Wednesday, Feb. 6, 2019 | 2 a.m.
Under current law in Virginia, third-trimester abortions are permitted when a woman’s physician and two other doctors certify that continuing a pregnancy would result in a mother’s death, or “substantially and irremediably impair the mental or physical health of the woman.” Last week, Kathy Tran, a Democrat in Virginia’s House of Delegates, testified in favor of a bill that would end the requirement for two extra doctors to sign off on such abortions, and strike the words “substantially and irremediably” from the existing law. Similar legislation has been introduced in past years. Despite what you might have heard, at no point did Tran try to legalize infanticide.
When Tran appeared before a statehouse subcommittee, the Republican majority leader, Todd Gilbert, presented her with an outré hypothetical. Could a woman about to go into labor request an abortion if her doctor certified that she needed one for mental health reasons? Tran said that the decision would be between a woman and her doctor, but, evidently taken aback by the question, eventually allowed that it would be permitted under her bill.
Tran handled the moment poorly. She might have pointed out that legislation is not generally written with an eye to prohibiting ridiculous and unprecedented scenarios. It is inconceivable that a doctor would certify a need for an abortion while a woman is in labor; some doctors won’t even let a woman turn down a C-section if they think a baby’s health is at risk. But Tran’s impolitic answer to a ludicrous question gave abortion opponents grist for an explosion of self-righteous outrage.
Things only escalated Wednesday, when Gov. Ralph Northam was asked about the uproar during an appearance on a radio show. Northam, a pediatric neurologist by training, spoke about what actually happens when a woman goes into labor with a fetus that has severe deformities and may not be viable. The infant, he said, would be delivered and kept comfortable, and the family would decide about resuscitation.
Northam appeared to be pointing out the absurdity of Gilbert’s hypothetical, since even in grave circumstances, no one gets an abortion on the delivery table. But as a clip of the interview went viral, conservatives, including Sen. Marco Rubio, R-Fla., began accusing Northam of supporting the murder of newborns. It was the right-wing version of an online outrage mob, warping the governor’s innocuous comments into a callous declaration of evil.
Some seemed almost gleeful at the prospect of seizing the moral high ground denied them over two years of rationalizing a depraved administration. “You people keep saying to look at Trump getting elected to see how Hitler could be possible,” tweeted the conservative pundit Erick Erickson. “I’m thinking look at the sudden embrace of infanticide to see how Nazism could be possible.”
In some ways the issue of Tran’s bill is moot, since it was never going to pass in Virginia’s Republican-controlled legislature, and certainly has no chance now. But the debate over late-term abortion has been rekindled. For President Donald Trump, who tweeted about the procedure Thursday, it’s a culture war issue he can exploit. Others on the right are genuinely sickened by what they imagine liberals want to allow, even if they also appear to be enjoying the chance to once again scold the left for its purported immorality.
“Under the bill’s actual text, virtually any claim of impairment would suffice to meet the act’s requirements,” wrote National Review’s David French. “Anxiety? Depression? The conventional physical challenges of postpartum recovery? Any of those things could justify taking the life of a fully formed, completely viable, living infant.”
French appears to be worried that women will seek, and doctors will perform, late-term abortions for trivial reasons. But there’s contempt for women embedded in the idea that, absent legal prohibition, someone on the verge of giving birth might instead terminate her pregnancy to avoid the brutalities of labor.
“No matter what the law were, in real life, these things don’t happen,” said Frances Kissling, president of the Center for Health, Ethics and Social Policy and the former head of Catholics for a Free Choice. “I am not saying that there would not be one woman out of 20 million who decided at the 33rd week of pregnancy that she needed an abortion, and I would suggest that she probably does have mental health problems. However, this woman is not going to find anyone who will do this.”
Kissling is well known in the pro-choice movement for thinking deeply about the ethical gray areas surrounding abortion. As she points out, there are only about a dozen doctors in the country who perform third-trimester abortions at all, and she’s spoken to several of them, asking specific questions about patients they’ve turned down. “What I have learned is that all of them have limits and have declined to do abortions in certain circumstances for certain reasons,” she said. (The murderous abortionist Kermit Gosnell, serving a life sentence in prison, is an exception, but he was operating outside the law.)
A person who is ambivalent about abortion might wonder why, if the situations put forward by Gilbert and French are so unthinkable, pro-choice people would object to laws making them illegal. But the law is a blunt instrument for making judgments about extreme and unusual contingencies.
Having extra doctors sign off on each late abortion safeguards against (mythical) cavalier terminations, but it means that women in anguished, urgent situations need to jump through extra hoops. Abortion opponents treat mental health exemptions as easily exploited loopholes, but one instance in which they’re invoked is when a woman learns that her fetus has little chance of surviving outside the womb, and can’t face the prospect of going through labor only to watch her baby die.
This is not to say that there aren’t third-trimester abortions that many people would find morally objectionable. Abortions after 20 weeks of pregnancy are quite rare — such procedures make up just over 1 percent of all terminations, according to the most recent Centers for Disease Control and Prevention figures — and there’s little solid data about the reasons women have them. Thus much of the debate relies on anecdote.
There are many tragic stories of women forced to abort desperately wanted pregnancies because of harrowing medical emergencies, but also more complicated cases of, for example, young girls who hid their pregnancies for months, or whose abortions were delayed by restrictive laws in their states. “Our talking point is, most of these procedures are on women who discover abnormalities late in the pregnancy,” Kissling said. “We don’t know if that is true.”
Conservatives might see vindication in this admission, but it leaves us with the question of whether we want to use the law to make fine-grained moral distinctions, particularly in the absence of good information about the life-or-death choices we’re regulating. “This is so complicated, that we can set this guideline, but then we have to leave it to medicine, to the doctor and the woman, to figure this out,” Kissling argued. There’s certainly no reason to trust the people who elected Trump to make profound ethical decisions for us.
Michelle Goldberg is a columnist for The New York Times.