Obama Clarifies his Position on Late Term Abortions

by Damozel | Obama has clarified his supposed opposition to allowing a woman to have a late term abortion in circumstances when the pregnancy causes the mother mental distress. (The Swamp)  He does not think mere 'mental distress' is a reason to permit such an exception.

According to Linda Douglass, the Obama campaign's senior spokesperson, the senator from Illinois was making a distinction in the magazine interview between medically diagnosed mental illness and the kind of mental distress that an unwanted pregnancy causes many a pregnant mother.  (The Swamp)

He does think such an exception should be permitted in circumstances in which there is medically diagnosed mental illness -- a position that still doesn't really please either side of the abortion argument. (The Swamp) 

This exception is still narrower than under existing law and wouldn't cover situations where legislation banning abortions except where there is 'diagnosed mental illness' might have very cruel consequences (discussed below). It's not an easy question and I am not going to attack Obama for struggling with it.  I would like to clear up any perception that some of us who are concerned about the issue aren't advocating that women should be able to abort a viable fetus just because they are feeling, as Obama put it, 'a little blue.'   I hope he will think about, and refine, his position further.

At Legalities, the ABC News law blog, Jan Crawford Greenburg discusses the underlying law.

....35 years of Supreme Court jurisprudence on the issue...has always demanded that abortion bans contain an exception to allow the procedureto protect a woman's "mental health," as well as her physical health. Only Justices Thomas and Scalia have expressed the view that a "mental health" exception is not required....

In clarifying his remarks, Obama said this afternoon that he has "consistently" said health exceptions are required for laws banning or seriously restricting abortion. But he then goes on to try to carve out exceptions to the exceptions, and he ends up suggesting, again, he would support more limits on abortion than the law currently allows.

Obama said:

My only point is that in an area like partial-birth abortion having a mental, having a health exception can be defined rigorously. It can be defined through physical health, It can be defined by serious clinical mental-health diseases. It is not just a matter of feeling blue. I don't think that's how pro-choice folks have interpreted it. I don't think that's how the courts have interpreted it and I think that's important to emphasize and understand.

Back to Jan Crawford Greenberg:

Obama is trying to restrict abortions after 22 weeks to those women who have a serious disease or illness. But the law today also covers some women who are in "mental distress," those women who would suffer emotional and psychological harm without an abortion....

This standard has long been understood to require less than "serious clinical mental health disease."  Women today don't have to show they are suffering from a "serious clinical mental health disease" or "mental illness" before getting an abortion post-viability, as Obama now says is appropriate.

Subsequent cases in the Supreme Court and lower courts have said states cannot ban abortions where the doctor deems them necessary to protect a woman's physical and mental health. Lower courts have taken that to mean a state cannot prohibit an abortion—even one post-viability--if the woman would suffer severe emotional harm without it....

The Court has said the Constitution prohibits states from banning post-viability abortions unless those laws contain a broad mental health exception---one that includes mental distress and severe emotional harm. Abortion rights groups have fought for decades to preserve these exceptions, and I'm awfully curious what they will think about limiting them to women with mental disease or mental illness.

Even so,  Ann Althouse is furious that Obama has revised his previous opinion to concede a 'serious clinical mental health disease' exception.

So as long as a woman can get her "blues" classified by a medical health professional as "depression," she has a right to a late term abortion no matter how strongly the majority of citizens feel about the immorality of destroying a fully viable human entity? And that's rigorous?

Incredible. That would be incredible even without the prior inconsistent statement.

A. Althouse and 'the majority' may or may not be correct about the morality of a woman's choosing to to have a late term abortion based on 'mental illness' or of a physician's agreeing to perform such a procedure. 

That's not what we're talking about here, though.  We're talking about whether Obama opposes a recognized exception to a state's right to prohibit late term abortions. 

For that matter, you can believe that it is morally questionable for a woman to have a late term abortion  if bringing the child to term would cause her severe mental and emotional distress while opposing the view that states should be able to pass laws to restrict or ban such procedures.

And of course, it's not the case that what we're talking about here is a woman saying at 22 weeks; 'I'm feeling depressed lately.  I've changed my mind.  I don't think I feel like going through with it.' 

Jill at Feministe identifies some circumstances in which reasonable people might agree that 'mental health concerns' might justify a late-term abortion.

[M]ental health underlies many of actual reasons women have late-term abortions. Take severe fetal abnormalities — where a wanted pregnancy goes wrong, and the problem isn’t discovered until relatively late. In many situations — anencephaly, for example — carrying the pregnancy to term might not be any more dangerous than carrying a healthy fetus to term.....[M]any fetal abnormalities don’t pose the kind of physical harm to the pregnant woman that would seem to pass anti-choice...muster. (To be clear, many fetal abnormalities do pose significant health risks — it’s just not the rule. Which is precisely why this issue should be evaluated case-by-case between a woman and her doctor, and politicians should butt out).

So even though many fetal abnormalities don’t threaten the pregnant woman’s health or life, most people seem to agree that it’s cruel to force a woman to give birth to a baby that cannot possibly survive.... But if a doomed pregnancy doesn’t threaten a pregnant woman’s physical health, why would we allow her to terminate it?

Because, obviously, it threatens her mental health in no small way. Being forced to carry a wanted but doomed pregnancy, and being forced to go through childbirth to produce a dead or dying baby, is understandably deeply emotionally traumatic. We want to give women the option to avoid that kind of mental trauma because we recognize that physical harm is not the only harm that matters. (Feministe; paragraph break inserted)

More at Memeorandum here.

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