By Douglas Johnson
NRLC Legislative Director
The September 2003 edition of National Right to Life News featured a detailed report on a number of recent instances in which journalists have resurrected certain long‑discredited myths about partial‑birth abortion — in particular, the claim that the method is used only or mostly in cases involving acute medical problems. This report, “Discredited Myths About Partial‑Birth Abortion — and Some Journalists Who Won’t Let Go of Them,” is also posted on the NRLC website at http://www.nrlc.org/abortion/pba/PBAmythsmemo01303
That article included a description of the complete failure of Gannett News Service to provide any authority for its claim that partial-birth abortion “is usually performed in cases when the mother’s life is threatened or the fetus is deformed.”
A few weeks after the NRL News article was published, Gannett sent its client newspapers a new article on partial‑birth abortion that was particularly rich in mythological material. It was written by Gannett Washington congressional correspondent Pamela Brogan, the same reporter who wrote the earlier article.
The new article, “Abortion Fight Looms in D.C.,” was published in the Detroit News and some other Gannett papers on or about September 28.
The first part of the story described a woman named Audrey Eisen, who said she had obtained an abortion at 16 weeks because her unborn child had a serious incurable disorder. “That option might not be available to other women facing the same dilemma under legislation Congress is expected to pass this year,“ Brogan wrote.
The woman in question, however, did not have a partial-birth abortion. Rather, as revealed inconspicuously in the very last sentence of the story, she had a “dilation and evacuation” abortion, a more common method that involves killing the unborn child by dismemberment.
In order to build her entire story around the Eisen case, Brogan adopted as valid the contention of some pro‑abortion groups that the bill is “banning all abortions performed in the second trimester.” This extravagant claim is contradicted by the plain language of the bill, as has been pointed out by its sponsors and even by some prominent lawmakers who oppose it. Yet the Gannett story contained no specific rebuttal of this misleading claim by any supporter of the bill, and the entire structure of the story implicitly relied on its validity.
Mythical Roe
The Gannett story also asserted: “The [Roe v. Wade] decision . . . said abortion decisions in the first trimester must be left to physicians. The court further said states could regulate or restrict abortion in later stages of pregnancy but must provide an exception for the health of the mother.“ [italics added for emphasis]
It is, of course, a gross misconception to suggest that the “right to abortion” that the Supreme Court has enforced under Roe v. Wade is limited in some special way to “the first trimester.“ Indeed, it is a misconception that has been repeatedly refuted by the Supreme Court itself. Moreover, such references to “the first trimester” or “the first three months” are so misleading that they were formally abandoned by many mainstream news outlets decades ago.
In Roe, and in many subsequent decisions, the Court made it clear that abortion had to be allowed for any reason whatever through “viability.” The term “viability” refers to the baby achieving sufficient lung development to survive independently of the mother with technological assistance, which is a point currently reached in the late weeks of the second trimester (often by 23 weeks, and usually by 24 weeks ‑‑ or about five‑and‑one‑half months in layman’s language).
The original Roe/Doe rulings left the door open for minor medical‑practice regulations to protect women’s health in the second trimester, but it was clear from the language of the decision that these regulations could not amount to much, and they never did. As Washington Post medical writer David Brown, M.D., wrote accurately in a story on “late‑term abortion” published in the Sept. 17, 1996, edition of that newspaper, “The landmark Supreme Court decisions Roe v. Wade and Doe v. Bolton, decided together in 1973, permit abortion on demand up until the time of fetal ‘viability.‘”
(Addressing another misconception about Roe, Dr. Brown also noted that the Court said that abortions must be permitted even after “viability” for “health” reasons, and that the Court defined “health” to include “all factors ‑‑ physical, emotional, psychological, familial and the woman’s age ‑‑ relevant to the well‑being of the patient.“ Thus, Brown concluded, “life‑threatening conditions need not exist in order for a woman to get a third‑trimester abortion.“)
Anyone still laboring under the misconception that there is something legally distinct about “the first trimester” was corrected by the Supreme Court itself in the 1992 Casey ruling. In that ruling, the Court reaffirmed Roe v. Wade on a vote of 5 to 4, and explicitly held that the Roe-based “abortion right” applied with equal force throughout the first and second trimesters until “viability.” The Court explicitly repudiated any distinction whatever between the first and second trimesters, writing, “We reject the trimester framework, which we do not consider to be part of the essential holding of Roe.”
Yet eleven years after that statement by the Supreme Court, Gannett News Service gave its readers a misleading summary of the parameters of national abortion law, employing the very “trimester framework“ that was explicitly “reject[ed]” by the Court itself in 1992.
The 5-to-4 Myth
The September Gannett story also provides another illustration of how in the hands of some journalists, “Roe v. Wade“ is really a very elastic concept that can easily be expanded or contracted depending on which version serves a particular story line ‑‑ and even used in clearly inconsistent ways within the very same story.
Brogan’s story asserted: “A Bush appointment to the Supreme Court could provide a majority that would vote to overturn the court’s 1973 decision in Roe v. Wade that legalized abortion.”
National Right to Life believes that Roe v. Wade should be overturned, the result of which would be to allow elected legislators to enact protective legislation to the degree desired by those who elect them. Therefore, it would be welcome news if in fact “only” five Supreme Court justices supported Roe.
Regrettably, however, it is not true, as any reporter who can count to nine can quickly ascertain.
Six current justices have voted to affirm Roe v. Wade: Justices Breyer, Ginsburg, Kennedy, O’Connor, Souter, and Stevens. Only three of the current justices have ever voted to overturn or substantially scale back Roe: Justices Rehnquist, Scalia, and Thomas.
In order to assert that a single appointment could overturn Roe, Gannett had to count Justice Antony Kennedy as an supporter of overturning Roe v. Wade. But in the real world, Justice Kennedy in the 1992 Casey ruling voted to reaffirm Roe and to allow abortion for any reason up to “viability.” If Kennedy had voted to overturn Roe it would have been overturned, 5 to 4 B but since he voted to support Roe it was reaffirmed, 5 to 4.
Since then, one of the four anti‑Roe justices, Byron White, was replaced by a pro‑Roe justice, Ruth Bader Ginsburg, producing a current court that favors Roe by 6 to 3.
In the 2000 Stenberg decision, Justice Kennedy voted to uphold Nebraska’s ban on the partial‑birth abortion method as allowable under Roe and Casey. In that case, Kennedy said nothing whatever to suggest that he was backing away from his 1992 reaffirmation of Roe as guaranteeing legal access to abortion for any reason up to “viability.”
Professor Jeffrey Rosen of George Washington University Law School, who identifies himself as a “pro‑choice critic of Roe,” has said, “Justice Kennedy said nothing in Stenberg to suggest that he was backing away from his position in Casey, reaffirming Roe. And of course there’s no more dramatic confirmation of this than his expansive decision in the 2003 ruling in Lawrence v. Texas, the sodomy case, where he specifically reaffirmed the broadest possible reading of Casey.”
In short, Justice Kennedy regrettably but demonstrably supports not only the mythical “first trimester“ right-to-abortion described in the Gannett article, but also a right to abortion for any reason up to “viability.” Yet, for the purpose of manufacturing a 5-to-4 split, Gannett counts Kennedy as a vote to overturn Roe, merely because he voted to uphold a ban on partial‑birth abortion.
Now, if Gannett wishes to count anyone who supports a ban on partial-birth abortion as an opponent of Roe, then perhaps in its next abortion story, Gannett will count 70% of the public as “favoring the overturn of Roe v. Wade,” since 70% said that they favored a ban on partial‑birth abortions in both the second or third trimesters in a Gallup poll earlier this year.
But don’t hold your breath waiting for that story.