Monday, September 26, 2022
Was Overturning Roe a “Blessing”? Only if Democrats Can Avoid the Details of the Right to Abortion – JONATHAN TURLEY
Washington Post fact-checker Glenn Kessler on Thursday swatted down questions about late-term abortions as being “disingenuous.” Instead, he insisted these are questions involving “painful, emotional and even moral decisions.” They are. But they also involve the very legal questions addressed in past Supreme Court cases, including Gonzales v. Carhart, upholding Congress’ right to ban late-term abortion techniques.
While Kessler focused on whether late-term abortions are “common,” the issue is whether a woman has a constitutional right to late-term abortions. The answer to that question can help understand the meaning of this right and any balancing of interests recognized in cases like Roe. (While states could adopt a more permissive approach under Roe, it stressed that the state had a powerful interest later in a pregnancy to protect the life of the baby.)
Late-term abortions are rare, but they do occur — for a variety of medical and personal reasons. Kessler admits that “in 2021, state records show, about 1.8 percent of 11,580 abortions in Colorado took place after 21 weeks, but just 60 took place at 25 weeks or later.” That is 268 late-term abortions in Colorado in one year, a small percentage but not inconsequential. More importantly, the question is whether a woman has an absolute right to demand such an abortion and, if not, why? Even if statistically rare, the answer is legally significant in understanding the meaning of this right.
The fact is that Americans are overwhelmingly opposed to a claimed right to late-term abortions. Indeed, a majority supports limits on abortion after 15 weeks.
Polls show most Americans reject extreme or absolute positions on either side of the abortion issue. Polls also show that 65 percent of Americans would make most abortions illegal in the second trimester, and 80 percent would make most abortions illegal in the third.
The United States is one of only 12 among the world’s 198 countries that allow abortions for any reason after 20 weeks; 47 out of 50 European countries ban abortions at around 15 weeks. Such bans are found in countries like France, Germany, Belgium, Denmark and Spain.
Rather than address the legal and policy questions of when a right to abortion is limited or extinguished, many politicians repeat the mantra that the decision rests entirely with the woman. There is a preference to discuss anything other than restrictions of the right.