A video clip of a Virginia lawmaker saying she would allow abortions up until the moment of birth went viral yesterday. In the video Del. Kathy Tran (D-Fairfax) is asked if her proposed legislation, House Bill No. 2491, would let a woman ask for a late-term abortion for mental health reasons.

“Where it’s obvious that a woman is about to give birth . . . she has physical signs that she is about to give birth would that still be a point at which she could request an abortion if she was so certified? If she’s dilating?” asked House Majority Leader Todd Gilbert (R-Shenandoah).

“Mr. Chairman, that would be a decision that the doctor, the physician, and the woman would make at that point,” Tran responded.

“I understand that,” Gilbert said. “I’m asking if your bill allows that.”

“My bill would allow that, yes,” answered Tran.

Many people are rightly appalled by the callous disregard for the life of a soon-to-be born infant. But we should not be shocked. Allowing women to have an abortion for mental-health reasons anytime in the third trimester (28 weeks until birth) is already the law of the land in the United States.

Here are four facts you should know about third-trimester abortions in America.

#1 — Third-trimester abortions are already protected by federal law.

On January 22, 1973, the U.S. Supreme Court issued rulings in the cases of Roe v. Wade and Doe v. Bolton. Roe has become more famous, but Doe is equally significant. As Justice Harry Blackmun said at the time of the rulings, both Roe and Doe “are to be read together.”

The Court’s opinion in Doe stated that a woman may obtain an abortion even after viability (i.e., the period when the fetus could potentially survive outside the womb) if necessary to protect her health. The Court defined “health” as follows:

Whether, in the words of the Georgia statute, “an abortion is necessary” is a professional judgment that the Georgia physician will be called upon to make routinely. We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient. All these factors may relate to health.

In 1992, the Supreme Court reaffirmed Roe in the case of Planned Parenthood of Southern Pennsylvania v. CaseyThe ruling replaced the trimester formula in Roe with an emphasis on viability:

Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health.

By claiming that the “essential holding of Roe v. Wade should be retained and once again reaffirmed,” the Court was claiming that the same standard of “health” applied as before.

As the Guttmacher Institute notes, in Roe, Doe, and Casey the Court has held that:

  • even after fetal viability, states may not prohibit abortions “necessary to preserve the life or health” of the woman;
  • “health” in this context includes physical and mental health;
  • only the physician, in the course of evaluating the specific circumstances of an individual case, can define what constitutes “health” and when a fetus is viable; and
  • states may not require additional physicians to confirm the attending physician’s judgment that the woman’s life or health is at risk in cases of medical emergency.

In other words, if a physician determines that the child is “non-viable” and/or the abortion is necessary for the physical or mental health of the mother, a woman can have an abortion from the moment of conception until the child’s natural birth.

The standard is so broad that the infamous abortionist George Tiller was able to assign a mental-health diagnosis to justify late-term abortions for spurious reasons, including for a woman who wanted to “go to prom” and another who wanted to “avoid hiring a babysitter while attending rock concerts.” Even the pro-abortion Guttmacher Institute admits that “data suggest that most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.”

#2 — State laws restricting third trimester abortions are unconstitutional under the precedent of Doe.

Much of the confusion about this issue lies in the misunderstanding of how Casey affects abortion, and the fact that numerous states have laws that ban or restrict abortions in the third trimester. Because these statutes remain on the books or have not yet been contested in federal court, they may give the public the impression that they are allowed by federal law.

But because federal law trumps state law, no restrictions can be enacted that do not also allow the doctor to determine if abortion is necessary for the “health” of the mother. This is why abortion-rights supporters frequently say the decision to have an abortion must be left up to the “woman and her physician.” As long as a woman can find a doctor who says the abortion is necessary for her physical or mental health, her access to abortion—anytime from conception to birth—is currently protected by federal law.

#3 — The Democratic Party officially supports keeping third-trimester abortions legal.

Del. Tran’s position is not an outlier within her party. The official position of the Democratic Party is that no restrictions are allowed for any reason at any time during the pregnancy—including in the third trimester or anytime prior to natural birth.

As the 2016 Democratic Party platform states, “We will continue to oppose—and seek to overturn—federal and state laws and policies that impede a woman’s access to abortion, including by repealing the Hyde Amendment.”

#4 — Overturning Roe and Doe won’t end all third-trimester abortions.

As I noted in an article last week, Democratic legislators in places like New York and Virginia are moving to codify abortion rights in state law to prepare for the day when Roe and Doe are overturned. When the Supreme Court throws the abortion issue back to the individual states, third-trimester abortions will still be protected in states that reiterate Doe’s standards for “viability” or “health.”

Opposing these measures won’t affect many third trimester abortions today, but they can prevent this gross injustice from continuing in the post-Roe future.


Addendum: During a radio interview, Virginia Democratic Gov. Ralph Northam was asked if he supported Tran’s abortion legislation. He replied:

This is why decisions such as this should be made by providers, physicians, and the mothers and fathers that are involved. When we talk about third-trimester abortions, these are done with the consent of obviously the mother, with the consent of the physician—more than one physician, by the way—and it’s done in cases where there may be severe deformities. There may be a fetus that’s non-viable.

So in the particular example, if a mother is in labor, I can tell you exactly what would happen. The infant would be delivered. The infant would be kept comfortable. The infant would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physicians and the mother. So I think this was blown out of proportion. But again, we want the government not to be involved in these types of decisions because we want the decisions to be made by mothers and their providers. And this is why legislators, most of whom are men, shouldn’t be telling a woman what she should and should not be doing with her body.

The most generous interpretation of the Gov. Northam’s comments are that he was confusing and conflating a third-trimester abortion with a child that has been delivered and is already dying. In the second case, the choice whether extraordinary measures should be taken in an attempt to keep the child alive is usually left to the parents and attending physicians.

However, if Gov. Notham, a former pediatrician, is saying that if a child comes out of the womb alive after a botched abortion and should be left to die, then he is advocating infanticide. In that case, the response by TGC Council member Russell Moore is appropriate:

The governor’s statement is morally reprehensible and ghoulish to the core. How seared must a conscience be for a leader to discuss leaving born-alive children to die with the cavalier indifference as if he were discussing the relative merits of a water treatment plant in Danville or Culpeper? Human beings are not animals to be farmed, and not machines to be deprogrammed when they are not considered state-of-the-art. Children have intrinsic value that is defined not by their power, nor by the whim of doctors, but by the image of God each one of them bears.