Steven Waldman

Steven Waldman

McCain Had a Point About the Health Exemption on Abortion

Though it was a terrible moment politically for McCain when he mocked Obama for supporting a health exception to a late term abortion ban, the Republican actually has a substantive point. The “health” exception has in the past been used to keep almost all third trimester abortions legal.
It’s often forgotten that Roe v. Wade allows states to ban abortion in the third trimester. Specifically, it could “regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
It was the companion decision to Roe called Doe v. Bolten that then gave “health” such a broad defintition that subsequent courts have, in effect, legalized most third trimester abortion:


“[M]edical judgment may be exercised in the light of all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the wellbeing of the patient. All these factors may relate to health.”

So, substantively, it was not at all absurd for McCain to suggest that supporting a late term abortion ban with a health exception, as Obama said, may not mean anything at all.
Ironically, Obama might secretly agree with McCain’s point, at least in part. Earlier in the campaign he seemed to indicate that he frowned upon the health exception being stretched to include too many abortion. “I don’t think that ‘mental distress’ qualifies as the health of the mother,” he told Relevant magazine. “I think it has to be a serious physical issue that arises in pregnancy, where there are real, significant problems to the mother carrying that child to term… ”
After pro-choice groups complained, Obama quickly clarified that he meant:


“In the past there has been some fear on the part of people who, not only people who are anti-abortion, but people who may be in the middle, that that means that if a woman just doesn’t feel good then that is an exception. That’s never been the case.
“I don’t think that is how it has been interpreted. 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.”


So it now remains an open question: what exactly does Obama mean by “defined rigorously”?
P.s. John McCain attacked Barack Obama for allowing infants to die by opposing the Born Alive bill in Illinois. Obama said that’s not true. My take on who’s right on the “born alive” issue.

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posted October 16, 2008 at 4:17 pm

I can’t wait until Obama wins so I can horse-laugh all you right-wingers who want to recrimilize abortion:)

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Iris Alantiel

posted October 17, 2008 at 10:57 am

I have a lot of trouble imagining too many situations in which a woman makes it all the way to the third trimester of pregnancy and then suddenly decides, “Oops, I don’t want to have a baby, better invoke a threat to my health so I can get an abortion”. I mean, she knew it was there beforehand! In the majority of cases, such a late-term abortion is usually going to be related to some threat either to the mother’s health or to the baby’s, probably based on some new information that deserves consideration.
I can’t help thinking that, personally, I probably wouldn’t have an abortion that far into a pregnancy based on a threat to my health. But I can’t help thinking that it’s really a choice each individual woman has to make based on her values and her beliefs: I can’t go beyond saying what’s right for me.
Also, huge and giant kudos to Obama for recognizing and stating the importance of mental health as a consideration. A lot of people see that as the real slippery slope, because the stress of taking care of a baby can be argued by its very nature to be detrimental to the mother’s mental health, just like any stress is. (Which, incidentally, is why I think earlier abortions should be an available option for women who know for a fact they cannot handle this parenting thing.)
But in the late-trimester case, we’re not talking about little irritants to mental health here, but extremely serious mental disorders – the kinds of things that can lead to all sorts of abuse of the child outside the womb. In fact, to have a child raised by a parent with that kind of mental illness, if it goes untreated, is a form of psychological child abuse. (Probably most accessibly defined as ‘providing an environment where the child’s psychology is not able to develop properly’.) I don’t know that I’d choose an abortion under those circumstances either . . . but in some cases, the abortion would be more merciful than what an abused child has to endure.

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posted October 17, 2008 at 9:45 pm

Iris Alantiel, thank you for such a thoughtful and reasonable post.

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Jack Armstrong

posted November 4, 2008 at 3:10 pm

Be sure to get out and VOTE for OBAMA today!

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posted October 1, 2010 at 1:33 pm

It was many years ago we first selected Top Restaurants in the U.S. See it.

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