To End the Gaping Political Divide over Roe, Revisit Doe

President Obama called during his campaign for finding common ground on abortion, but such calls may strike many as hopelessly Pollyanna, especially now, with the abortion divide in American politics emerging with unrestrained vehemence in the congressional debate over comprehensive health care reform.

Even so, might some common ground yet be found?

A possible answer lies in encouraging the Supreme Court to reconsider Doe v. Bolton, a decision that accompanied Roe v. Wade.  In Doe, the justices defined what they meant in Roe when they insisted that state regulation of abortion could not override the “health of the mother.”

Polls reveal that most Americans feel some moral conflict about abortion.  They support Roe and a woman’s right to choose, but they also support a ban on partial-birth abortion and they see late-term abortion, except for urgent medical reasons for the mother, as morally ambiguous.

The issue is primarily symbolic -- there are very few such non-medically required late-term abortions performed. Yet the idea that they might be conducted is incendiary to social conservatives. A compromise could appeal to moderates on both sides if it left Roe’s basic structure untouched, but revisited the morally troubling and constitutionally thorny issue of late-term non-medical abortions.

Roe attempted to address this question by granting the states the power to allow or to ban late-term abortions as they saw fit—with the proviso that, to be constitutionally protective of individual rights, state bans must allow an exception for the woman’s health. The justices said nothing in Roe about what they meant by health, taking it as obvious, something a physician would determine. But the Doe decision clarified health, establishing the parameters of the states’ ability to regulate late-term abortion.

A vehement conservative complaint is that Doe so broadly interpreted health that any “ban” on late-term abortion that includes a health exception is, in effect, abortion-on-demand. So it is worth asking: are conservatives correct that Doe’s analysis is so fundamentally flawed that it undermines Roe’s attempted compromise on late-term abortion?

In Doe, the high court held, first, that “health” must be construed “to bear upon psychological as well as physical well-being”—thus ensuring that mental health would be treated equally with physical health in the health exclusion; and second, that mental health must be broadly interpreted “in the light of all factors -- physical, emotional, psychological, familial, and the woman's age--relevant to the well-being of the patient.  All these factors may relate to health.”

Doe thus enthrones well-being, not health, as the criterion for deciding medical necessity of abortion.  This definition is plainly incorrect as a description of what people – or physicians, for that matter – generally mean by “health” or "medical necessity."  Tragedy, loss, interpersonal conflict, and disappointment of fervent desires or plans – including family planning – are potent causes of lack of psychological well-being, yet need not imply ill health.  Poverty, lack of social support, a failing economy, and discrimination diminish well-being without implying medical disorder.  It is indeed arguable, as an ad sponsored by the National Conference of Catholic Bishops declared, that Doe’s interpretation of Roe’s health exception includes "just about anything."

So, Doe in effect reversed the states’ right to regulate late-term abortion conferred in Roe.  In defining health as whatever promotes well-being, the justices undermined the moral and constitutional compromise they themselves had forged.

In the third presidential debate of 2008, candidate Obama sought common ground by insisting:  “I am completely supportive of a ban on late-term abortions, partial-birth or otherwise, as long as there's an exception for the mother's health and life.”  Such a ban has been supported by other prominent pro-choice Democrats, including Tom Daschle, who as Senate majority leader proposed such a ban back in the 1990s, and by President Clinton.  And the reaction from the right was promising; pro-life conservative William Bennett said of the Daschle proposal that “for the first time the abortion-rights side was using the same language used by abortion opponents….Daschle was saying we should protect the life of a viable fetus….This is common ground.”

But the Doe decision’s overly broad interpretation of health as complete well-being blocks such a compromise.  Thus, in the presidential debate, McCain replied to Obama’s proposal, “He's [for] health for the mother.  You know, that's been stretched by the pro-abortion movement in America to mean almost anything.  That's the extreme pro-abortion position, quote, ‘health.’…”  On this point, McCain is arguably correct.

Roe’s visionary compromise on late-term abortion has failed because Doe’s definition of “health” was overly broad, but the path to achieving such a compromise is clear.  By revisiting Doe, the Supreme Court could offer a narrower, more precise and accurate definition of health, thus achieving the compromise sought in Roe.  This is a worthy goal considering what the failure of that compromise has wrought for American politics. Moreover, for the Left to admit that the Right has a legitimate point about Doe is the kind of change that our intellectually corrupted, hyper-partisan political process desperately needs—as evidenced by the appearance of this issue even in the congressional debate over revamping the national health care system.