By Katie Short
The abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.”
So wrote Supreme Court Justice Harry Blackmun almost 50 years ago.
Now that Roe v. Wade is a history lesson, not a controlling precedent, it is instructive to examine how the assumptions underlying that decision were discarded, replaced by new dogmas to support an ever-expanding “right” to abortion on demand.
As the quotation above demonstrates, abortion was initially sold to the public as a medical decision—and by implication a medical necessity. No “responsible physician” would perform an abortion without a good reason to do so. As Blackmun saw it, “If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra- professional, are available.”
Within months (weeks? days?) of Roe becoming the law of the land, the role of the physician as gatekeeper for “responsible” abortion was fading into insignificance. When the Supreme Court decided Planned Parenthood v. Casey in 1992, the word “physician” was completely absent from the 35 pages of the joint opinion where three justices rationalized their affirmance of the “central holding” of Roe. This supposed “central holding,” that a woman has an unfettered right to abortion prior to viability, lived on for another three decades, until the Court’s decision in Dobbs v. Jackson Women’s Health Organization in June of this year.
As long as there is some advantage to be had from treating abortion as a “decision between a woman and her doctor,” abortion advocates have been the loudest voices asserting the fundamentally medical nature of abortion. Issues involving taxpayer funding and insurance coverage are sure bets to inspire impassioned rhetoric about the cruelty and injustice of denying “health care” to women.
On the other hand, when it comes to the abortion process itself, abortion advocates would rather leave doctors out altogether. Allowing only physicians to perform surgical abortions is unnecessary and hinders access to this oh-so-safe and common procedure, they say. Using a scapula and suction machine to carve up and extract a baby from the womb is not even surgery, they say. As for chemical abortions, which now make up more than half the abortions in the country and continue to expand, COVID-19 provided an excuse to bring abortion all the way home. No clinic visit, no exam, no receiving the deadly drugs in person. It’s tele-med and abortion by mail now.
Abortion advocates understand, with more clarity than many pro-lifers do, that the future of abortion is “self-managed,” more colloquially called do-it-yourself. A search on the internet turns up any number of sites where women can order abortion drugs from around or outside the country. The only reason to involve the health care system is to get the drugs paid for.
To give credit where credit is due, abortion advocates exercise an awesome degree of message discipline. Faster than you can say “birthing person,” a new term appeared on the scene to expand the reach of pro-death ideology: pregnancy outcome. Suddenly, pro- aborts and their favorite politicians and allies in the mainstream media are all singing this line from the choir book: “No woman should be punished for her pregnancy outcome.”
The intentional killing of an unborn child is just another morally neutral “pregnancy outcome,” like a miscarriage, stillbirth, or perinatal death.
Abortion advocates want to use the public’s sympathy for women who unintentionally lose a child, even through their own actions such as drug use, and stretch that to cover the willful destruction of the baby in the womb.
A prime example is a bill now before the California legislature. AB 2223 creates a “right” to any pregnancy outcome, and shields not just women but any person who assists a woman in achieving any pregnancy outcome.
The impetus for the proposed law was the case, recently given a high profile, of a 29-year-old woman, Adora Perez, whose baby died in utero 12-18 hours before she gave birth. The mother had tested positive for methamphetamines multiple times during the pregnancy, as she had in many of her earlier nine pregnancies, and she admitted to using meth just two days before the birth. The county prosecutor charged her with murder and voluntary manslaughter. Represented by a public defender, Perez pled guilty to manslaughter, unaware that California law does not contain the crime of manslaughter of an unborn child. The judge nonetheless sentenced her to the maximum sentence of 11 years. Four years later, Perez’s conviction was reversed, after her situation came to the attention of a reporter writing a story about another drug-addicted woman, Chelsea Becker, also accused of causing her baby’s death shortly before birth. Becker also had earlier given birth to several children who tested positive for illegal drugs. Her attorneys disputed that the toxic levels of meth the coroner detected in the baby’s system were the cause of death, and the charges were ultimately dismissed because the judge believed prosecutors had not shown that Becker knew the drugs would be lethal.
Even so, Becker’s aunt noted “If they drop these charges and let her out of jail, she’s just going to do this again. She needs mental health care, she needs drug rehabilitation‚ and she needs jail time.”
From a strictly legal perspective, the murder charges against Perez and Becker were wrong. But so was what they did to their children. Liberal forces, however, are only interested in one of those wrongs. They want to ensure that no woman in California is ever again punished, accused, or even investigated for causing the death of her unborn or newly born child, or as they put it, for a pregnancy loss.
If indeed the drugs Perez and Becker ingested did not cause the deaths of their babies, or if there is some reasonable doubt about that fact, then obviously punishing them for those deaths would be unjust.
But abortion advocates don’t want Perez, Becker or other addicted mothers whose babies are stillborn to receive a fair trial. They don’t want them to be required to receive treatment. They don’t want them even to have to answer questions regarding their babies’ deaths. The pro-aborts are using these tragic, unnecessary deaths to push their agenda a few steps further, and to erect a complete barrier to any protection of the child in the womb from intentional or unintentional harm in which the mother is involved.
AB 2223 declares an affirmative right to “make and effectuate decisions about all matters relating to . . . prenatal care, . . . postpartum care,
. . . abortion care . . . and infertility management.” The law provides that no one shall be subject to any civil or criminal penalty based on their actions or omissions with respect to any actual or potential “pregnancy outcome,” nor shall anyone be liable for assisting a pregnant woman to achieve her desired or consented-to “pregnancy outcome,” including “miscarriage, stillbirth, abortion, or perinatal death due to causes that occurred in utero.”
Just to make sure no one starts asking uncomfortable questions concerning a particular “pregnancy outcome,” the law enables “any party aggrieved” by an investigation of any “pregnancy outcome” to bring a lawsuit against those participating in the investigation. If that investigation is determined to have interfered with the someone’s rights, the participants will be liable for a minimum of $25,000 and attorney fees.
And if the coroner, in the course of his normal duties, uncovers evidence of illegal or wrongful conduct in the death of a late-term unborn child, the law provides that the results of his investigation “shall not be used to establish, bring, or support a criminal prosecution or civil cause of action seeking damages against any person” who is immune under the preceding sections.
One of the ironies of AB 2223 is that the sponsors and supporters of the bill, including the very pro-abortion attorney general of California, acknowledge that there is currently no law against a woman deliberately, recklessly, or negligently killing her own unborn child. But that is no longer enough to “protect reproductive rights.” Full protection requires immunizing from any liability those who help women “self-manage” their abortions and penalizing those who ask questions.
Freezing law enforcement out carries its own risks to women, of course. Those who batter and traffic women and girls will be able to “manage” their victims’ “reproductive choices,” and woe betide the police or protective services officer who butts in. But we’ve always known that abortion advocates were not genuinely interested in enhancing the well-being of women.
As of this writing, AB 2223 is still going through the amendment process, but those amendments are marginal and by the time you read this, the bill will likely have been passed into law. The heart of the bill is the complete de-regulation of abortion, up to birth. Giving absolute immunity to women for their actions and omissions during pregnancy creates an extra layer of protection around abortion, as does extending that immunity to anyone who assists a woman.
Pro-aborts have been successful in systematically deregulating abortion in large part because they bullied legislators into believing that women would otherwise be condemned to dangerous illegal abortions. That was a lie. California is revealing what was the agenda all along: Bring back-alley abortions into the bedroom by making every woman an abortionist who has complete immunity for any “pregnancy outcome,” including the death of a full-term infant during or after birth.
Lest you think this agenda is confined to California, think again. Lawmakers are passing a slew of bills related to AB 2223 that entice women from across the nation to come to California to evade their states’ abortion restrictions. Women will get free travel, child care, and lodging along with immunity for the “pregnancy outcome” of their choice.
As we celebrate the end of Roe v. Wade, we must recognize that we are entering a new phase in the war against abortion. Even though Normandy marked the beginning of the end of World War II, there remained much hard fighting until the final victory would be won.