Columnist Jay Fleitman: The abortion battle continues

  • The justices of the U.S. Supreme Court gather for a formal group portrait to include a new Associate Justice, top row, far right, at the Supreme Court Building in Washington. Seated from left: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice of the United States John G. Roberts, Associate Justice Ruth Bader Ginsburg and Associate Justice Samuel Alito Jr. Standing behind from left: Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett M. Kavanaugh.  AP PHOTO/J. Scott Applewhite

Published: 2/5/2019 8:35:37 AM

I must preface this column with the attestation that this author supports individual rights, free of government intervention, and politically supports the right to abortion, though not without some limitations. That does not mean that we cannot at least think about what we as a people are doing.

The struggle over the issue of abortion, which had been simmering along, has just resurfaced into a full boil. The resurgence of the Democrats in the last midterm election, which gave them control of the House of Representatives and several state legislatures, has led to an aggressive push for new legislation to protect abortion rights. The motivation for these recent efforts is in large part a response to the fear, whether justified or not, that the new conservative majority on the Supreme Court will assault or overturn Roe v. Wade.

The Virginia Legislature tried but failed to pass a bill that expanded protections for abortion on demand in that state. The New York state Legislature did pass Senate Bill S240, which expanded access to abortions on demand, and was signed into law with much ballyhoo and celebration by Gov. Cuomo. The new Democrat majority in the House of Representatives has brought out for consideration the Women’s Health Protection Act HR 1322.

The new law out of New York state expands the array of practitioners who may perform abortions at will in the first two trimesters of a pregnancy (24 weeks) and who may likewise perform third-trimester abortions in the case of  “an absence of fetal viability, or at any time when necessary to protect a patient’s life or health.” The bill repeals previous New York laws that make the performance of abortions felonious. Also repealed is a prior law that protects the life of a fetus born alive during an abortion and makes mandatory the attention by a pediatrician. Previous prohibitions against the sale of instruments or articles or recipes or drugs or medicine for prevention of conception to a minor under the age of 16 by other than a licensed pharmacist are gone.

The 1973 Supreme Court decision of Roe v. Wade, among its provisions, allows for states to put restrictions on abortions for the protection of the fetus once viability is established, which the medical science of the time identified as the third trimester or after 24 weeks gestation. It does not obligate any state to institute those restrictions. New York state by passing this law was exercising its state’s right as outlined in Roe v. Wade.

The pro-life attack on both the failed Virginia and the enacted New York legislation is that both of them allow for the termination of the pregnancy right up until the moment of delivery, leading to the death of a completely viable infant. Proponents of these bills argue that a viable fetus would only be terminated when there is a risk to the mother’s life or extreme risk to her health.

The hinge point of this clash is in the provision for the allowance of the abortion for the protection of the woman’s health, and what considerations are allowable for that decision to end a fetal life. Defenders of the bill argue that only an extreme risk to maternal health would lead to an abortion after viability, but in fact that is not true. A companion but less well-known Supreme Court decision to Roe v. Wade was handed down on the same day in 1973 as Doe v. Bolton, and the majority opinion outlined what might be considered in the protection of maternal health as “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient.” Clearly, these criteria are quite broad in offering justification to terminating a viable pregnancy.

It is the pro-choice position a woman should have full dominion over her own body in any decision that affects it. The choice to abort a pregnancy falls within that rubric. This implies that a viable fetus separately and of itself has no rights of protection to life. The viable fetus is therefore the property of the woman to be disposed of at will within the context of the above considerations.

There is an analogy here to what is considered the most infamous of Supreme Court decisions, the Dred Scott decision of 1857. In that decision, an African-American slave who sued for his freedom was denied by the court personhood and the right of citizenship, and therefore was not entitled access to the courts for redress. He was considered as property comparable to livestock, and similarly denied all rights and protections under both state and federal law.

Roe v. Wade itself seems to have left the door open on the issue of the right of a viable fetus to protection under the law. By allowing states to consider fetal protection in state legislation to limit third-trimester abortions, an individual state can establish that protection at least under state law.

The Women’s Health Protection Law HR 1322 seeks to establish a national prohibition on the effort of any state to place any limitation, hindrance or barrier to access for an abortion at will. This includes prohibiting any restriction to a third-trimester abortion of a viable fetus if “continuation of the pregnancy would pose a risk to the pregnant woman’s life or health.”

This piece of federal legislation would in effect nationalize full abortion rights. The Woman’s Health Protection Law undercuts an important aspect of Roe v. Wade. The Supreme Court made a concerted effort in this decision, outside of its general guidelines and provisions, to leave the question of the approach to abortion in the hands of the state governments. Roe v. Wade was in good part a Supreme Court decision supporting state’s rights and local control.

There is another potential challenge to Roe v. Wade, and it surprises me that this approach has not been taken. The Supreme Court depended heavily on the medical science of the time to define the period of viability of the fetus, with which a state could consider its option of protection. In 1973, that was defined as the third trimester. By current medical science, the period of fetal viability now extends well into the second trimester. If the same Supreme Court justices were now to use the same logic as they did in 1973, they might extend that protection to a much earlier time in the pregnancy.

Jay Fleitman, MD, of Northampton writes a monthly column. He can be reached at

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