Such legislation would invalidate state laws that restrict third-trimester abortion.
Kathy Tran, a Democrat in the Virginia House of Delegates, shocked the consciences of many Americans when she acknowledged on Tuesday that a bill she introduced would allow abortion “all the way up to 40 weeks” of pregnancy if a single doctor asserted that the abortion was being performed to protect the mother’s health, including her mental health. As Tran acknowledged in an exchange with a Republican colleague, her bill would legalize abortion even when a mother had physical signs she was about to give birth:
Gilbert: So where it’s obvious that a woman is about to give birth, she has physical signs that she’s about to give birth, would that still be a point at which she could still request an abortion if she was so certified? [pause] She’s dilating?
Tran: Mr. Chairman, you know, that would be a decision that the doctor, the physician, and the woman would make.
Gilbert: I understand that. I’m asking if your bill allows that.
Tran: My bill would allow that, yes.
Democrats running for president in 2020 haven’t commented on the Virginia abortion bill, but most of them have effectively already told us where they stand, because they have cosponsored the Women’s Health Protection Act, federal legislation that would override state restrictions on third-trimester abortions.
Democratic senators who cosponsored the bill during the last Congress include 2020 presidential contenders Kamala Harris, Kirsten Gillibrand, and Elizabeth Warren. Potential 2020 Democratic candidates Bernie Sanders, Amy Klobuchar, Cory Booker, and Sherrod Brown also cosponsored the bill. (Hawaii congresswoman Tulsi Gabbard, another Democrat running for president, did not cosponsor the House version of the bill in 2017, but she did oppose a federal bill banning abortion after the fifth month of pregnancy.)
According to the text of the Women’s Health Protection Act, the legislation would invalidate all state laws that prohibit “abortion after fetal viability when, in the good-faith medical judgment of the treating physician, continuation of the pregnancy would pose a risk to the pregnant woman’s life or health.”
Democratic senator Richard Blumenthal of Connecticut, the bill’s chief sponsor, told me when he first introduced the bill in 2013 that the legislation’s requirement that all states must allow third-trimester abortions when maternal health was at risk did not distinguish between physical and mental health.
The Weekly Standard: The bill says that there cannot be bans post-viability if they don’t have an exception for the life or health [of the mother]. Does health include psychological and emotional health, as Doe v. Bolton did, Roe‘s companion case —
Senator Richard Blumenthal: It would include —
TWS: What is the definition of health. Physical? Or is it also emotional and psychological?
Blumenthal: These decisions will be made by doctors and patients, doctors and women. And they can make it for medically necessary reasons.
TWS: And you can’t say whether it’s physical or also psychological?
Blumenthal: It doesn’t distinguish.
The Women’s Health Protection Act would also wipe away informed-consent laws and laws requiring waiting periods for abortions. “The basic principle is that there can be no restriction that is not also imposed on a medically comparable procedure. If they single out abortion or reproductive rights, it’s going to fall foul,” Blumenthal said in 2013.
That same year, Pennsylvania abortionist Kermit Gosnell was convicted on three counts of murder for killing infants after they had been born. Gosnell was also convicted under Pennsylvania’s Abortion Control Act for killing 21 infants in utero later than 24 weeks into pregnancy.
If the Women’s Health Protection Act were enacted, Pennsylvania’s 24-week limit on abortion would be invalidated because it does not include a mental-health exception and allows abortions to be performed later than 24 weeks only when the mother’s life is endangered or to prevent the “substantial and irreversible impairment of a major bodily function.”
As Douglas Johnson of the National Right to Life Committee said at the time, the Women’s Health Protection Act “would invalidate nearly every provision of the Pennsylvania Abortion Control Act, including the prohibition on performing abortion after 24 weeks except in acute medical circumstances, which was used to prosecute Gosnell. Abortion until birth would be explicitly protected, as long as a single physician asserts that it would protect ‘health,’ including emotional health.”
Although the overwhelming majority of Democrats in Congress, including those running for president in 2020, support legislation overriding state restrictions on late-term abortion, the overwhelming majority of American voters do not: A recent Gallup poll found that only 13 percent of Americans think that abortion should be generally legal in the third trimester.