Who Decides?

There’s not a lot I can add to Pema Levy’s excellent response to William Saletan, but I did want to emphasize a couple points. First of all, Saletan does deserve credit for acknowledging pro-choice arguments about the effect of the arbitrary abortion regulations that states like Pennsylvania have implemented — it’s good that he’s not using the Gosnell case to argue for additional regulations that are irrelevant or counterproductive.

Having said that, there’s a very important policy difficulty that Saletan’s question sidesteps. Let’s assume, for the sake of argument, that laws that ban post-viability abortions that are not necessary for a woman’s life or health are legitimate as part of a legal regime that otherwise protects a woman’s reproductive freedom. The issue is who decides whether or not an abortion is medically necessary. It’s possible that the existing exception can be evaded by doctors not operating in good faith. But more stringent regulations (such as requirements for panels of doctors or permitting late-term abortions only to save a woman’s life) run the opposite risk: denying women who have a genuine medical need a safe abortion. Even if we can answer “yes” to Saletan’s question in principle, then, this doesn’t get us very far in terms of the underlying policy dispute. And like Pema, I strongly favor erring on the side of trusting women as opposed to giving further authority to doctors.

There’s another reason I agree with Pema: the Canadian case. In Canada, late-term abortions are not legally restricted, and Canada also doesn’t have the other kinds of restrictions found in many American states and doesn’t exclude abortion from guarantees of health care. As far as I can tell, there’s no evidence that Canadian women get late-term abortions at significantly higher rates (and historically overall abortion rates in Canada have actually been lower.) Essentially, absent evidence to the contrary I think the presumption in favor of a woman’s decision-making capacity is justified, and further restrictions are likely to do more harm than good.

[X-Posted to TAPPED.]