In New York and Virginia, Democratic state governments are working to loosen restrictions on abortion late in pregnancy, far past the stages at which fetuses can survive after birth. The controversy over this expansion of abortion rights presents an opportunity for the anti-abortion movement to make the point that every abortion—no matter when it is performed—ends a human life.
Already, the Democratic Party platform states that it “will protect a woman’s right to safe and legal abortion” and enumerates no limits on that right. The party also favors removing federal limits on taxpayer funding for abortion procedures. The party’s standard-bearers are in lockstep on this point. During a presidential debate in 2016, Hillary Clinton repeatedly defended her opposition to a late-term abortion ban, claiming that it had not taken into account “the life and the health of the mother.” Her primary challenger Bernie Sanders declined to name any abortion restrictions he would support. Most of the Democrats running for the 2020 presidential nomination have already backed federal legislation that would override most state restrictions on third-trimester abortion.
Given the Democratic Party’s view of abortion rights, the legislation in both New York and Virginia expanding abortion access well into viability—all the way through the end of the third trimester—is best understood as a reaction to its palpable fear that President Donald Trump will reshape the courts to oppose modern abortion jurisprudence. At present, the Supreme Court’s decisions allow judges across the country to block abortion restrictions using nebulous standards, such as whether they impose a “substantial burden” on a woman’s right to obtain an abortion. These Democratic bills are an effort to shore up that existing framework and ensure that abortion rights remain available even late in pregnancy, no matter what happens to the makeup of federal courts.
On the 46th anniversary of Roe v. Wade, New York Governor Andrew Cuomo signed legislation permitting all abortions until 24 weeks of pregnancy. After that point, the bill asks only that the provider make a “reasonable and good-faith professional judgment” that “there is an absence of fetal viability” or that abortion is “necessary to protect the patient’s life or health.” That last term, health, is left studiously undefined, a significant omission. It also removes abortion from the state’s criminal code. Cuomo described the bill as ensuring “a woman’s right to make her own decisions about her own personal health, including the ability to access an abortion,” and said that, as a result, “women in New York will always have the fundamental right to control their own body.”
In Virginia, Democratic Delegate Kathy Tran introduced a bill—with the backing of her party and of Democratic Governor Ralph Northam—that would significantly loosen existing restrictions on abortion in the final three months of pregnancy. Currently, third-trimester abortions are permitted only if three doctors certify that a woman’s health otherwise would be “substantially or irremediably” impaired. Under Tran’s bill, only the physician who would perform the abortion must provide that certification, and the “substantially or irremediably” language is dropped, in favor of a provision that allows for an exception if the continuation of the pregnancy is determined to “impair the mental or physical health of the woman”—a provision that may appear commonsensical, but is in fact intentionally vague.
Health exceptions like these have been used to allow abortions of viable fetuses for reasons other than medical emergencies, relying on the broad definition of maternal health laid out by the Supreme Court in the 1973 Roe companion case Doe v. Bolton: “All factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the wellbeing of the patient.” Virginia’s law offers an exception for “mental or physical health,” and New York’s simply for “health.” These laws leave the decision up to the person performing the abortion.
These bills represent some of the most lenient abortion policies in the country. Tran said her bill would allow a woman to receive an abortion at term, while in labor, and she offered no explanation of what potential maternal or fetal health complications would necessitate it. Defending the bill in an interview, Northam appeared to suggest that it would permit a physician to deny medical care to a newborn infant: “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.” (Northam’s spokesperson later insisted that his remarks had been misconstrued, and that he had been describing only what might happen in the event of “a nonviable pregnancy or in the event of severe fetal abnormalities.”)
In New York, Cuomo lit up the city’s Freedom Tower in pink after signing his bill, celebrating the legal right to abort fetuses that could survive outside the womb. This fits with the general tenor of high-profile abortion-rights groups, such as the Women’s March and Planned Parenthood, that not only seek to erase limits on abortion but also portray it as routine health care and glorify it as a social good.
Democratic leaders are overplaying their hand and exposing the harsh reality of their platform. Their promotion of abortion rights after viability doesn’t line up with widely accepted medical evidence or public opinion. Research from the pro-abortion-rights Guttmacher Institute contradicts the claims that abortions after 20 weeks are most often necessary in heart-wrenching medical emergencies, finding that “most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.” Instead, these women tended to be young, poor, or both, and often delayed their abortion because they had to find money to travel to and pay for the procedure.
Some physicians argue that late in a pregnancy, killing a healthy fetus is never required to save a mother’s life; that delivery of the fetus via Cesarean section is both faster and safer. “During my time at Albany Medical Center I managed hundreds of [high-risk] cases by ‘terminating’ pregnancies to save mother’s lives,” the former abortion provider Anthony Levatino testified to Congress in 2012. “In all those hundreds of cases, the number of unborn children that I had to deliberately kill was zero.”
In cases of third-trimester abortion for “fetal viability” exceptions, meanwhile, it should be obvious that no fetal deformity or disease is cured by killing the afflicted unborn child. Consider this testimony from Omar Hamada: “I want to clear something up so that there is absolutely no doubt. I’m a Board Certified OB/GYN who has delivered over 2,500 babies. There’s not a single fetal or maternal condition that requires third trimester abortion. Not one. Delivery, yes. Abortion, no.”
To argue for abortion on the grounds of fetal abnormality amounts to defending the selective killing of human beings with disabilities or terminal illnesses; whether these abortions stem from callousness or misplaced compassion makes little difference to the life at stake.
It is unsurprising that abortions this late in pregnancy are vastly unpopular with the American public. Gallup polling from 2018 found that only 13 percent of Americans favor making third-trimester abortions “generally” legal, and only 18 percent of Democrats shared that position. Women reject late-term abortion at an even higher rate than men. A Marist survey from earlier this year found that 75 percent of Americans would limit abortion to, at most, the first three months of pregnancy, and majorities of Democrats and those who describe themselves as pro-choice agreed.
By defending more expansive abortion rights even in the face of these facts, Democrats are exposing an uncomfortable reality that they would rather not acknowledge: They embrace abortion as a woman’s right to end the life of her fetus at any stage—not the right to end her pregnancy.
At 24 weeks, and now even as early as 21 weeks, newborn infants have survived outside the womb with the help of neonatal intensive care. In Cuomo’s New York—and possibly someday soon in Northam’s Virginia—healthy, viable fetuses even after 24 weeks could easily be killed in the womb rather than delivered.
This is why the abortion-rights movement has long relied upon euphemisms to obscure the unpleasant truth about the right they advocate. Phrases like women’s rights, the right to choose, and reproductive freedom dominate their advocacy, along with dismissive jargon like clumps of cells.
But in defending bills that expand the right to abort viable fetuses, Democrats are giving away the game. Most people, even those who favor some abortion access, instinctively recoil from what they see. These late-term abortion bills do more than reveal Democratic radicalism. They draw back the veil of euphemism to expose abortion for what it is: At every stage of pregnancy, it is the taking of a human life. For the anti-abortion movement, it is a pivotal moment to insist upon that truth.