“Necessary, in appropriate medical judgment, for the preservation of the life or health of the mother” does not mean the same thing as medically necessary

Even though most Americans believe that “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother” means the same thing as medically necessary, an abortion that is not medically necessary can be legally considered to be “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother” because the United States Supreme Court broadly defined “health of the mother” as “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the wellbeing of the [mother]” in the Doe v. Bolton case, which is the companion case of Doe v. Bolton. The broad definition of health in the Doe v. Bolton decision, along with the requirement that abortions after viability be legal whenever they are “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother,” has allowed abortion on demand to be effectively legal for any reason during all nine months of pregnancy in the United States because abortionists can legally claim that an abortion is “necessary, in appropriate medical judgment, for the preservation of the health of the mother”, even when the abortion is medically unnecessary.

There are certain criteria that have to be met in order for a medical procedure to be medically necessary, and some of the abortions that are legally considered to be “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother” under the criteria set forth in the Roe v. Wade and Doe v. Bolton decisions are not considered to be medically necessary under the criteria accepted by most of the medical profession and health insurance companies. Here are the criteria that have to be met for a medical procedure to be medically necessary:

  1. The procedure must be in accordance with the generally accepted standards of medical practice.
  2. The procedure is performed for the purposes of preventing the death of the patient or preventing, diagnosing, or treating an illness, injury, or disease of the patient.
  3. The procedure is clinically appropriate, in terms of type, frequency, extent, site and duration.
  4. The procedure is effective in preventing the death of the patient or in preventing, diagnosing, or treating an illness, injury, or disease of the patient.
  5. The procedure is not primarily performed for the convenience of the patient, the physician, or other health care provider.
  6. The procedure is less expensive than an alternative which is at least as likely to produce equivalent therapeutic or diagnostic results as to the diagnosis or treatment of the patient’s illness, injury or disease, or as to preventing the death of the patient.

Abortions that are legally considered to be “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother” under the criteria established under the Roe v. Wade and Doe v. Bolton decisions might not be considered to be medically necessary under the criteria accepted by most of the medical profession and health insurance companies for several reasons. First, such an abortion might not be in accordance with the generally accepted standards of medical practice. Second, most of the abortions that fall under the so-called “health of the mother exception” are performed for purposes other than and apart from preventing the death of the mother or preventing, diagnosing, or treating an illness, injury, or disease of the mother.  Third, most abortions are primarily performed for the convenience of the mother, and as such would not fall under the medical necessity criteria used by health insurance companies and most of the medical profession. Finally, an abortion might be considered to be clinically inappropriate under the criteria used by health insurance companies and most of the medical profession, even though abortion providers often consider these abortions to be clinically appropriate.

Many Americans misunderstand the difference between an abortion that is “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother,” as defined by the Roe v. Wade and Doe v. Bolton decisions, and an abortion that is medically necessary under the definition accepted by most of the medical profession and by health insurance companies. This misunderstanding has allowed abortionists to legally perform medically unnecessary abortions during all nine months of pregnancy in the United States. In addition, this misunderstanding has enabled abortionists and abortion providers to file claims for abortions that are considered to be medically necessary by the abortion provider but would not be considered to be medically necessary by the health insurance provider. Moreover, some of the women who are seeking an abortion that is deemed to be “necessary, in appropriate judgment, for the preservation of the health of the mother” by an abortionist might not understand why such an abortion might not be covered under an health insurance policy that covers medically necessary abortions but does not cover elective abortions. Furthermore, this misunderstanding has allowed abortion providers to receive taxpayer funding that it should not have been entitled to by claiming that the abortions are “necessary for the preservation of the health of the mother.” Finally, if more individuals understood the difference between “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother” and medically necessary, there would be increased support for prohibiting medically unnecessary abortions after viability and there would be decreased support for taxpayer funding of abortion providers.

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Enacting a 20-week-ban on abortion in the United States

A ban on abortion after 20 weeks post-fertilization should be enacted, and such a ban should not include a rape or incest exception. Although it is perfectly understandable that women who become pregnant as a result of rape should not have to suffer through an unplanned pregnancy that was caused by an act beyond her control, rape and incest exceptions should not exist in laws that prohibit abortions because:

  • Abortion always kills an innocent human being
  • Rape-conceived pregnancies can usually be safely carried to term
  • Cases where rape-conceived pregnancies cannot be carried to term are already addressed through “life of the mother” exceptions and “health of the mother” exceptions to prohibitions on abortion
  • Women who do not want to take care of a rape-conceived children can give up their babies for adoption
  • Some women who become pregnant as a result of rape are actually unwilling to abort a rape-conceived pregnancy

In addition to the above reasons, most of the women who have been raped are aware that they have been raped, and these women can find out whether or not they became pregnant as a result of rape well before the 20th week of pregnancy through an ultrasound because a pregnancy will usually show up on an ultrasound by the 8th week of pregnancy.

The Pain-Capable Unborn Child Protection Act would prohibit most abortions after 20 weeks post-fertilization or after a gestational age of 22 weeks. Unborn children are possibly viable outside of the womb at the 20-week post-fertilization limit proposed under the Pain-Capable Unborn Child Protection Act. In fact, Amillia Taylor was born at a gestational age of 21 weeks and 6 days and did survive being born that early. If Amillia Taylor could survive outside of the womb a day earlier than the 20-week post-fertilization limit proposed under the Pain-Capable Unborn Child Protection Act, then other unborn children might be able to be saved if born at 20 weeks post-fertilization.

The United States Supreme Court had established the following trimester framework in the Roe v. Wade case:

  • During the first trimester of pregnancy, the abortion decision and the performance of the abortion must be left to the medical judgment of the pregnant woman’s attending physician.
  • From approximately the end of the first trimester of pregnancy, the state can regulate abortions in ways that are reasonably related to maternal health in order to further its interest in protecting its interest in the health of the mother.
  • For the stage of the pregnancy subsequent to viability, the state can regulate and even go as far as prohibiting abortion, except where “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother”, where “health of the mother” is defined as the “physical, emotional, psychological, [and] familial” well-being of the mother.

Since unborn children are possibly viable outside of the womb at the 20-week post-fertilization limit proposed under the Pain-Capable Unborn Child Protection Act, the first part of the Roe trimester framework does not apply to abortions that would be prohibited under this act and the second and third parts of the Roe trimester framework are clearly applicable to abortions that would be prohibited under this proposed act.

Roe v. Wade has enabled legal abortion-on-demand in the United States for any reason during all nine months of pregnancy up until the moment of birth through the imposition of a “health of the mother” exception requirement in the Roe v. Wade trimester framework and through the broad definition of “health of the mother” in the Doe v. Bolton case. However, at least four of the United States Supreme Court justices that were involved in the final decision of the Roe v. Wade and Doe v. Bolton cases, including two justices that supported the final decision in both of these cases, did not intend for there to be a right to abortion-on-demand during all nine months of pregnancy.

Although the Pain-Capable Unborn Child Protection Act does provide exceptions for the life of the mother and for “the substantial and irreversible physical impairment of a major bodily function, not including  psychological or emotional conditions, of the pregnant women,” this proposed legislation does not explicitly include an exception for the health of the mother and this proposed legislation is probably unenforceable due to the Roe v. Wade and Doe v. Bolton decisions, except in the case of partial-birth abortions through the intact dilation and extraction technique. This legislation will probably be challenged in the federal courts if it is enacted because this legislation does not include an explicit, broad “health of the mother” exception, and also because there would be strong opposition to this legislation by the abortion industry.

The United States Supreme Court is likely to hear a case involving a law that prohibits abortions after 20-weeks post-fertilization. The United States Supreme Court should uphold such a law, and the United States Supreme Court should also rule that states can even prohibit abortions that are deemed necessary for the preservation of the life or health of mother after viability for the following reasons:

  • The bans on abortion after 20 weeks post-fertilization being proposed by the United States Congress and by some states recognize a governmental interest of protecting unborn children against fetal pain.
  • Unborn children are possibly viable outside of the womb at 20 weeks post-fertilization.
  • Abortions can pose a serious danger to the “physical, emotional, psychological, [and] familial” well-being of the mother, even in cases where an abortion is deemed necessary for the preservation of the life or health of the mother.
  • Abortions performed for the purposes of preserving the life or health of the mother are sometimes ineffective in preserving the life or health of the mother.
  • The text of the United States Constitution does not distinguish between abortions that are necessary for the preservation of the life or health of the mother and abortions that are not necessary for the preservation of the life or health of the mother.
  • The imposition of a “health of the exception” requirement in the Roe v. Wade trimester framework implies the existence of a constitutionally guaranteed right to health-preserving medical care that is not essential to preventing the death of a patient, even though such a right does not exist within the text of the United States Constitution.
  • Except in the case of abortion, the United States Supreme Court has never declared a constitutionally guaranteed right to health-preserving medical care that is not essential to preventing the death of a patient.
  • The United States Supreme Court imposed the requirement for a “health of the mother” exception in the Roe v. Wade decision without citing any basis in the United States Constitution for such a requirement.
  • Even though the Roe v. Wade and Doe v. Bolton decisions had the effect of legalizing abortion on demand during all nine months of pregnancy for any reason, at least four of the United States Supreme Court justices involved in the Roe v. Wade and Doe v. Bolton decisions, including two that supported these decisions, did not intend for these cases to create a right to abortion-on-demand during all nine months of pregnancy.
  • The governmental interests that enable the government to prohibit abortions after viability in cases where abortions are not necessary for the preservation of the life or health of the mother still exist in cases where abortions are necessary for the preservation of the life or health of the mother.
  • The majority of Americans believe that abortion-on-demand should be illegal after viability.

Even if Roe v. Wade is not completely reversed, I predict that the following decisions will be made in future cases before the United States Supreme Court:

  • States will be allowed to regulate any abortion procedure performed after the moment of implantation.
  • After viability, states will be allowed to prohibit abortions that are deemed necessary for the preservation of the life or health of the mother in some circumstances.
  • States will eventually be allowed to prohibit abortions after viability in all circumstances, even when an abortion is deemed necessary for the preservation of the life or health of the mother.

Today is the 42nd Anniversary of Roe v. Wade and Doe v. Bolton

Today is the 42nd anniversary of the Roe v. Wade and Doe v. Bolton cases, both of which enabled abortion-on-demand to be legal in the United States during all nine months of pregnancy. Over 57 million unborn children have been killed as a result of legal abortion in the United States since abortion-on-demand was legalized nationwide during all nine months of pregnancy on January 22, 1973. The debate over whether abortion should become illegal in the United States is far from over, despite what the United States Supreme Court decided in Roe v. Wade and Doe v. Bolton 42 years ago.

The United States House of Representatives is currently proposing two major pieces of pro-life legislation. The first major piece, known as the Pain-Capable Unborn Child Protection Act, would prohibit most abortions after 20 weeks post-fertilization on the grounds that unborn children can feel fetal pain at that stage of pregnancy. The second major piece, the No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2015, would prohibit federal funding of most abortion procedures, would prohibit federal funds from being used for abortion coverage under healthcare plans, and would require full disclosure of any abortion coverage under any healthcare plan provided pursuant to the Patient Protection and Affordable Care Act. Obama is likely to veto both of these pieces of legislation if these pieces of legislation pass in the U.S. House and the U.S. Senate. In addition, the Pain-Capable Unborn Child Protection act would probably be challenged in federal courts if it becomes law because of opposition to this piece of legislation by the abortion industry and also because this law might not meet the health exception requirement under the Roe v. Wade and Doe v. Bolton rulings.

The United States Supreme Court should uphold Texas HB 2, which was passed by the Texas Legislature in the second special session of the 83rd legislature and signed into law on July 18, 2013, because the intent of the law is to protect women who are undergoing abortions from the dangers of abortion procedures and also because the Texas Legislature did not intend to prohibit abortion providers from performing legal abortions at abortion clinics that meet the standards required under HB 2. In addition, the United States Supreme Court should also rule that prohibitions on late-term abortion and partial-birth abortion are constitutionally permissible in every circumstance, even when the an abortion has been determined to be necessary for the preservation of the life or health of the mother. Both of these actions would benefit American society, would lead to a reduction in the overall abortion rate, and would lead to decreased demand for abortion in the United States if the United States Supreme Court upholds HB 2 and rules that prohibitions on late-term abortion are constitutionally permissible in every circumstance.

In addition to prohibiting taxpayer-funded abortions and prohibiting late-term abortions, more needs to be done to help women who are in unplanned pregnancies to ensure that these women will not resort to abortion and to ensure that their children are taken care of after birth. Improving access to prenatal care for women who are in unplanned pregnancies through healthcare providers that will not pressure them into undergoing abortions will encourage these women to choose life, will reduce the demand for abortion, and will lead to more healthy babies being born. In addition, providing assistance to low-income women and improving access to adoption placement assistance for pregnant women who do not want to raise their unborn children after birth will reduce the demand for abortion.