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

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24