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The Legality of Third-Trimester Abortion

Alexandra had her hands full responding to other misstatements of fact that the Washington Post published about her recent article about the Democratic party’s increasing extremism on abortion, so I’ll correct the record on another point. The letter-writer claims that “no reputable doctor would abort a viable fetus, because they are forbidden to, both ethically and legally.” It is not true that doctors in the U.S. are forbidden to abort viable fetuses.

Pro-lifers often explain that abortion even late in pregnancy is effectively legal everywhere because the Supreme Court, when it ruled in Roe v. Wade that abortion had to be allowed at any stage of pregnancy to protect a mother’s health, also ruled, in the companion case of Doe v. Bolton, that health had to be construed extremely liberally. It has to include emotional health, for example, making any prohibition nearly unenforceable. On the only two occasions since Roe that I am aware of a doctor’s being successfully prosecuted in the U.S. for performing abortions too late in pregnancy, those charges were added on top of multiple other counts.

But ignore that important point. Even in the absence of Supreme Court protection for abortion late in pregnancy, it would remain legal so long as no statute prohibited it. In many jurisdictions, abortions late in pregnancy are either prohibited with health exceptions that are similar to Doe in their breadth. In seven states, there is no statutory prohibition on abortion at any stage of pregnancy. Nor is there one in Washington, D.C., where the Post is located.

(My thanks to Americans United for Life for sharing their research on state laws.)

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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