Explainer: What you should know about the law protecting late-term abortions

February 1, 2019

What just happened?

Earlier this week a video clip of a Virginia lawmaker saying she would allow abortions up until the moment of birth gained national attention. In the video, Del. Kathy Tran (D-Fairfax) admits that her proposed legislation, House Bill No. 2491, would let a woman ask for a late-term abortion for mental health reasons.

Another video surfaced of Virginia Democratic Gov. Ralph Northam responding in an interview to a question about whether he supported Tran’s abortion legislation. In his response, Northam, a former pediatrician, appeared to support a form of infanticide by medical neglect. His office later released a statement saying he was referring to “tragic or difficult circumstances, such as a nonviable pregnancy or in the event of severe fetal abnormalities” when “the actions physicians would take in the event that a woman in those circumstances went into labor.”

While the videos are shocking, many Americans are unaware that the “health exception” already allows such late-term abortions in every state in the union.

What is the “health exception” to abortion?

The health exception is a legal precedent established by the Supreme Court that allows no restrictions to override a woman’s decision to have an abortion if it would endanger her life or her health.

Because of this standard, a physician has the sole discretion and authority to conduct a late-term abortion at any point prior to natural birth if he or she deems it necessary to protect the woman’s physical, emotional, psychological “health.” Also, because federal law trumps state law, individual states cannot enact statutes that override this standard.

Where does the health exception come from?

On the day in 1973 when the Roe v. Wade decision was handed down, the U.S. Supreme Court also issued a ruling in Doe v. Bolton. In that case, the Court set a condition under which an abortion could be obtained at any point during a woman’s pregnancy.

First, the Court established that a licensed physician had the authority and competence to determine if an abortion was medically necessary to protect the mother’s health and that no other physician or hospital abortion committee needed to be consulted. As the majority opinion stated, “Required acquiescence by co-practitioners has no rational connection with a patient’s needs, and unduly infringes on the physician’s right to practice.”

Second, the Court stated that a woman may obtain an abortion after viability (i.e., the period when the fetus could potentially survive outside the womb) if necessary to protect her health.

Third, the Court defined “health” in broad terms that include “physical, emotional, psychological, familial, and the woman’s age” and put the determination of what constitutes health solely at the discretion of the abortionist.

Can’t states ban abortions after viability?

Individual states can pass legislation that protect fetal life after viability. However, such laws cannot override or nullify the health exception.

In 1992, the Supreme Court reaffirmed Roe in the case of Planned Parenthood of Southern Pennsylvania v. Casey. The ruling replaced the trimester formula in Roe with an emphasis on viability and allows states to restrict abortions after fetal viability “if the law contains exceptions for pregnancies which endanger the woman’s life or health.”

Isn’t there a ban on partial-birth abortion?

Yes, but the ban on partial-birth abortion applies only to a procedure and does not affect the timing of an abortion. The partial-birth abortion ban does not override or nullify the health exception.

In 2003, Congress passed and President Bush signed the Partial-Birth Abortion Ban Act. The Act defined a partial-birth abortion as any abortion in which the death of the fetus occurs when “the entire fetal head . . . or . . . any part of the fetal trunk past the navel is outside the body of the mother.” That law was challenged in the 2007 case of Gonzales v. Carhart. The Supreme Court ruled that the particular procedure could be banned because it did not interfere with a woman’s right to an abortion.

How many late-term abortions are conducted in the U.S. every year?

The term late-term abortion is loosely defined as an abortion that occurs after viability (around 20 weeks). According to the Centers for Disease Control, approximately 1.3 percent of abortions in 2015 occurred after 21 week’s gestation (that was the last year for which complete statistics are available). Based on this rate, and a reported 638,169 abortions that year, we can estimate that the number of late-term abortions were 8,296.

Isn’t it true that late-term abortions are only conducted when the mother’s life is at stake?

No. The question of whether abortion is ever necessary after viability is hotly contested within the medical community. But even if it is sometimes necessary, saving the life of the mother is rarely the reason late-term abortions are conducted. As even the pro-abortion Guttmacher Institute admits, “data suggest that most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.”

According to a 2013 study, most women seeking a later abortion fit at least one of five profiles: they were raising children alone, were depressed or using illicit substances, were in conflict with a male partner or experiencing domestic violence, had trouble deciding and then had access problems, or were young and had never given birth before.

Because the health standard includes psychological factors, almost any reason for a late-term abortion can be justified by an abortionist. As Phill Kline, the former Attorney General of Kansas, has pointed out, the late-term abortionist George Tiller frequently used the health exception to justify post-viability abortions. Tiller’s files included such reasons for late-term abortions as a desire to go to prom and another to avoid hiring a babysitter while attending rock concerts. To each of these “conditions,” Tiller assigned a mental health diagnosis of “adjustment disorder,” “anxiety disorder,” or “single episodic severe depression.” Tiller considered all of these mental conditions to be “permanent” and the only “treatment” to be an abortion.

If late-term abortions are already protected by federal law, why are some states trying to pass legislation to limit restrictions after viability?

In state legislatures across the U.S., lawmakers are preparing for the potentiality that the Roe decision will be overturned. A reversal of Roe would not make abortion illegal but would merely send the issue back to the individual states.

Some states have already implemented pro-life legislation. Currently, four states—Mississippi, Louisiana, North Dakota, and South Dakota—have “trigger laws” that will immediately ban abortion if Roe is overturned. Several other states, though, have laws on the books to maintain the status quo. Currently, eight states protect abortion in their constitutions—Alaska, California, Florida, Massachusetts, Minnesota, Montana, New Jersey, and New Mexico—while nine more states—Connecticut, Delaware, Hawaii, Maine, Maryland, Nevada, New York, Oregon, and Washington—protect abortion by state statutes.

Many pro-abortion legislators recognize that the health exemption has been a powerful tool for staving off restrictions and are attempting to codify this standard into state law.

Joe Carter

Joe Carter is the author of The Life and Faith Field Guide for Parents, the editor of the NIV Lifehacks Bible, and the co-author of How to Argue Like Jesus: Learning Persuasion from History’s Greatest Communicator. He also serves as an executive pastor at the McLean Bible Church Arlington location in Arlington, Virginia. Read More