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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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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 pandering? Hardly. If he did, he would have sprung for that "gas tax holiday" and the offshore drilling nonsense. Mccain is the flip-flopper. 1) Did you know that in 1991, he was against overturning Roe v. Wade and now he's for that? I know that's 17 yrs ago, but most people over 55 rarely change thier views on social issues, just ask my parents. 2) Mccain was also for embroyonic stemm cell research before he was against it. 3) He called the Bush tax cuts unwise when they were proposed and voted against them but now wants to extend them. 4) He was against privatising social security, but now wants to. 5) He was against offshore drilling, but now favors it when a majority of americans support it.
With regards to abortion, a Mccain presidency will not advance the "pro-life" cause b/c his pro-life supreme court nominees will be rejected by the democratic controlled senate. Maybe more people should remember how checks and balances work. Remember also that cases can only be reviewed when an appeal reaches the court. And if the Supreme court overturns Roe, which they won't, i guarantee there will be riots in the streets and abortion will still be legal in half the states. And in the states outlawing it, the number of abortions will remain the same as it does in Russia, where it is illegal. Also, how can one be pro-life and pro-war escalation? It's hypocracy. It's time to get past our differences on this issue in order to reduce or even eliminate the need for abortions.
Posted by: Anonymous | Jul 7, 2008 5:03:51 PM
Polls show that most americans do not want roe v wade overturned but they also show that most americans see nothing wrong with a ban on partial birth abortions and a parental notification requirement for minors. We need to do the right thing and stop killing these fully developed babies just because we are unwilling to accept any restrictions on abortions. You "NARAL" types are just as bad as the nutcases over at the NRA who won't accept any restictions on guns even if it means a sensible ban on assault weapons. "Tolerance of the Intolerable" in our problem and we are probably gonna pay for it.
Posted by: Brad | Jul 7, 2008 5:04:25 PM
Mental Health is absolutely a valid reason for terminating a pregnancy. No, you don't need a specific diagnosis to qualify.
People suffering from depression, anxiety, et.al. already face prejudice in so many aspects of life, it is unconscionable to insist that their reproductive freedom be violated. No insurance company or politician has the right to invade my patient's privacy in a misguided effort to stop this person from exercising their right to control their own body.
There will NEVER be enough good homes to adopt all or close to all unwanted babies. Too many of these kids wind up being abused in foster homes or
receiving an education in crime at their local Group Home.
Obama supports reproductive freedom.
McCain does not; he's flip-flopped more
than the Olympics gymnastics team, but he toes the GOP line on this issue, and,
like usual, he's just plain wrong.
Anyone who wants to know more about the psychological impact of therapeutic abortion (completed or denied) should
review an excellent 1992 article in the
American Journal of Psychiatry on this very topic.
Posted by: Professor of Clinical Psychiatry | Jul 7, 2008 5:44:13 PM
How in the world do we make a principled distinction between a "post-viable" fetus and a baby? How is an abortion at this stage different in any important way from infanticide? Just because you don't have to look into the baby's eyes at the moment of death?
Posted by: Texan99 | Jul 7, 2008 5:47:05 PM
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."
Wow...I assume by putting born alive in quotes you mean that the human being that is now breathing on its own outside the womb is not actually a human being. How far are we from allowing the killing of babies within the first 5 minutes of "being born"?
Posted by: jz | Jul 7, 2008 6:17:37 PM
Hi, Jan! How does it feel down there under the bus? Hope you don't mind, but you know, the reproductive rights thing was getting in the way of Obama's plans for himself, so, too bad. Well, at least you have a lot of company down there. Say hello to Jerry Wright, Mikey Pfleger, Obama's grandmother, moveon.org, and the rest of the Democratic agenda.
Posted by: Eggy | Jul 7, 2008 6:19:00 PM
Obama is just another politician.
Obama is pro-choice. Very pro-choice.
McCain is not pro-choice. He generally opposes legalized abortion, but doesn't seem to concerned about it.
Obama will appoint liberal justices who will protect Roe.
McCain will try to appoint conservative justices, but if they give any indications that they might overturn Roe, they will never get through the Democratic controlled Senate.
In other words, Roe is safe under Obama and probably safe under McCain as well.
Posted by: Jim | Jul 7, 2008 6:25:09 PM
50 million dead and counting. Oh wait I forgot, that "fetus" is part of the woman's body not the child's. She might need that beating heart in case hers stops. That must be why she wants to get rid of it so badly. All this sound pro abortion logic is making my head spin...
Stop the slaughter!
Posted by: Jeff | Jul 7, 2008 6:29:37 PM
As for Obama, he's just another politician, and an inexperienced one at that. He's the Democratic version of George W. Bush - all marketing, no substance.
As for Roe, it will not be overturned. Even if it is, abortion will remain legal in most states, and the states that will criminalize it have probably already severely restricted it.
Posted by: Jim | Jul 7, 2008 6:31:28 PM
The reason many (but not all) women refuse to accept any conditions on abortion is simple: women think they are God. They decide who lives and who dies. Shameful as it is and the most ridiculous question of all is: When does life begin? I think most of us (at least the ones with brains and hearts) know that easy answer---it begins with conception-after all, where would it begin? At 18 weeks, 2 years, 3 years, etc. Pro-choicers are just fooling themselves, just as they do when they label themselves pro-choice. They can't bear to acknowledge that having or supporting abortion is killing, pure and simple. Don't believe it? then just ask yourselves why the decision would be a difficult one--if a pro-choice person really believed that it is not a life, then it would follow that there would be no "soul searching" about it. Until and unless we stop this culture of killing, how can we expect young people that commit so much murder and mayhem to change? You pro-choice people have taught them well---life is NOT to be revered because life is disposable (or so the current law says so).
Posted by: sharonann tomal | Jul 7, 2008 6:36:45 PM
Obama is a pragmatist and as a pragmatist he most likely reconsiders and challenges his past opinions. When those opinions cannot be kept rationaly then they are changed. This type of reasoning doesn't sit well with extreamists on either side b/c extreamists believe in the fundemental rightness of their opinions no matter what.
Being a pragmatist is hard in today's politics b/c a pragmatic approach to a problem does not make a good sound-byte and a pragmatist is likely to change their opinion which promts the press to lable them flip-floppers which is easier then to examine honestly the particulares of an issue or policy.
Posted by: adam | Jul 7, 2008 7:22:14 PM
I don't think just conservatives are pro-life. Any human being who is opposed to murder is against abortion. If the state ordered abortions, there would be a huge outcry about murdering small babies. Why is it different just because a woman decides to murder her baby?
Since Roe v. Wade, there have been approximately 70 million abortions. Even Hitler didn't kill that many people. People get all upset over 4,000 American troops being killed in Iraq, but, what, they are supposed to ignore the 70 million deaths of innocent babies.
At conception, my two children, Lisa and Matt, had all the DNA to become Lisa and Matt. If my wife had decided to have two abortions, Lisa and Matt would not exist on this earth today. What would that have been if not murder?
By the year 3000, there will be at least a billion total abortions in the U.S. alone. So the author of this article is apparently OK that abortions are becoming like McDonald's hamburgers -- over one billion sold. Soon, women will be going to a McDonald's window and ordering a Big Mac and, oh, an abortion to go.
Could the author please explain to us why she thinks abortion is so great.
peter
San Diego, CA
Posted by: peter clark | Jul 7, 2008 7:28:06 PM
Wanting to kill a child who is developed enought to survive after an induced labor is a sign of menal illness all by itself!
But that child has as much right to live as the mother. It should be delivered and put up for adoption if the mother does not want it. She should not be allowed to murder it.
Posted by: ds | Jul 7, 2008 7:32:39 PM
As a supporter of abortion rights, I am just embarrassed by Obama's statements. What doesn't he get about abortion being a personal issue for a woman to decide, without government intervention? I wish I could take back my vote for him.
Posted by: Sara | Jul 7, 2008 7:41:35 PM
"Don't believe it? then just ask yourselves why the decision would be a difficult one--if a pro-choice person really believed that it is not a life, then it would follow that there would be no "soul searching" about it."
If a pro-life person really believed that abortion is murder, then how much time should the woman serve who gets one? If it's not life in prison or the death penalty, then why a lesser sentence? If she shouldn't be prosecuted, then why not?
If a pro-life person really believed that abortion is murder, then what's up with "rape and incest" exceptions? We don't punish children for the crimes of their fathers.
If a pro-life person really believed that abortion is murder, then why are so many unconcerned about the abortion RATE? Abortion will continue whether it is legal or not, yet pro-lifers rarely talk about less abortion.
If a pro-life person really believed abortion is murder, then why do so many oppose contraception? Contraception prevents conception, which prevents abortion.
Posted by: Jim | Jul 7, 2008 7:42:43 PM
Ms. Greenburg misses the most important and obvious point in the debate concerning the "mental health" component of the "health exception" to any ban on post-viability abortions: The very term "post-viability" means that with proper neonatal care, the fetus involved in the pregnancy sought to be terminated could survive outside the womb. Pro-abortion opposition to legislation requiring that these pregnancies be terinated without killing the baby (inducing labor to deliver the living baby) is the best evidence that they don't merely wish to terminate the pregnancy but their real goal is to kill the baby. But don't call them "baby-killers" because that would be harsh and hyperbolic!
Posted by: Gregg Cunningham | Jul 7, 2008 7:51:50 PM
"John's conscience" has posted a couple times - great reason to elect McCain over Obama!
Jim, I'll answer your questions, as far as my pro-life views go. First - I'd prosecute the woman for manslaughter and the doctor for murder, with all the respective punishments on the table, including the death penalty for the doctor. Second - I certainly wouldn't have any sort of "rape and incest" exception. I would, however, make rape a capital crime, and I'd go for the death penalty for violent rapists every time. Third, the rate of abortion is a secondary issue to the current legality of abortion, so although it's a legitimate concern, let's have first things first and call murder by its name. Fourth, the only contraception that works all the time is abstinence, so why promote a second-best alternative? Want to talk about the right to choose? Choose to keep your legs closed and you won't have to worry about getting pregnant. Unless a woman is ignorant of the fact that SEX MAKES BABIES, she should realize that having sex might result in a pregnancy, so she ought to be prepared for having and raising a child.
Obama's an insincere, inexperienced, hyperpartisan, opportunistic career politician, and his popularity and candidacy speaks poorly of the American people (well, half of them).
Posted by: Reiniger | Jul 7, 2008 8:29:45 PM
John's conscience, You obviously know nothing about the law or the Constitution. If Roe v. Wade was overturned, abortion would not be "unconstitutional." It would be an issue to be decided by the people through their elected representatives. Abortion would be legal under certain circumstances if the lawmakers voted that way. It would probably be banned for unborn who are old enough to survive outside the womb except to preserve the life of the mother (a rare circumstance). The Supreme Court is not ever suppose to create laws, it exists to decide cases and if it overturned Roe v. Wade that would not suddenly make abortion illegal, and certainly would not make it "unconstitutional."
Posted by: James | Jul 7, 2008 9:00:58 PM
This is Obama's statement on his web site. I have to assume that it will remain his position.
"REPRODUCTIVE CHOICE
Supports a Woman’s Right to Choose:
Barack Obama understands that abortion is a divisive issue, and respects those who disagree with him. However, he has been a consistent champion of reproductive choice and will make preserving women’s rights under Roe v. Wade a priority as President. He opposes any constitutional amendment to overturn the Supreme Court's decision in that case.
Preventing Unwanted Pregnancy:
Barack Obama is an original co-sponsor of legislation to expand access to contraception, health information and preventive services to help reduce unintended pregnancies. Introduced in January 2007, the Prevention First Act will increase funding for family planning and comprehensive sex education that teaches both abstinence and safe sex methods. The Act will also end insurance discrimination against contraception, improve awareness about emergency contraception, and provide compassionate assistance to rape victims."
Posted by: Ruthie J | Jul 7, 2008 9:03:34 PM
What annoys me is that Obama is somehow being labeled as a flip-flopper for discussing this issue in greater detail. The issue of abortion rarely came up in the primary and when it did, everyone gave a simple response that they supported Roe v. Wade. Now, we are in the general election and Obama is discussing more specifics on what type of legislation he may or may not be comfortable with. Obama supports the precedent set with Roe v. Wade, McCain apparently does not even though he did in 2000. The other specifics about abortion legislation is generally irrelevant to the big picture. Obama has supported legislation to help reduce abortions but not restrict the access to abortions. McCain has supported legislation to restrict abortions but has really not supported the comprehensive prevention needed to avoid the decision of abortion in the first place. This is what is important not a debate over what we define as mental health after 22 weeks of pregnancy.
Posted by: MicahB | Jul 7, 2008 10:26:16 PM
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