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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, April 25, 2015

"House GOP Poised to Revive 20-Week Abortion Ban"

If we are going to have debates over contraception (really?), it is far from surprising that abortion is still a major point of contention. Abortion involves so many things, including questions of gender politics and religious belief, which is after all a major reason the subject fascinates me so much (or some other word that might seem more appropriate).

The latest in abortion restrictions includes reducing the types of procedures used, back to the second trimester, and trying to ban the procedure totally earlier in the pregnancy.  The current rule constitutionality draws the line at viability. It gives someone time to decide and obtain the abortion while accepting that once the fetus can survive outside the womb that it is developed enough to be protected. The attempt to draw the at twenty weeks, though the viability line already allows a cushion that might in various cases stop abortions a few weeks earlier, is the idea that the fetus at that point feels pain. A dubious argument that at best would warrant use of some sort of anesthesia.  

A question arises regarding where Congress gets the power to do this. States would have the police power to regulate in this sort of fashion, if it did not otherwise interfere with constitutional rights. But, Congress has more limited power though we do have many cafeteria federalists out there when it comes to dividing state and federal power.  Thus, though admitting that there are moments of consistency (e.g., medicinal marijuana), the federalist argument against DOMA had not takers, even though one or more justices should have been sympathetic. The same applies to Congress regulating specific medical procedures, Justices Thomas and Scalia even noting the issue is out there.  If the justices actually wanted to seriously flag that issue in such a way that it could be substantively determined, they could do so.  The crafty liberal might fear the reach of the decision, but net probably should encourage that sort of thing to push the issue.
Congress has authority to extend protection to pain-capable unborn children under the Supreme Court's Commerce Clause precedents and under the Constitution's grants of powers to Congress under the Equal Protection, Due Process, and Enforcement Clauses of the Fourteenth Amendment.
So says a former version of the bill.  The Commerce Clause hook was used in the federal so-called "partial abortion" law.  The other hooks are more dubious. The restriction of abortion rights are being done here to protect unborn "persons," which goes beyond the limits of Roe v. Wade.  In general, it is unclear when the Fourteenth Amendment was used in this fashion to protect embryos and fetuses.  The "equal protection" of limiting abortion rights of women to protect fetuses, even if the fetuses feel pain (again, why not anesthesia? the usage of it for fetal surgery is even flagged; because "pain" is really here a stand-in for personhood) is also pretty dubious.  The law here blocks abortion too, which makes it worse than laws that limit procedures (which block a lot too, but a total ban is more blatant).

There are exceptions, as there tends to be in laws of this nature, and they deserve notice too. The major exception is when the person has an abortion to address "substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, of the pregnant woman." This in itself is a problem -- "psychological or emotional conditions" is covered by "health" and even post-viable abortions cannot be blocked when necessary for that reason. Also, "substantial and irreversible" sounds like something of an overly strict definition for a health exception. We are dealing here too with a criminal statute; along the margins, at the very least, it will be a hard choice and some will not be covered.

The other exception is rape, which got the rape caucus in trouble given even a few Republican women were worried about the phrasing.  Why should rape even be an exception really, if we are worried about pain?  Rape is not an exception for infanticide.  Two reasons -- (1) push comes to shove, people accept fetuses are not the same as newborns  (2) rape is deemed a special tragic case, not merely a voluntary choice of the woman, one in effect forgivable. This adds to the general sentiment that these sorts of laws are just hateful means to control women. 
About 1 percent of all abortions occur after 20 weeks, and women have numerous reasons for needing them: tragic fetal abnormalities, being in denial as a result of rape or other trauma, being too young to have regular periods, being unable to raise enough money in time, or having difficulties navigating restrictive state laws.
The article cited in the title provides this complete list of reasons why abortions occur at this later stage.  First, note that some people involved here are not "women" but minors.  Language is so fraught in this area.  Second, some of these reasons are aided and abetted by government policy, be it denial of funding, general delays or specifically parental involvement laws. Mix in some problems with sex education and general societal confusion about such matters. Finally, fetal abnormalities, often only picked up late, are a major issue here.  Not just rape or threat to life or health.  This is also a tricky category even post-viability, particularly if the fetus is not likely to survive or the survival is quite questionable.

The chance of a national bill passing is dubious -- there are enough complications here that even many anti-abortion legislators will not want to put in place a national bill.  Also, President Obama would likely veto it and there would not be the votes for an override.  The matter is also an issue in the states (this is a general "fact sheet" on this issue).  The focus on rape when this bill came up is not surprising, especially given some of the comments a few trolls made about "real rape" or the like.  But, the bans are problematic for many reasons as are any wrongful limits on later abortions.

The complexity should be made clear and addressed when pro-choice opponents speak out.

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