailard put it. It's just a different time, with a different Supreme Court that could well not blink when faced with these restrictions today.

And there are, as the report makes clear, other consequences to opening this Pandora's Box. Again, these may be consequences Obama wants, but there's no question these proposals have had a broad effect on the abortion debate.

History shows that those proposals — offered and embraced by legislators who would call themselves "pro-choice" — have been seized by conservatives who oppose abortion. As Dailard wrote, the attacks on the mental health exception have had "significant repercussions beyond that significant issue, seriously reviving a legislative attack on abortion rights that largely has been dormant for two decades."

After Daschle and Durbin's efforts, leaders with the Center for Reproductive law and Policy issued a sharp retort, warning that they and other legislators were buying into the antiabortion movement's "devaluation of women's mental health."

Abortion opponents welcome this debate, which is at its most emotional and difficult when focused on those rare legal abortions after 22 weeks. Opponents have long argued that the mental health exception to those abortions was a huge loophole that make post-viability bans meaningless.

Doctors could always find a "mental health exception" to allow such abortions, they argue. What's more, they point out these are the most disturbing and objectionable of all abortions—those performed after the fetus would be viable, which is when the state's interest in fetal life is at its highest.

(Remember, that with advances in medical technology, the date of viability is much earlier than in 1973, when the Court decided Roe. So these issues have a much broader sweep than they did 35 years ago.)

Along those lines, the abortion rights groups have been equally forceful, saying the mental health exception is a critical---and constitutionally required—component of any abortion ban. They have argued that a woman's mental health is as important as her physical health—and that the debate, as Dailard says, should emphasize preserving "the gains made on behalf of people with mental illness and for women who may need abortions for legitimate mental health reasons."

Obama seems to be saying now that the only legitimate mental health reason would be mental illness. That's a departure. Perhaps this is a departure abortion rights groups have now decided to agree with—and here's hoping they weigh in when everyone's back in the office tomorrow. Perhaps it's a departure the Supreme Court now will endorse, since the Court, after O'Connor's retirement, no longer can be counted on to invalidate abortion restrictions.

Perhaps it's a restriction most Americans would support—as these exceptions tend to be most used by a narrow group of poor, young or uneducated women.

And certainly, Republican candidate John McCain has consistently supported even more draconian restrictions—to the point of saying Roe v. Wade should be overturned.

But I'd like to hear how Obama can continue to support the federal Freedom of Choice Act, which contains a broad mental health exception by specifically referring to the 1973 Supreme Court case that demands that any abortion ban contain an exception based on "all factors—physical, emotional, psychological, familial and the woman's age…all these factors may relate to health."

What is his bottom line? Is Obama still the legislator who has ardently and consistently opposed restrictions on abortion, even laws that would protect the life of an aborted fetus who happened to be "born alive." Is he now willing to support new restrictions on the right to abortion?

Or is he just playing politics with abortion in the tradition of Daschle, Durbin, et al., and again creating an issue for conservatives to seize—and one they might now win in the Supreme Court?

July 6, 2008 | Permalink | User Comments (54)

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Obama is playing politics with abortion because he is nothing but a politician just looking to get elected. 'Hope' and 'change' are just marketing tools. The whole idea put forth in the primaries that this man was some sort of savior ushering in a new era of social and government enlightenment is childish and naive at best. The kool-aid, it turns out, leave a nasty hangover (unless you keep drinking it to destruction).

Posted by: mPCT | Jul 6, 2008 12:56:57 PM

If you want ALL abortions to be ruled unconstitutional under all circumstances, then you will be very happy indeed with John McCain's choices for the Supreme Court.

Posted by: John's conscience | Jul 6, 2008 1:00:18 PM

When Obama says he's about change, apparently he meant he meant "change" his mind, and often.

The courts would not overturn Roe v Wade, they would undoubtedly turn it over to the states, WHERE IT SHOULD BE....just as the death penalty is.

Meanwhile, I'll stay tuned to see how many times Obama changes his tune on this issue. It's amusing to see who falls for it.

Posted by: Jo | Jul 6, 2008 1:02:02 PM

Independents and many democrats are seeing the recent Heller gun ban case and how it was a 5-4 decision. One more justice voting the other way and we could have lost the 2nd amendment.

THAT is what people are concerned with. Abortion is way down there, but no doubt an Obama appointee would have made the Heller decision go a completely opposite direction.

Keep your freedoms.

Posted by: Jo | Jul 6, 2008 1:04:40 PM

Isn't it a huge disappointment to find out that the great Obama is just another politician after all? The magic is over, that's for sure.

Posted by: Beth | Jul 6, 2008 1:08:25 PM

I think the Obama worshipers are missing the main point the both the writer and the anti-Obama posters are making: it's not Obama's stance on abortion (although that may be a cause for concern, if he ever reveals his true stance on it), it's his glaring, ever more obvious inability and/or desire to actually take a stance. And his wide-eyed disingenuous "surprise" that anyone would feel concern over is apparent ability to facilely change his position on any issue according to which voting block he's trying to court. Sometimes, I get the eerie feeling he's actually some kind of super advanced android commissioned by the DNC, and somewhere, computer geeks trained by these same bozos are programming Obama with his current opinions as needed. Creepy.

Posted by: Griffin | Jul 6, 2008 1:30:28 PM

Three pieces on this in three days and no call in to NARAL? If this truly Obama's "Declaration of Independence from abortion rights groups," you owe readers more than this head-scratcher:

“I’m awfully curious what they [abortion rights groups] 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.)”

Pick up a phone. Google it. NARAL provided AP a response. Tortured though it was.

Posted by: steve | Jul 6, 2008 1:31:10 PM

I've been reading how Obama is starting to have press conferences to clear up earlier press conferences because people are confused as to what he meant in the first press conference.

There's a new word out there regarding Obama. It's WORM - "What Obama Reeeeally Meant"....

This is just getting hilarious. And it's only July! Lol.

C'mon people, swallow your pride and admit it now and you'll feel better. You've been duped by a con man and now you're starting to see it all unravel.

Posted by: Jo | Jul 6, 2008 1:39:52 PM

Gag rule anyone?

John McCain always votes for it.

Posted by: John's conscience | Jul 6, 2008 2:31:13 PM

Sad world we live in. A real mother would never put her life before her unborn child's. If life doesn't begin at conception, where does it begin? At a magic 12 weeks?
Obama said he supports abortion rights because he doesn't want his daughters to be "punished" with a baby if they mess up. How about owning up to your mistakes and giving the baby to a loving family desperate for a child?
I don't love John McCain but at least he respects life, especially that of the innocent unborn.

Posted by: Lo | Jul 6, 2008 2:33:40 PM

Mental distress and mental health do not mean the same things to most people. Lots of people these days are certainly having mental distress over the economy and the price of gas. Mental health and mental distress are also certainly not the same in respect to legalistic and medical definitions. It's repetitious that the author has chosen the identical topic and person within 2 days to write about.

Posted by: kat | Jul 6, 2008 2:50:42 PM

Wonder what NARAL thinks now of the candidate they were so eager to endorse? Hopefully there will be enough "buyer's remorse" by November to send this guy back to the Senate to finish the term he told Russert he would serve out. Hillary made that promise and kept it. Obama "changed" his mind on that like everything else.

Posted by: Charlie35 | Jul 6, 2008 3:43:32 PM

Want to see the Supreme Court go BEYOND overturning Roe v. Wade, and actually say that it is unconstitutional and illegal forever?

Then you will love the people McCain appoints to the Supreme Court!

Posted by: John's conscience | Jul 6, 2008 4:28:14 PM

Hey, at this point, Obama is not far behind overturning R V. Wade. He's just sneakier about it. Because he panders. And is sneaky. And duplicitous.And sneaky.

Posted by: Beth | Jul 6, 2008 7:18:20 PM

what is the problem---it is quite simple--mccain is against abortion obama is for womans right to choose---all the bullcrap in the world will not change that fact-----it is a womans right to choose AS IT SHOULD BE---what is next stupid issue by repubs...and their hero rove----women should be outraged.

Posted by: rodney | Jul 6, 2008 8:19:50 PM

John, guess what -- I am so far from a Republican! I am a liberal. But I am adamantly opposed to Obama sneaking around saying one thing to get through the primaries and then being allowed to say another -- without being b rought up short -- in the GE. You can have a stance. But you better be able to stick to it.

All he's shown so far is a willingness to say anything, be anything, to win.

Posted by: beth | Jul 6, 2008 8:35:57 PM

more concerned about obama than their gights-----what a crock---and goodby

Posted by: rodney | Jul 6, 2008 8:50:25 PM

Nothing new here. Third day same topic. No matter how you slice it, she has to restate what she means.

Posted by: Thinking | Jul 6, 2008 9:45:41 PM

Jo,
Not all of us were duped. 1/2 the democratic party voted for Hillary, and there is a reason. Believe me, Obama's flops aren't going unnoticed to us. Trouble is, McCain is a horrible alternative, on a lot of levels. Seems this election is once again a "lesser of the two evils" calculation. Sad, so very sad.

Posted by: Angry Democratic Woman | Jul 7, 2008 7:48:44 AM

I respect the fact that mistakes happen, and abortions are the sad result. No shame on the women who undergo them.

However 22 weeks? That a woman should let her baby develop to that point without acting requires justification, and the right of society to sometimes say no.

Has any of you considered the posibility that as a cristian Obama may be sincere in believing that 22 weeks is as far he can go?

There has to be some point at which abortion becomes intfantside.

Posted by: Blame | Jul 7, 2008 4:45:12 PM

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