For decades, abortion advocates have intensely defended the Supreme Court’s 43-year-old abortion doctrine, which legalized abortion for any reason, at any time of pregnancy, in all 50 states, even after fetal viability. Their legalistic dodge has always been that states can prohibit abortion after fetal viability unless the woman’s “health” is at stake.
That sounds significant until you learn that the unique definition of “health” the Supreme Court created in abortion law basically means few if any abortion limits can stand. It is a legal nuance that has ensnared GOP vice presidential hopeful Mike Pence, as a controversial legal case has become part of the abortion lobby’s complaints about him.
The Supreme Court defined “health” as “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient.” To make matters worse, the court also gave complete deference in decision-making to those who stand to profit from the abortion decision—the abortionists. The “health” exception is open-ended and subjective, allowing the abortion provider to decide if “health” is at risk, thus preventing the states from limiting abortion for any reason after fetal viability.
This is the Supreme Court’s abortion doctrine that has given us cases like that of Purvi Patel in Indiana. As the Indiana Court of Appeals described the matter: “32-year-old Purvi Patel managed her father’s restaurant in Mishawaka [Indiana]. A relationship with a restaurant employee resulted in her pregnancy. In June 2013, she purchased mifepristone and misoprostol online from a Hong Kong pharmacy and used those drugs to terminate the pregnancy at home. On the evening of July 13, she delivered a live baby approximately 25 to 30 weeks gestation who died shortly after birth. She drove to the restaurant, put the baby in a nearby dumpster, and drove herself to the emergency room.”
Pence Wasn’t Involved At All
In the run-up to the October vice-presidential debate, abortion advocates made the unsubstantiated charge that Pence, Indiana’s governor, was responsible for Patel’s prosecution, but Pence had nothing to do with the Patel case or the statutes by which she was prosecuted. Pence didn’t create the under-regulated abortion market that allows someone to order abortion drugs over the Internet and take them late in pregnancy. The Supreme Court did.
Prosecutors charged Patel with violating two Indiana laws: the neglect of a dependent statute, and the feticide statute. The neglect statute has existed for decades. The feticide statute was first enacted in 1979.
Pence was first elected governor in 2012 and was not involved with either of these laws. (A 2013 amendment to the feticide law, presumably signed by Pence as part of a broad reform of criminal laws, merely made a wording change.) Pence wasn’t involved in the prosecution by local prosecutors in Mishawaka, Indiana. Also, the governor is not the state’s attorney general and does not control the position of the state in an appeal.
A jury found Patel guilty of violating both statutes. But three months ago, an Indiana appeals court threw out most of the case against Patel by throwing out the feticide charge, reducing the severity of the neglect of a dependent count, and reducing her sentence.
At the trial, there was virtually no question that Patel’s baby was born alive. The question was whether Patel had caused the death, and the appeals court held that the state did not prove beyond a reasonable doubt that Patel caused the death by failing to secure medical care for the baby. Since there was sufficient evidence of neglect but not neglect leading to death, the appeals court reduced the neglect charge. The appeals court also said the feticide statute couldn’t be used against a woman for her own abortion because the Indiana legislature never intended the statute to apply to self-abortions.
Allowing Abortion Until Birth Creates These Horrors
Aside from Pence’s non-involvement and the abortion industry’s attempts to connect him to a controversial legal case, important questions of law and public policy remain. Why should the Supreme Court’s regime of under-regulated late-term abortion continue despite repeated instances of live birth after late abortion?
By legalizing abortion to (and beyond) fetal viability, the Supreme Court’s policy has encouraged numerous women to wait until abortion gets increasingly dangerous and live births are more likely, with tragic results like Patel’s. Advocates who insist that late-term abortion be unregulated do nothing to help women or children, and they ignore the extreme risks to women’s lives when they abort late in pregnancy.
This case should raise troubling questions for legislators and state officials. Should infanticide laws be swept away with the abortion laws, leaving no legal responsibility if a self-abortion late in pregnancy results in the live birth of the baby? Should state officials be blocked from enforcing infanticide laws that result in a live birth after abortion? There have been numerous documented cases of live birth after late-term abortion.
That’s the situation the Supreme Court has given us, and abortion advocates are fighting to expand abortion into infanticide and to treat the child born alive as a non-entity. Infanticide laws shouldn’t be so easily erased by abortion advocates or courts. Rather than a permission to limit abortion after fetal viability, the “health” exception is a sword to use against late-term limits, as Planned Parenthood attorneys have done to attack state limits on abortion after 20 weeks.
Patel’s case has little to do with Pence, but a lot to say about the chaos left by the Supreme Court in appointing itself the country’s National Abortion Control Board. Tragic stories like this one will continue to occur unless the legal system addresses the reality that without reasonable limits on abortion, newborns will continue to be discarded as trash and abandoned in court.