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Recent events have brought the issue of late-term abortion back into the news, and into the realm of presidential politics. On Tuesday, during his 2020 State of the Union address, President Trump called on members of Congress to “pass legislation finally banning the late-term abortion of babies.”

The next day, on the talk show The View, Democratic presidential candidate Pete Buttigieg was asked to elaborate on his support for late-term abortion. Co-host Meghan McCain said, “I think the interpretation from pro-life people like me was that you meant a baby actually being born . . . I just wanted you to clarify, because I found that statement to be pretty radical.” In response Buttigieg replied,

I’m just pointing to the fact that different people will interpret their own moral lights, and for that matter interpret Scripture, differently. But we live in a country where it is extremely important that no one person should have to be subject to some other person’s interpretation of their own religion. . . .

What are late-term abortions?

The definition of what is considered “late-term” is controversial within the abortion debate. Pro-lifers generally use the term to refer to any time after the fetal viability, when the child could possibly survive outside the womb. This is usually around 21 weeks, or the last half of the second trimester of pregnancy.

In contrast, abortion supporters usually say that late-term only after 27 weeks, when the chance of viability is more than 90 percent. Some more radical claims, such as by The New York Times health reporter Pam Belluck, contend that the term should only be applied to “pregnancies that extend past a woman’s due date, meaning about 41 or 42 weeks.”

Isn’t late-term abortion illegal? Wasn’t a ban on the procedure already put in place years ago?

In 2003, Congress passed and President Bush signed the Partial-Birth Abortion Ban Act. The act defined a partial-birth abortion as any abortion in which the death of the fetus occurs when “the entire fetal head . . . or . . . any part of the fetal trunk past the navel is outside the body of the mother.” That law was challenged in the 2007 case of Gonzales v. CarhartThe Supreme Court ruled that the particular procedure could be banned because it did not interfere with a woman’s right to an abortion.

While there remains a ban on that partial-birth abortion procedure, it does not affect the timing of an abortion, nor does it override or nullify the health exception that was established in the Supreme Court’s ruling in Doe v. Bolton (1973)

What is the “health exception”?

The Supreme Court’s opinion in Doe v. Bolton stated that a woman may obtain an abortion even after viability 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 pro-abortion Guttmacher Institute notes, in RoeDoe, 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.

Aren’t late-term abortions rare in the United States?

According to the Centers for Disease Control, approximately 1.3 percent of abortions in 2015 occurred after 21 week’s gestation (that was the last year for which complete statistics are available). Based on this rate, and a reported 638,169 abortions that year, we can estimate that the number of late-term abortions was 8,296.

If late-term abortions were separated from earlier abortions, they would be the leading cause of death for children younger than 1 year old.

Aren’t most late-term abortions conducted to save the life of the mother?

No. In fact, the question of whether abortion is ever necessary after viability to save the pregnant woman’s life is a point of debate within the medical community. Yet even if it is sometimes necessary, saving the life of the mother is rarely even mentioned as the reason late-term abortions are conducted. As 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.”

According to a 2013 study, most women seeking a later abortion fit at least one of five profiles: they were raising children alone, were depressed or using illicit substances, were in conflict with a male partner or experiencing domestic violence, had trouble deciding and then had access problems, or were young and had never given birth before.

One abortionist said in an interview that some women have a late-term abortion because they were unaware they were pregnant until after the fetus became viable:

They have no idea they’re in their 24th week. So they make an appointment for an abortion, and it takes a few weeks, and they have their ultrasound and find out that they’re at 27 weeks, which is too far for an abortion anywhere. So then what happens? They either give up or have a baby, or they go on the Internet and they find us.

Additionally, because the “health” standard includes psychological factors, almost any reason for a late-term abortion can be justified by an abortionist. As Phill Kline, the former attorney general of Kansas, has pointed out, the late-term abortionist George Tiller frequently used the health exception to justify post-viability abortions.

Tiller’s files included such reasons for late-term abortions as a desire to go to prom and another to avoid hiring a babysitter while attending rock concerts. To each of these “conditions,” Tiller assigned a mental health diagnosis of “adjustment disorder,” “anxiety disorder,” or “single episodic severe depression.” Tiller considered all of these mental conditions to be “permanent” and the only “treatment” to be an abortion.