In comments on my last post, Reg asked if aborting a viable fetus wasn’t actually illegal in Kansas, where Dr. George Tiller’s clinic was located. Well, the answer is complicated. It’s not completely illegal, but Reg is correct that the U.S. has a patchwork of state laws that vary quite widely.
Like every other state, Kansas is bound by the provisions of Roe v. Wade, which permits abortion of a viable fetus only if the woman’s life or health is in danger. Like many other states, Kansas has attempted to circumscribe the health exception:
Kansas’ post-viability abortion restriction provides that no abortion may be performed after viability unless the attending physician and another financially and legally independent physician determine that an abortion is necessary to preserve the woman’s life or continuation of the pregnancy would cause a “substantial and irreversible impairment of a major bodily function” of the woman. Kan. Stat. Ann. § 65-6703(a) (Enacted 1992; Last Amended 1998). The Kansas Attorney General has interpreted this exception to include mental health. Op. Kan. Att’y. Gen. 2000-020. [my emphasis]
It’s this mental health exception that allowed George Tiller to terminate viable pregnancies when the fetus was severely impaired. Having borne two children, I’m certain I’d experience less trauma from abortion at 30 weeks than from going to term only to watch my baby die, slowly and painfully, within hours or days. This is a perfectly reasonable application of a mental health exception. I don’t see any evidence that “feeling blue” drives women to terminate a pregnancy at that stage, nor that Tiller’s practice accommodated women who just frivolously changed their minds about being pregnant, as his enemies suggest. On the contrary, their stories are often heartbreaking (via Feministe).
Other states interpret “health” even more narrowly. Here’s how NARAL summarizes the Texas law, for instance:
Texas’ post-viability abortion restriction provides that no abortion may be performed in the third trimester on a viable fetus unless necessary to preserve the woman’s life or prevent a “substantial risk of serious impairment” to her physical or mental health or if the fetus has a severe and irreversible abnormality. Tex. Health & Safety Code Ann. §§ 170.002 (Enacted 1999), 170.001(3) (Enacted 1999; Last Amended 2001).
Another statute limits the health exception even further, stipulating that no abortion may be performed in the third trimester on a viable fetus unless necessary to preserve the woman’s life or prevent “severe, irreversible brain damage” or paralysis or if the fetus has a severe and irreversible “brain impairment.” Tex. Occ. Code § 164.052 (Enacted 1999; Last Amended 2005).
So if you’re in Texas and you’re threatened with, say, permanent damage to your heart, it doesn’t justify late-term abortion, because you wouldn’t be left paralyzed, brain damaged, or dead. In practice, a woman who is, say 30 weeks pregnant and facing serious complications would typically want to deliver a live infant. But if doing so would put her at additional jeopardy, Texas would force her to assume that risk, unless her doctor decided brain damage, paralysis, or death would ensue.
California, by contrast, sticks very close to the original Roe wording:
California’s post-viability restriction provides that an abortion may be performed on a viable fetus only if in the good faith medical judgment of the physician, the continuation of the pregnancy poses a risk to the life or health of the pregnant woman. Cal. Health & Safety Code §§ 123464 – 123468 (Enacted 2002; Last Amended 2003).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortions, such as California’s, that contain adequate exceptions to protect the life and health of the woman.
Here we see the word “health” without any additional frippery. The decision is properly left up to the physician. That seems about right to me. While I’m skeptical of vesting too much power in medicine, it’s the most appropriate authority here. Someone has to weigh the potentially irreconcilable interests of the woman against those of a viable fetus; that’s what Roe requires. Legislators can only issue blanket proclamations. A doctor, however, can respond to each woman’s specific situation. And I won’t entertain the trope of the “greedy abortionist” whose judgment is clouded by dollar signs. People like Dr. Tiller aren’t in this for the money. Virtually every other branch of medicine is more lucrative – and less likely to get you killed.