The partial-birth abortion ban passed by Congress in 2003 did not stop all abortions of viable babies. It simply banned one procedure, described by Daniel Patrick Moynihan, the late Democratic senator from New York, as “too close to infanticide.” Barack Obama himself endorsed the idea of a late-term abortion ban when campaigning in 2008. “I think it’s entirely appropriate for states to restrict or even prohibit late-term abortions as long as there is a strict, well-defined exception for the health of the mother,” he told a Christian magazine, adding, “Now, I don’t think that ‘mental distress’ qualifies as the health of the mother. I think it has to be a serious physical issue that arises in pregnancy, where there are real, significant problems to the mother carrying that child to term.”
And yet America has a far more liberal abortion regime than the one Obama claimed he would support in 2008. Even though some infants born as early as 20 weeks survive, most state restrictions kick in only at 24 weeks. And most “health” exceptions for late-term abortions cover much more than serious danger to physical health. In conformity with Roe v. Wade’s companion case, Doe v. Bolton, a health exception must cover “psychological” and “emotional” health, a loophole so big as to render the restrictions meaningless. Justice Anthony Kennedy, the Supreme Court’s swing vote on abortion, has never explicitly endorsed the expansive health exception in Doe, but he has ruled repeatedly that abortion can be restricted after viability. We can’t know whether Kennedy and the Court would uphold a late-term abortion ban. But that should not deter Congress from passing such a nationwide ban, so as to rein in an abortion regime that is tantamount to infanticide on demand.
Some pro-choice Americans will object if there is no exception allowing late-term abortions in the case of disabled babies, such as those with Down syndrome and spina bifida. Some pro-lifers will object as well, in that a late-term abortion ban would still leave the country’s abortion laws more liberal than those of many European countries and would seem to accept the Supreme Court’s viability standard. But any line drawn later than conception is somewhat arbitrary. The right to life is not bestowed when a fetus becomes old enough to live outside the womb. Neither is it bestowed when a baby is half-delivered, which is the line drawn by the partial-birth abortion ban, yet we drew that line without conceding the principle that a child in the womb has a right to live. We drew it, furthermore, for the entire country, without concern the law was trampling on states’ rights.
So drawing a line at, say, 18 weeks after conception would likely pass muster with the Supreme Court and with the vast majority of Americans. It would be also be a line that could move up as medical science advances.