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Kagan Supported Daschle's Phony Late-Term Abortion Ban in '97

The Supreme Court still mandates abortion-on-demand throughout all 9 months of pregnancy.

11:59 AM, May 11, 2010 • By JOHN MCCORMACK
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Via Jennifer Rubin and Allahpundit, the AP reports that in 1997, Elena Kagan, then a presidential adviser, encouraged President Clinton to support Tom Daschle's bill "that would have banned all abortions of viable fetuses except when the physical health of the mother was at risk."

So, will the left begin shrieking with outrage? Maybe--but only for the sake of kabuki theater. The Daschle late-term abortion ban was a sham all along, as the National Right to Life Committee pointed out:

Another “phony ban” substitute amendment proposed in the past by Senator Tom Daschle (D-SD) and Richard Durbin (D-Il.) would not affect the typical partial-birth abortions performed in the late second trimester.  Even in the seventh month and later, the substitute would permit abortions based on any degree of “risk” of “grievous injury to her physical health.”  Dr. Warren Hern, a leading practitioner of very late abortions who wrote the textbook Abortion Practice, commented on the Daschle amendment, “I say every pregnancy carries a risk of death,” and therefore, “I will certify that any pregnancy is a threat to a woman’s life and could cause ‘grievous injury’ to her ‘physical health.’” (in USA Today and Washington Times, both May 15, 1997)

More to the point: the Daschle ban was a sham because any abortion law that would limit the "health" exception to physical health would be struck down by the Supreme Court.

Roe v. Wade held that states could ban abortions after the stage of "viability" "except" when the "life or health of the mother" was at stake: 

For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

Roe's companion case Doe v. Bolton defined "health" as such:

"medical judgment may be exercised in the light of all factors -- physical, emotional, psychological, familial, and the woman's age -- relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment." [emphasis added]

Planned Parenthood v. Casey did nothing to alter the definition of health:

Roe's holding that "subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother" is also reaffirmed

But, wait, you say? Didn't the federal government outlaw late-term abortions in 2003 with the Partial-Birth Abortion Ban Act? Nope. It banned a particular method of abortion, in which "any part of the fetal trunk past the navel is outside the body of the mother."

To conclude: the Supreme Court has dictated that it is legal to dismember, crush, or poison to death a fetus throughout all nine months of gestation--so long as (1) that child's body has not been delivered past its navel and (2) a doctor invokes a "health" exception, citing one of the following factors: "physical, emotional, psychological, familial, [or] the woman's age."

In other words, if you support Roe v. Wade, you are, in effect, supporting abortion-on-demand in all 50 states throughout all nine months of pregnancy.

You may recall that Obama's campaign promised that he "will make preserving women's rights under Roe v. Wade a priority as President." When candidate Obama suggested on the campaign trail that "we can prohibit late-term abortions" and have a health exception that doesn't include "mental distress," ABC's Jan Crawford Greenburg pointed out that Obama's view is "contrary to 35 years of Supreme Court jurisprudence on the issue." Then Obama tried to walk back his statement.

It would be worth asking Kagan at her hearing about the Supreme Court's "health" exception for late-term abortions, if only to education the public on how shockingly broad it is.

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