Democratic Senators Wendy Davis of Fort Worth and Kirk Watson of Austin lead a rally at a protest before the start of a special session of the Legislature in Austin, Texas, July 1, 2013. (Reuters/Mike Stone)
Mea culpa: I was unfair to David Frum in my recent column on Texas, Europe and abortion. Even after I amended the online version to clarify that he is pro-choice (unlike the other two conservatives I discuss, Ross Douthat and Michael Gerson), a reader could easily assume he was anti-choice, since I do quote him in that context. I think what misled me was that I took Frum to be addressing pro-choicers in his blog post about Germany’s “abortion compromise”; what stuck out for me were the restrictions and over-simplifications. But actually, he is addressing anti-choicers, who want to ban abortion entirely. To them, he probably sounds like he is running for head of Planned Parenthood.
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Douthat claims I’m wrong about the sweep of the Texas law banning abortion after twenty weeks:
It does include exceptions related to maternal health and fetal anomalies: Its post-viability ban does not apply (and I quote) “to abortions that are necessary to avert the death or substantial and irreversible physical impairment of a major bodily function of the pregnant woman or abortions that are performed on unborn children with severe fetal abnormalities.”
Oh, come on. Obviously, there’s a life exception. It would probably be unconstitutional to ban abortion to avert the actual death of the woman. Even Justice Rehnquist, in his dissent from Roe, acknowledged as much, and even when abortion was illegal in the United States (as in the Texas law Roe challenged), there was always an exception for “therapeutic” abortion to preserve the woman’s life. We aren’t living in Ireland, after all—and even in Ireland, the horrible, completely avoidable death of Savita Halappanavar has forced passage of a law permitting abortion to save a woman’s life. The problem is how these exceptions are defined, and how they are enacted in practice.
What is a risk of death? An amicus curiae brief in Roe filed by the American College of Obstetricians and Gynecologists and other professional medical associations points out that depending on how that language is construed, and who is doing the construing, a woman suffering from a serious illness—cancer, diabetes, heart disease—may be denied an abortion although pregnancy and childbirth may worsen her condition and she may ultimately die from it, because she is not in immediate risk of death. Do we want doctors looking over their shoulders, worrying that attempting to extend their patient’s life is going to land them before a medical board—or a judge? (Violating the Texas law is, after all, a crime.)