Was Overturning Roe a “Blessing”? Only if Democrats Can Avoid the Details of the Right to Abortion

Below is my column in the Hill on the focus on abortion in this election, including the advocacy of an absolute right to abortion by many Democratic candidates.  President Joe Biden has voiced such a rule that any abortion decision should be left entirely to women.  When media pressed to confirm that the President does not believe that there should be any restrictions, the White House has simply refused to say. Thus, the President continues to campaign on the issue while refusing to answer questions on how he defines the right and any restrictions. It is the same approach that the President took during the last presidential campaign where he simply refused to state his position on court packing until after the election. This is an obviously important and valid issue to campaign on for the midterm elections.  Abortion is clearly rallying many to the polls due to the support for Roe. However, candidates of both parties should be clear on the meaning and scope of this right. Indeed, it is interesting to see the level of focus on this right with little substantive discussion on the scope of the right in campaigns.

Here is the column:

“A blessing in disguise.” Those words from a Democratic political consultant refer to the Supreme Court’s overturning of Roe v. Wade, which he described as giving “Democrats a renewed optimism about this year.”

In Dobbs v. Jackson Women’s Health Organization, the court returned the question to the citizenry to determine whether there is a right to abortion in any given state. What happened next, though, is a bit curious: Most Democratic politicians, including President Joe Biden, are declaring that a woman alone should make any decision in consultation with her doctor — an absolute interpretation of the right that was not supported in Roe and that runs counter to the view of most voters.

For that reason, when pressed, most candidates are steadfastly avoiding questions on any restrictions, including questions about late-term abortions.

Senate candidate Tim Ryan (D-Ohio) has adopted an absolute position that there should be no limits on a woman’s right to abortion — far beyond anything in Roe or Casey — and has refused to address whether this would mean that a fully formed baby in the ninth month of pregnancy could be aborted.

Kansas Gov. Laura Kelly (D) has been accused by her opponent, Attorney General Derek Schmidt (R), of opposing any restrictions on the right. But when asked by the media, Kelly has replied: “You know, I have never said that.

The question is what politicians on both sides have to say about specific restrictions and not just about the right.

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.

That was evident in a recent interview with Democrat Stacey Abrams, who is running for Georgia’s governorship. Abrams was discussing abortion as an issue in the upcoming election and declared that “there is no such thing as a heartbeat at six weeks. It is a manufactured sound designed to convince people that men have the right to take control of a woman’s body.”

Abrams voiced a position put forward by Planned Parenthood, which changed its prior position of a “very basic beating heart” at 5 to 6 weeks of pregnancy. Now, it maintains that a “part of the embryo starts to show cardiac activity. It sounds like a heartbeat on an ultrasound, but it’s not a fully-formed heart.”

The point is that people do not have to think of this as a heartbeat but rather as “cardiac activity [that] sounds like a heartbeat.” Although Abrams put it in the more sensational terms of a male conspiracy against women, it is a distinction drawn by the American College of Obstetricians and Gynecologists (ACOG), which says that, since the chambers of the heart are not fully formed, it is “clinically inaccurate” to call it a heartbeat.

Recognizing a heartbeat no more concedes abortion as a right than it supports the right. The question is, first, whether such a right exists under state or federal law (as most Americans believe it does) and then whether that right is absolute or diminishes with the term of a pregnancy.

That is why late-term abortions are relevant in this debate if we are to understand a candidate’s view of this right. When pressed, there has been backtracking or evasion on both sides of the abortion issues, including by some Republicans who are taking back earlier, more extreme positions.

In the case of Abrams, she previously rejected limits and said it should be left up to a mother and her doctor, which means legally leaving it up to the mother. Recently, Abrams declared she would support a right “until a physician determines the fetus is viable outside of the body, except in the case of protecting the woman’s life or health.” The question is the scope or meaning of the health exception.

There should be clarity on precisely how far this right extends, even in the relatively rare cases of late abortions. Those extremes not only define the scope but the right itself. They may also determine the support of the public, which is far more moderate than their leaders on this issue.

Whatever the “blessing” of Dobbs proves to be in this election, the absolute, unlimited right to abortion finds little support in either Roe or the public.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

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