Roe v. Wade was the product of a tortured legal attempt by the United States Supreme Court to find the right to abortion within the emanations of the 14th amendment to the United States Constitution. Those emanations — or “penubmras,” to quote the 1973 Roe majority — led the justices to discover an unenumerated right of privacy, a right which purportedly undergirded a constitutional right to abortion.
Roe was a piece of judicial precedent that divided the nation because it subverted what should have been a democratic process, denying those citizens with pro-life sentiments the opportunity to have a voice in establishing what the law should be on abortion should. Even Ruth Bader Ginsburg, who believed abortion should be legal, had her issues with the reasoning that established abortion as a constitutional (as opposed to legal) right.
The recent Dobbs decision placed the debate on the legality of abortion back within the political process. State legislatures, reflecting the will of the people, are now the forum for a debate on abortion in the post-Roe years, rather than having a very debatable constitutional right imposed by judicial fiat. In that sense, the Dobbs decision was a salutary development.
Senate Bill 20, which restricts the right to an abortion following 12 weeks of gestational development, is North Carolina’s legislative response to their new prerogative after the demise of Roe v. Wade. The bill does allow abortions after 12 weeks when there are exigent circumstances involving fetal or maternal health.
The fundamental question is whether Senate Bill 20 is a judicious and reasonable use of the newfound legislative prerogative on the issue of abortion and falls within an approximate consensus of most citizens of North Carolina. This consensus is not necessarily reflected in polls conducted by partisan organizations seeking a desired outcome. Abortion is an issue fraught with heightened emotions, as well as one touching on intimate medical decisions and the definition of life itself. State legislatures must be sensitive to that reality.
Most Americans do not believe that a human being is formed at the instant of conception and therefore do not believe that any abortion after that moment is, by definition, the taking of a human life. Nor do most Americans believe that there should be an unlimited right of abortion up until the point of delivery.
A prohibition on elective abortions after 12 weeks is in line with what is permitted in many Western European countries and is more liberal than legislation proposed or enacted in other states. I might have preferred something closer to North Carolina’s existing prohibition after 20 weeks, in the interest of achieving a broader consensus, with exceptions related to the physical health of the mother and the fetus.
The CDC’s “Abortion Surveillance Data,” published in 2019, indicates that 91% of abortions are performed prior to a gestational age of 13 weeks. The same data concluded that 7.7% of abortions are performed between 14-20 weeks. Therefore, it is a small subset of abortions prohibited under Senate Bill 20 that would be allowed under more lenient legislation.
The remaining very small percentage of abortions (about 2%), which are performed after 20 weeks gestation, are those which I believe shock the conscience of most people. It is these late abortions that should not be condoned — absent emergency circumstances — by a society that sanctifies human life.
A glimpse into the gruesome nature of such abortions was provided in a recent Atlantic Magazine profile by Elaine Godfrey of Colorado abortion specialist Dr. Walter Hern, who admits to ending pregnancies “which are 22, 25, even 30 weeks along.” Dr. Hern revealed that at least half of the time, these babies and their mothers are physically healthy, and that he has done abortions purely because the developing infant was not the hoped-for sex. His method of termination is to inject the fetus with a toxic medicine to stop its heart, then remove it a couple of days later. “Sometimes the fetus comes out whole, intact. Other times Hern must remove it in parts.”
While Democrats in Raleigh have dutifully voiced the mantra that no politician should stand between a woman and her doctor, it is distressing that most (if not all) have espoused no limiting principle on the availability of abortions. Does ANY infringement on abortion constitute “an assault on women’s reproductive freedom?” (Gov. Roy Cooper’s characterization of Senate Bill 20)
If Democratic lawmakers believe that abortion should be legal eight months into a pregnancy, honesty should compel them to admit this. Such an admission would place them outside the mainstream of American opinion and would perhaps reveal more about their advocacy of unconstrained abortion than they would wish.
The North Carolina legislature had an obligation to act — either deciding, after some discussion, to leave the 20-week limit in place or setting in place a new legal standard. Whether a ban after 12 weeks is the proper and humane course can certainly be debated, but Democrats have not shown a willingness to abide any statutory limits on the procedure. That seemingly inviolable position avoids the imperative of protecting a developing human life even in the late stages of a woman’s pregnancy.