Reactions to abortion murder verdict highlight chasm between advocacy groups

Published: Thursday, May 16 2013 7:50 p.m. MDT

But Hogue is on less solid ground when complaining about regulatory failure in the Gosnell case endangering women. As the grand jury report made clear, the regulatory failures were a conscious decision by a pro-choice Republican governor to unshackle abortion providers.

“Ridge is a pro-choice Republican and it was his administration that decided to halt annual inspections of Pennsylvania’s abortion clinics,” said J.D. Mullane in an interview with National Review. Mullane is the Bucks County Courier Times reporter who doggedly reported the trial throughout.

“This happened because the Ridge administration felt shoddier clinics like Gosnell’s would be forced to close if inspectors from the state department of health came through and did their jobs,” Mullane said. “Closing clinics would create a 'barrier' for women seeking abortions, and Ridge didn’t want that. Though Tom Ridge is a chatty guy, he has maintained radio silence on Gosnell. Now you know why.”

Mushy middle

Kirsten Powers ratcheted up her criticism of the "abortion rights contingent” in a Daily Beast column last week, calling it the “NRA of the left.” By this she means it is unyielding, dogmatic, uninterested in compromise and impervious to logic.

What Powers is looking for is a more nuanced conversation, leading to more balanced policies — nuances like those expressed by Wall Street Journal columnist James Taranto.

Taranto has always been pro-choice but is now officially flummoxed. "Any line one could draw between acceptable abortion and homicide would be an arbitrary one. Both extremes in the abortion debate are united in rejecting the line-drawing exercise in principle for that reason. But either 'principled' position leads to monstrous results.”

Taranto cannot fathom forcing a rape victim to carry a resulting pregnancy, and sees a policy based on “life at conception” as "draconian and unenforceable, perhaps both.” But he also cannot accept late-term abortions. What he doesn’t know is where he would strike the balance.

Testing boundaries

Roe v. Wade held in 1973 that abortion could be restricted at 28 weeks, Taranto notes, a decision that relied heavily on “trimesters,” a concept lacking any foundation in medicine or biology. Roe was supplanted in 1992 by Casey v. Planned Parenthood, which said the state could regulate 23 or 24 weeks — a point still thought to be the threshold of viability outside the womb.

The pro-life lobby is now pushing the boundaries of what Taranto calls the “mushy middle." Ten states have now adopted laws that prohibit late-term abortions not using fetal viability as the line in the sand, but rather fixing it at the point when fetus is thought to experience pain, held to about 20 weeks.

Nebraska, Alabama, Arkansas, Arizona, Georgia, Idaho, Indiana, Kansas, Louisiana and Oklahoma have all adopted fetal pain statutes. Idaho's was recently struck down in federal court, and this latest challenge to Roe seems destined for the Supreme Court.

In challenging Roe, these new laws are also challenging a lesser known but equally important Supreme Court ruling issued at the same time as Roe. This is Doe v. Bolton, the decision that held that late-term abortion restrictions had to provide a sweeping health exception.

Doe is critical because even though Roe did allow state regulation at later stages of pregnancy, Doe subjugated those late-term restrictions to mother’s health. And health was defined sweepingly. Any effort to regulate late-term abortions must deal with the “health of the mother” limits under Doe.

Defining health

“We agree with the District Court,” the Supreme Court held in Doe, “that the medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman's age — relevant to the well-being of the patient. All these factors may relate to health.”

The resulting law is summarized by the pro-choice Guttmacher Institute: "Only the physician, in the course of evaluating the specific circumstances of an individual case, can define what constitutes ‘health’ and when a fetus is viable; and states may not require additional physicians to confirm the attending physician’s judgment that the woman’s life or health is at risk in cases of medical emergency.”

Doe thus places the entire decision in the hands of the mother and her doctor, giving subjective psychology and emotions infinite latitude. State restrictions on late-term abortions without broad health exceptions are unconstitutional, while those with such exceptions are unenforceable.

With fetal pain statutes now embarking on the long ascent to the Supreme Court, and with the appalling realization that 12 inches of geography marks the boundary between medicine and murder now fresh in the public consciousness, an uncomfortable national discourse on nuances — a conversation essentially short-circuited since 1972 — may be in the offing.

If so, Gosnell, like Gollum in the “Lord of the Rings,” may have served a useful purpose in spite of himself.

Eric Schulzke writes on national politics for the Deseret News. He can be contacted at eschulzke@desnews.com.

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