Editor’s note. NRLC has repeatedly informed Congress in recent months, in the District of Columbia, the nation’s capital, abortion is currently legal, for any reason, up until the moment of birth. There is absolutely no law restricting abortion, even after “viability.” NRLC has urged Congress to enact the District of Columbia Pain-Capable Unborn Child Protection Act (H.R. 3803), which would declare unborn children to be pain-capable at 20 weeks fetal age and prohibit abortion, except in cases of life endangerment to the mother, after that point.
In a May 17 story on the bill, the Associated Press contradicted the NRLC statement. Based on misinformation provided by local officials, the AP asserted that after “viability,” abortions were legal in the District only for certain reasons. NRLC Legislative Director Douglas Johnson promptly challenged this statement by AP. The AP investigated further, after which the AP issued a formal correction, confirming, “Abortions for any reason are legal in the District.”
On May 29, Robin Marty, a regular contributor to one of the more prominent pro-abortion websites, RHrealitycheck.org, unleashed a harsh attack on the AP for issuing the correction. Mr. Johnson in turned responded to Marty’s attack. The bulk of his response is reproduced below. The complete exchange appears — for the moment, at least — at www.rhrealitycheck.org/article/2012/05/29/associated-press-pressured-into-anti-choice-correction#comments)
Douglas Johnson: I’m here to talk about the AP’s initial error, and its correction, and about the actual state of the abortion law in the District of Columbia. Unfortunately, Robin Marty makes essentially the same mistake that the AP made in its initial story. Let’s see if she, too, will correct herself, once she takes a closer look.
Marty writes, “In D.C., an abortion post-viability is allowable for the exact same reasons it is allowed under the established criteria in Roe v. Wade: life or health of the mother.” Let’s stop right there. Marty has just made what used to be known as a “schoolboy error.” (Are we still allowed to say that?) She apparently slipped into thinking that Roe v. Wade itself imposed some affirmative limitations on abortion — by which I mean, some limits that are constitutionally required and that therefore, somehow, are in force everywhere.
But that premise is entirely erroneous. I am not aware of any attorney, on any side of the abortion issue, who has ever defended such an assertion.
As far as I know (and I’ve done some reading on this subject), the U.S. Supreme Court has never held, in Roe v. Wade or any other ruling, that any legislative body is required to adopt a limitation on abortion, at any stage in pregnancy, with respect to any jurisdiction. Roe v. Wade, Doe v. Bolton, all other abortion-related Supreme Court decisions deal entirely with what limitations on abortion the Supreme Court will permit state, local governments, or Congress to apply to abortion.
(By the way, I am not discussing here, at all, what requirements or limitations with respect to abortion policy I personally think might be found the U.S. Constitution, if the Constitution were properly interpreted. I am talking here only about what the Supreme Court has actually said and done on the subject.)
Now, here is the point: What the Supreme Court said about what limits it would allow governments to enforce, with respect to abortion, is simply irrelevant to the current legal situation in the District of Columbia. That is because a local legislative entity known as the District Council repealed the entire abortion law.
We live under a legal system in which all things are lawful except those things that are prohibited by actual laws. Therefore, it is now perfectly lawful, in the District of Columbia, to perform an abortion for any reason until the moment of birth.
With that in mind, let’s look again at exactly what the AP said in its original May 17 story: “In the District, abortion is legal before a fetus is considered viable outside the womb and after viability to protect the life or health of the mother.” That sentence can only be fairly read to mean that abortions in the District would be unlawful if performed after “viability” unless they are performed “to protect the life or health of the mother.”
Thus, if the original AP statement had been correct, it follows that if an abortionist walked into the prosecutor’s office with an affidavit, in which he swore that he had performed an abortion after viability that was not necessary “to protect the life or health of the mother,” he would have confessed to an act that was unlawful, and therefore would face arrest and/or other sanctions. Moreover, if the original AP statement had been true, then NRLC would have been misinforming Congress in asserting, for example in NRLC’s May 14, 2012 letter to U.S. House members, “In the District of Columbia, abortion is now legal at any point up to the moment of birth, for any reason . . .”
But the AP statement was not true. Therefore, NRLC challenged AP’s erroneous statement, AP spent some time investigating the matter, and AP properly ran a correction.
I would like to underscore this: The point I am making has nothing whatever to do with the meaning of the word “health” in Roe v. Wade, Doe v. Bolton, or any other Supreme Court opinion. It has also has nothing whatever to do with what “health of the mother” means when it appears in some abortion-related statute, or what “viability” means when the term appears in a statute. Those are interesting and important questions to discuss in other contexts, but they are entirely irrelevant to the current legal situation in the District of Columbia — because there is no law that limits abortion to “health” cases, whether before or after viability, in the District. The District Council repealed the only law. See?
Now, allow me to make a prediction, which I would love to see not come true: Robin Marty might try to avoid the point here, to deflect attention away from her error. She might try to change the subject to discuss what self-imposed policies certain abortionists claim that they operate under with respect to gestational age, reasons, or whatever. She might try to shift the discussion to what she thinks she knows about the current “availability” of abortion, at one point or another, in the District of Columbia. These, too, are questions that might be worthy of exploring at another time — but they have nothing to do with the original error by the AP — or with the schoolboy error of Robin Marty, who imagined that there is a law, where there is no law.
National Right to Life Committee