The year 2003 ended with a reporter allegedly misrepresenting a candidate’s stance on Roe v. Wade, and then both the candidate and the reporter compounding the alleged error by misrepresenting what Roe actually said. The former may have been the result of an error, or a misinterpretation of what the candidate meant, or a deliberate attempt to create a story where none existed. But the latter error by both the candidate and the reporter was sheer ineptitude. And both have gotten away with it, until now.

The candidate was Senator Joseph Lieberman, the newspaper was the Manchester Union Leader, and the reporter was John DiStaso who writes a column ‘Granite Status.’ DiStaso reported in his Dec. 26, 2003 column, entitled (as reported on the Union Leader website) ‘Roe v. Wade should be updated, says Lieberman,’ that ‘Joe Lieberman said this week that ‘extraordinary advances in medical science’ have forced a re-examination of the 30-year-old Roe V. Wade ruling’s trimester-based approach to the abortion issue.’

Lieberman issued a statement the same day which the Union Leader duly reported on Dec 27:

‘Lieberman said, ‘This morning, there was a misleading headline in the Manchester Union Leader regarding my views on a woman’s right to choose that suggested that I thought the Roe v. Wade decision should be either ‘looked at again’ or ‘re-examined.’

‘I did not say nor do I believe that Roe should be looked at again, revisited or reconsidered,’ Lieberman said yesterday.’

What was the fuss about? Science and what it means for the future of legal abortion.

Lieberman said in his Dec 26 statement:

‘I said in that interview what I have said for years – namely that medical science has advanced the time of fetal viability to approximately 24 weeks. In response, the courts have determined, as the article pointed out, that the viability standard has replaced the original trimester formulation of Roe.’

If a normal pregnancy is 39 weeks in length, then a trimester framework would divide the pregnancy into a first trimester until week 13, a second until week 26 and the third until delivery at week 39. Lieberman noted that medical science has advanced viability so that it ‘is now in some cases 24 or 25 weeks and in a few cases, a little bit less.’

Lieberman is correct to note that viability is advanced in ‘some cases’ to 24 weeks. Some fetuses are not viable at 28 weeks or 32 weeks or more. So what does this have to do with the legality of abortion? Some scientists predict that soon we will have an artificial womb that can sustain a fetus from the beginning of a pregnancy until ‘birth.’ Should viability outside the mother’s womb be determinative of her ability to terminate a pregnancy?

This is the legal legacy that Roe gave us when it tried to balance the rights of the mother against those of the fetus and drew a line at the end of the second trimester. Before then the mother would have the right to abortion, but after that time the state could prohibit abortion except when abortion was necessary to preserve the mother’s life or health. What the framework that declares the rights of the fetus paramount at viability or at the third trimester ignores is the reality of what might be happening to the mother at that point and what might be happening to the fetus.

A woman 24 weeks pregnant will know she is pregnant. Except in rare cases we are not dealing with ignorance of pregnancy here. As one physician who opposes abortions after 24 weeks said, ‘She has plenty of time until then to s___ or get off the pot.’

Well, does she? Given the fact that only about a dozen states will pay for abortions for poor women under their Medicaid program, poor women in three-quarters of the states are left with trying to come up with the several hundred dollars necessary to pay for an abortion, an amount that rises as the pregnancy goes on. Abortions at 24 weeks can cost two or three times or more than abortions in the first trimester.

Pregnancies are dangerous to a woman’s health, and complications can arise as a pregnancy progresses. Who is to say whether the complications will meet some legal test that a committee of physicians will approve of to terminate a pregnancy after 24 weeks. And what of the health of the fetus? Roe does not protect a woman seeking to terminate a pregnancy when the fetus has a serious defect or disease. Shouldn’t the mother be entitled to make this decision?

And what if life’s contingencies and curve balls? Being pregnant is dangerous for a woman socially and economically. The father of the child may leave, not want the child, may beat and abuse the mother. The mother may lose her job. Life isn’t fair. Why does the law permit a mother to react to life’s unfairness before 24 weeks of pregnancy but not after? Just because her child might be able to survive outside the womb? She is the one who has to raise that child, not the state. She is the one faced with a lifetime of mothering and providing. She will not make any decision lightly, especially after she has been pregnant for 24 weeks. On the contrary, she will be loath to end that pregnancy simply because she has invested so much in it already. It seems to me we can rely on mothers to make the right choice for themselves.

This is the weakness of Roe, and all the cases following it. Roe says that after 24 weeks or viability or whatever science says is viability that we no longer trust mothers.

And this is the weakness of Joe Lieberman and the other pro-choice candidates: they don’t challenge the restrictions that Roe and subsequent cases have put on abortion rights.

The Casey decision in 1992 revised the Roe framework almost entirely so that virtually nothing is left of Roe. Roe said three things: that the right to terminate a pregnancy was a fundamental right; that any law restricting it would be reviewed using the highest level of judicial scrutiny, i.e. strict scrutiny; and that there would be a trimester framework to evaluate the legality of state laws. The Casey decision said that the right to terminate a pregnancy was a liberty interest not a fundamental right (a lesser right in the constitutional scheme of things); that any law restricting abortion would be reviewed using an undue burden standard (a lesser standard than strict scrutiny – any law would be permitted unless it imposed an undue burden on the woman seeking an abortion); and that there would be a dividing line at viability not at the trimesters to evaluate the legality of state laws. The overall result of Casey was to permit virtually any state regulation or restriction on abortion, short of banning it or making it really difficult to obtain.

Senator Lieberman and the Union Leader misstated what Roe and Casey mean. The reporter said in his Dec. 26 column: ‘The ruling (Roe) said the state may impose regulations on, and may even ban, second- or third-trimester abortions except when the life or health of the mother is at stake.’ (Emphasis added). Not so. Roe said that the state can impose regulations during the second trimester that are related to maternal health and can only ban abortion during the third trimester, not the second, and then only if it allows exceptions for the mother’s health and life.

Lieberman joined in this error in his Dec 26 statement: ‘And it is critical to note that while these miraculous medical advances have shortened the time to fetal viability, they have also lengthened the time of a woman’s clearly protected right to choose in Roe from the first trimester to 24 weeks,’ he said. (Emphasis added)

A woman’s clearly protected right to choose under Roe was in the first and second trimesters. Roe did not permit the state to ban abortion in the second trimester, only to regulate it for maternal health, by for instance requiring certain equipment to be present and training of physicians.

Let’s go to the video tape. Here is Justice Harry Blackmun in Roe:

‘To summarize and to repeat:

1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life [410 U.S. 113, 165] may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’

And here is Justice Sandra Day O’Connor in Casey:

‘We give this summary:

(a) To protect the central right recognized by Roe v. Wade while at the same time accommodating the State’s profound interest in potential life, we will employ the undue burden analysis as explained in this opinion. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.

(b) We reject the rigid trimester framework of Roe v. Wade. To promote the State’s profound interest in potential life, throughout pregnancy, the State may take measures to ensure that the woman’s choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right.

(c) As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right. [505 U.S. 833, 879]

(d) Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.

(e) We also reaffirm Roe’s holding that, 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 it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’

The issue then is Casey not Roe. Casey restricted a woman’s right to access abortion more than Roe did. Casey is wrong from many points of view, but mainly because it failed to answer the question, ‘whose baby is it?’ Is it the mother’s or the state’s? Who is having the baby, who is going to raise it, provide for it, nurture it? How will the baby affect the woman’s other children and their viability? What about the woman’s right to life? Science is not irrelevant to these questions, but the potential viability of the fetus is.