With third-trimester abortion, the left has jumped the shark

According to a Gallup poll conducted last May, 81% of Americans believe that third-trimester abortions should be illegal.

14% disagree.

4% say that it depends on the circumstances (whatever that means; Caesarian delivery of a viable fetus is always safer even for the mother than abortion). Two percent are undecided. The same poll, by the way, indicates that 65% believe that abortion should be illegal in the second trimester.

Incidentally, here is an extremely useful website on which Gallup has gathered together all of its data on public opinion with regard to abortion from 1975 to the present.

Let me be very clear about this: polls are not a valid indicator of right and wrong, or even of what is wise or unwise. Despite attempts by the left to confuse this point, when a zygote is formed at the moment of conception, that zygote is human. It is not a kangaroo zygote. It is not a wombat zygote, It is a human zygote.

It is, by biological definition, alive the moment cell division happens for the first time, something which occurs so soon after conception that as a practical matter it's impossible to separate the two events.  Depending on how one views the matter, either at conception or so soon thereafter as not to make a difference, the "product of conception," as some euphemistically call it, is a human life. And at that moment, all the genetic potential the individual will ever possess is present and is in the process of being expressed. That is the very same process that only ends with death.

Here is Gallup's demographic breakdown on where we as a nation stand on the morality of abortion in general. It is not where the left (or the media) have led us to believe we stand; Gallup documents that, too. In fairness, as befits a complex issue, our attitudes are complex. Nearly two-thirds oppose overturning Roe v. Wade- yet our national consensus on when abortion ought to be legal (and there is a remarkably consistent one) runs very much contrary to it.

It would seem that the non-lawyer majority of us are not acquainted in detail with what Roe actually says, but simply think of it as representing the principle that abortion ought to be legal at all.

The question we confront when we discuss abortion is whether it is ever morally permissible to terminate an innocent human life, and if so, when. The pro-life side has generally been not only willing to acknowledge that fact but has based its entire argument on it. The pro-choice side at its best has replied- again, accurately- that the real question is at what point a human life becomes meaningful and morally entitled to the respect with which decent people agree that human life in principle deserves. In Roe v. Wade,  this  concern was acknowledged (if not necessarily consistently consulted) in a decision which follows the vague outlines of what Gallup's annual polls on abortion attitudes have made clear are our national consensus: that abortion should be broadly legal in the first trimester, legal only under certain circumstances in the second, and illegal in the third. The Supreme Court spoke of the issue as one of personhood. When does a living human being become a person?

Since we as a society lack a consensus on that specific question, the Court ruled that, in general, abortion should be legal in the first trimester,  more difficult in the second, and at least pretty hard to get in the third. A woman's "right to privacy," the Court decreed, outweighed the state's interest in protecting the life of the fetus, but by less and less right up to at least the point of viability because as the pregnancy progressed more and more of us would be inclined to accord the fetus the right of personhood, or at least of a status so closely approaching it that it, too, should be considered as having constitutional rights, or at least an ethical right to live matching the mother's right to "privacy."

Now, I disagree with that decision. Whether they realize it or not, so do most Americans. But in general, no matter how wrong-headed one might consider Roe, it represents a thoughtful and nuanced approach to a complex question. Except for one thing: the Court insisted on exceptions in the case of a threat to the life or health of the mother:
For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
Though the language seems to me quite plain, there are somehow disagreements as to whether Roe requires such exceptions in the case of third-trimester abortions, at least in part because the question doesn't arise. The consensus of obstetricians seems to be that pretty much across the board early delivery is always safer even for the mother than a third-term abortion. Moreover, one would be hard-pressed to find a coherent ethical difference between aborting a viable fetus (especially one at the point of birth) and outright infanticide, the fact which underlies the overwhelming opposition of the American people to abortion in the third trimester. Moreover, it should be noted (though amazingly few pro-choice folks seem aware of this fact) that the standard pro-life position regards abortion as acceptable when it is needed to save the life of the mother.

But health is a different matter. The Courts have consistently defined the term so broadly as to include mental health and left it up to physicians to decide in what cases such an exception might apply. In fairness, the Gallup data suggests that roughly three-quarters of Americans agree that mental health should be included among the exceptions justifying third-trimester abortions (though I personally find this problematic, that's what they say).

The problem is that mild depression or even anxiety or undue stress are sometimes resorted to as a loophole with which a state's abortion law can be circumvented on the ground of mental health. I doubt that these would be included among acceptable reasons by most of those who in general think that third- trimester abortion should be legal to preserve a woman's mental health, especially since it's hard to see how an early Caesarian delivery would not be less so.

In practice, the exceptions to save the life of the mother (to which almost nobody objects, in principle, but which also can be lied about) and to preserve her "health" is a loophole which in effect allow any unscrupulous or politically-motivated physician to authorize abortions which the law would otherwise prohibit. By removing the previous 24-week statutory limit in principle on abortion- effectively the lower limit at which a fetus might reasonably be considered viable- New York State's new RHA makes it even easier for "progressive" doctors to grant legal legitimacy to an abortion at any point right up until the moment of birth.

And remember, medical facts don't matter here. The consensus of medical opinion doesn't matter here. All that is required is that a doctor certifies that in his or her professional judgment, an abortion is necessary in order to preserve the life or (even mental) health of the mother. And "health" can be defined literally any way the doctor likes.

It's true that, in theory, one could sue a woman and doctor seeking a third-trimester abortion and produce evidence that it is not medically necessary, including the testimony of other doctors. It wouldn't even be hard to do- if only more fetuses had attorneys on retainer.

This is a big deal- assuming, of course, that one considers infanticide a big deal, there being no imaginable ethical difference between killing a viable fetus and killing a baby who has already been born. One may reasonably be suspicious of slippery-slide arguments, and there is indeed a slippery-slide aspect to this issue: if a viable fetus can be legally killed, why not a newborn? And if a newborn, why not a toddler? And if a toddler, why not a child? A teenager? An adult?

Why not an elderly person, whose best years are behind her, who consumes medical and other resources in order to stay alive which some might see as better saved for someone who is young and has a future? Why not the disabled? Why not LGBTQ folks? Why not the poor? Unpopular minorities? Political opponents of an administration? Why not any form of "life unworthy of life?"

Yes, that a "slippery slide" argument, and it's reasonable to look upon those with suspicion. We are not talking here about death camps for Muslims or blacks or Hispanics or euthanizing Grandma. We are "just" talking about something which by any rational standard is the moral equivalent of infanticide. It is not merely the "slippery slide" with which we have to deal here. The RHA crosses an ethical and legal line, and it's a significant line. We have given up all pretense of personhood being the issue. We have gone from legalizing the killing of a being who we can tell ourselves is only a potential person to killing one we can't reasonably deny is a person.

We have said that there are not merely members of our species, but people, whose life it is acceptable to take without just cause. And remember- there is never a situation when, in fact, a third-trimester abortion is necessary for the sake of the life or health of the mother.

One can also argue that the RHA doesn't really do anything new. Pro-choice folks like to fudge this fact, and even laugh at those who point out that Roe arguably does exactly what the RHA does, requiring that legal abortions be made available whenever it is medically certified (whether medically true or not) that an abortion is necessary to preserve the life and health of the mother. And yes, there is a difference of opinion about just how Roe's requirement that abortions be permitted whenever they are certified is applicable to a situation in which, by definition, they are not.

But if that's the case, why should the RHA have been passed at all in its present form?
If nothing else, it removes all ambiguity. Until you exit the birth canal, at least in New York State (and maybe, soon, in Virginia), you're fair game.

And the ethical conscience of the nation cries, "Foul!" The RHA is an end-run around that conscience. There is, after all, a reason why 81% of Americans oppose third-trimester abortions. This is a bridge too far. This is "jumping the shark." This is something so extreme that those radical Democrats who embrace it are going to pay a price for it, and so will the entire Democratic party- maybe not in "progressive" New York State, but certainly in the nation.

This is kind of an acid test not only of our society but of just how nutty the Democrats are willing to be (after two years of basically the entire Republican party buying into trade wars, tariffs, border walls, and an erratic, unstable president whose campaign slogan is shouted by thugs beating up gay people because of their sexuality, we already know that the Republicans don't bat an eye at the alt-right becoming the face of their party). Laws such as the so-called "Reproductive Health Act" in New York and the similar abomination proposed in Virginia are very much a loser for the Democrats. Just how far are they willing to go in their ongoing break with the entire Western legal and ethical traditions, and with the consciences of four out of every five Americans, including nearly two-thirds of their own rank-and-file?

Once more, we are shown that neither of our major American political parties is in the American mainstream. The polarization of our society has advanced so far that the two political parties whose best interests are served by appealing to the widest possible coalition of voters are instead toeing the line of the most extreme and exclusionary- and morally repulsive- of its elements.


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