A Health Exception

“Health” was defined by the US Supreme Court. It said abortion could be performed: “In the light of 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.”
Roe vs. Wade, Jan. 22, 1973

In its companion decision, the court stated: “Maternity or additional offspring may force upon the woman a distressful life and future. Psychological harm may be eminent. Mental and physical health may be taxed by childcare. There is also stress for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically or otherwise, to care for it.”
Doe vs. Bolton, Jan. 22, 1973

In a concurring opinion, Justice Douglas stated that health included if she had to: “endure the discomforts of pregnancy; endure the pain, higher mortality rates and aftereffects of childbirth; abandon educational plans; sustain loss of income; forgo the satisfactions of careers; tax further mental and psychological health in providing childcare, and, in some cases to bear the lifelong stigma of unwed motherhood.”
Roe vs. Wade, Jan. 22, 1973

As a result of the above decisions, the word “health” has become a legal term of art. The overwhelming majority of the general public thinks of it as physical or maybe emotional health that would seriously threaten the life of the mother. In fact, when “health” is in a law, it guarantees abortion-on-demand until birth. It can be briefly described as including physical and social well being as defined by the woman herself. Every attempt in law to directly limit abortion has stumbled on this rock. Most recently, we have seen three federal district courts in California, Nebraska and New York enjoin the new federal ban on partial-birth abortions. All three of them referred directly to the fact that it did not have a “health” exception. Two of these judges, by their history and writing, were clearly pro-abortion sympathizers. Judge David Casey in New York, however, was clearly different. He asked very piercing questions requiring extremely vivid detailed and graphic answers. As the case proceeded in front of him, many of us became more and more hopeful that his decision might be to uphold the law. Sadly, we were to be disappointed. Judge Casey had forced them to admit abortions kill live babies who experience excruciating pain during the abortion. He found that the pro-abortionist’s attempts to justify partial-birth abortions were “false, incoherent or merely theoretical.” He rejected their contention that partial-birth abortion was sometimes justified for medical reasons and called the procedure “gruesome, brutal, barbaric and uncivilized.” But in the end, he enjoined the law. Why? He said that he had to, citing the above cases and the more recent US Supreme Court case in 2000, Stenberg vs. Carhart. Judge Casey said that a health exception is constitutionally required, so he was bound to rule against the law.

The Partial-Birth Abortion ban in question had been carefully tailored. Previous court decisions against partial-birth abortion bans had basically given two reasons. One was lack of clarity, stating that it could be confused with the earlier and quite different dilatation and evacuation, which is a live dismemberment inside of the uterus. This new federal law, whose prime sponsor was Congressman Steve Chabot, quite clearly delineated the difference. They couldn’t hang their decisions on vagueness this time.

The other objection was the lack of a health exception. Congressman Chabot and his committee had labored long and hard and came up with several pages of expert medical testimony. This included medical facts proving conclusively that there was no legitimate health reason for doing a partial-birth abortion. Even so, at least in these three lower court decisions, it seems that the health exception required by the US Supreme Court was non-negotiable. These three cases will likely be appealed. It is not the role of a federal district court to change laws. Appellate courts can do so, but the Supreme Court has the power and tradition and could, of course, accept the new Chabot federal law if it wished. Pro-life veterans, however, are not betting the mortgage on such a change by the High Court, at least not if the current membership sits in judgment.

The New Ohio Law
Ohio was the first state to pass a law forbidding this gruesome procedure. It was called a “brain suction bill.” It forbade this procedure but swept more broadly, prohibiting all late-term abortions. The US Supreme Court enjoined it.

Benefiting from Ohio’’s groundbreaking experience, Congressman Canaday crafted a new bill in the US House of Representative and renamed it “Partial-Birth Abortion.” This bill passed but was vetoed by President Clinton. A second passage, several years later, met the same fate.

In the meantime, almost half of the states had passed their own bans on partial-birth abortions. Two of these cases, Nebraska and Wisconsin, made it to the US Supreme Court, which struck them down in Stenberg vs. Carhart. The reasons given were vagueness and lack of a health exception.

Benefiting from all of the above, Ohio proceeded to pass a second law. This one very clearly described the procedure, thereby eliminating any “vagueness.” Unlike the federal laws, it did include a health exception. By doing so, it plowed new ground for this type of bill. From the time of the Supreme Court Casey decision in 1992, Ohio had noted that a health exception in their protective bill had not been challenged and has remained in force. The Casey decision did not strike its health exception, which had very tight wording. It stated that “health” meant when it is “necessary in reasonable medical judgment to preserve the life or health of the mother, as a result of the mother’s life or health being endangered by a serious risk of substantial and irreversible impairment of a major bodily function.” Under the Casey law, abortion in Pennsylvania was forbidden after 24 weeks and allowed after that only when this new health exception applied. Information from veteran pro-life activists tells us that since 1992 there have only been two abortions done in that state after 24 weeks. Clearly, this particular health exception wording has been almost totally successful in limiting late-term abortions in Pennsylvania.

As a result, the newer Ohio ban on partial-birth abortion incorporated a health exception but used the exact same wording that was operational in Pennsylvania and had not been challenged.

Dayton, Ohio, is the home of Martin Haskell, the original abortionist who pioneered the partial-birth abortion. He challenged the new Ohio law, which was enjoined by a Federal District Court. It went to the Sixth Circuit Court of Appeals. There, on a two to one vote, the Ohio law was declared constitutional. He asked for an en banc decision of the entire Sixth Circuit. It considered the case and voted to agree that the law was constitutional. Haskell formally decided not to appeal to the US Supreme Court. The Sixth Circuit then immediately ruled that the law would be in force in Ohio and constitutional throughout the Sixth Circuit. Therefore, if the states of Michigan, Kentucky and Tennessee also passed this legislation, it would be in force unless appealed to the US Supreme Court.

As of this writing, it is too early to know whether or not Haskell will try to get around the law in some other fashion. Clearly, there are other ways of killing late-term babies, and Ohio’s law forbids only this one procedure. He and others are free to kill late-term babies through the equally gruesome D&E method; i.e., reaching up into the womb and tearing arms and legs off of the live baby and pulling these and the rest of the body out of the mother.

The Future
No one knows what the future holds, but much will depend on the upcoming presidential election. If John Kerry is elected, the situation will be desperate for at least four more years and perhaps much longer because of his likely new Supreme Court appointments. If President Bush is re-elected, the hope exists that his appointments to the US Supreme Court may well tilt the balance against Roe vs. Wade.

However the above plays out, the controversy over partial-birth abortion has had an immense impact on our nation. No, it hasn’’t saved any babies yet. Most agree that the abortion industry can kill late-term babies by other methods. True enough, but what this controversy has done has been to lay in front of our nation the whole grizzly mess.

Prior to this, it was generally accepted and continually reported by the press that abortion was only legal for three months of pregnancy. Now our nation knows it is legal until nine months, and for social and economic reasons. Our nation knows that live babies, in the process of delivery, are being cruelly killed. Further, that over 90% of these babies are entirely normal and almost all of the pregnancies are not a health risk to the mother. It is during the years when this controversy has been aired, that we have seen a specific drop in pro-abortion support in the United States. During this time we have seen a sharp increase in Pro-Life support, particularly among young people.

The controversy continues. Two different partial-birth abortion bans are now in the public arena. We shall see.