By Daniel P. Lennington
January 23, 2004

(AgapePress) - I'm an optimistic pro-lifer. To be sure, you won't find many of us around during this week, the anniversary of Roe v. Wade. And that's understandable -- there are still over a million abortions each year, and since the Supreme Court infamously "emanated" in the "penumbras" of the Constitution 31 years ago, the total number has now topped 40 million.

But pro-lifers everywhere should take comfort in the fact that we could be seeing a sea-change in the courts, prompted by state and federal legislation banning that dreaded procedure: partial-birth abortion.

Not surprisingly, Howard Dean has given a rather terse opinion on the partial-birth abortion debate: "This is an issue about nothing; it's an issue about extremism; it's an issue about appealing to people's fears." But Dr. Dean is, of course, wrong. To the contrary, any ban on partial-birth abortion that is upheld by the courts will provide a roadmap for states to develop valid bans not only for partial-birth abortions, but also for all post-viability abortions (that is, abortions after the 21st week of a pregnancy). This possibility should surely embolden the hopes of all pro-lifers during this anniversary week.

As it now stands in the courts, any abortion ban (including partial-birth abortion) will be scrutinized with a rather simple test developed by the 1992 Supreme Court decision Planned Parenthood v. Casey. In that case, the Court reaffirmed Roe and decided that before a fetus is viable, a state cannot ban abortion. Before viability, a state can only regulate abortion -- and even then, only if the regulation does not act as an "undue burden" on the women's right to an abortion.

But after the viability of the fetus, all bets are off. According to the Supreme Court, a state can regulate and even ban abortion, as long as the ban provides an exception to protect the "health" of the mother. Unfortunately, this "health" exception has truly swallowed the rule. The Supreme Court has ruled that the "health" exception must take into account not only the woman's physical health, but also her mental and emotional health. Under the current caselaw, no state can really ban abortion, because banning a woman from getting an abortion would undoubtedly interfere with her emotional health. So in practice, the idea that post-viability abortions could be banned with the proper health exception is not, well, viable.

Recently, the tide has started to turn as this broad "health" exception has received greater scrutiny. Just before Christmas, the Sixth U.S. Circuit Court of Appeals upheld the validity of an Ohio statute banning partial-birth abortions (Women's Medical Professional Corp. v. Taft). In one sense, this case is significant because it is the first major decision upholding a partial-birth abortion ban since 2000, when the Supreme Court dashed the hopes of pro-lifers everywhere and struck down Nebraska's partial-birth abortion law.

But more importantly, the Sixth Circuit's recent decision is significant because it holds that Ohio's health exception passes constitutional muster. Specifically, the Ohio partial-birth abortion ban provides a narrow exception only if the procedure is necessary "to preserve the life or health of the mother as a result of the mother's life or health being endangered by a serious risk of the substantial and irreversible impairment of a major bodily function." Nowhere in the ban does it permit partial-birth abortion to preserve the emotional health or even mental health of the woman. For once, the "health" exception has not swallowed the rule permitting post-viability abortion bans.

This is a major turning point in abortion jurisprudence and, if upheld, would be the most significant victory for the pro-life movement in 31 years. This case re-defines the health exception and only requires a health exception when there is a "serious risk of the substantial and irreversible impairment of a major bodily function." Abortions would not have to be permitted when a woman's emotional health is at risk, which is the reason for the vast majority of abortions in the United States. According to the Allen Guttmacher Institute, only about 3% of abortions are actually due to the woman's physical health. In effect, the days of (more or less) abortion-on-demand would be over and states would be free to ban all post-viability abortions.

Even so, a pessimistic pro-lifer may argue that this type of ban would have little effect on abortion in the United States. It is true that only 1.5% of all abortions occur post-viability. But even Joe Lieberman has recently acknowledged that "because of the extraordinary advances in medical science," viability has been moved up. For example, when Roe was decided 31 years ago, a child was deemed viable at around 24 weeks. Now, because of these "extraordinary advances," a child now born after 21 weeks has a chance of survival and, therefore, is "viable" in the eyes of the Supreme Court. It is for this reason that Justice Sandra Day O'Connor wrote in a 1983 Supreme Court opinion that Roe v. Wade is on a "collision course with itself."

Pro-lifers should therefore be optimistic, and hope that the Sixth Circuit's decision speeds up this "collision" with Roe that Justice O'Connor warned about. If states like Ohio are permitted to ban post-viability abortions with real and sensible "health" exceptions, that truly would be the best thing this side of overturning Roe.