Thank you, oceankat, for this post. It is an important issue and you have brought up some interesting points, especially about the changing definition of "viability".

Fascinating post - thank you!

Two issues here:
"Mental distress, mental health or psychological issues accepted as falling under the health of the mother exception" I think there could be (and perhaps are) some detailed definitions as to what constitutes "mental distress" etc. Mental distress, as the words are commonly used, can be as minor as "upset" -- other mental health concerns can be serious and severe and mind-threatening as any life-threatening condition. IF or as long as the barrier is set at the third trimester, it's possible the 'mental' as opposed to 'physcal' part of the exception could be re-studied and some logical, workable distinctions made between "distress" and "mind-threatening" --- I suspect that in those examples pulled out by the pro-life side, there probably are some situations where most people would say "So why didn't you do something about it during the first two trimesters?" I don't know the area well but just some thoughts.

As to viability.... I remember the day Roe v Wade was announced, and explained. While celebrating the extremely important victory, those in the room where I was as it was being discussed looked at one another, uneasy and aware that to a certain extent we had to put blinders on to celebrate the decision ... just as the justices had, in some fashion, to put blinders on to reach the decision.

There is no firm, medical answer to the question of "when does life begin?" It was, even then, an arbitrary line that was drawn that didn't so much divide viable from non-viable as it divided "people will accept" from "it's too much to expect people to accept" It was a rationale rather than a reason ...... and we all knew it.

I think/hope that the focus on "mental distress" exceptions will keep the attention on that solveable (I think) part of the problem. The viability issue is a minefield.

This question show my ignorance (what can I say, I live in the liberal NE where it's not a serious dispute), but since PP v Casey (1992), what has happened in the States? Have any/many/most changed their laws in light of their ability to move from 'third trimester' to 'viability'?

Dear Dr. Obama:

"Mental stress" is a health issue.

Oh wait. You forgot you're not a doctor.

P.S. When you become president, you'll no longer be a legislator.

The pro choice contingent plays up those instances where there are severe medical problems to the mother, the fetus, or both. In these examples its clear that the late term abortion was necessary. The pro life movement plays up those instances where there is not a physical cause and claims that the mental distress exemption has been abused. Obama appears to be echoing the argument set forth by the pro life movement that the mental health exemption has been abused or quite possibly should be eliminated or greatly restricted.

Actually, from the quote you yourself provided, Obama appears to be echoing both points. As with other posters, however, I thank for bringing this up for a meaningful discussion.

As you say, third trimester abortions are a very rare procedure, and I'd be surprised to find out that any are performed for the mere "mental distress" of the mother. However, it's either true or it's not. If it is true, then is it right? If it's not true, then what changes have been made by suggesting that it should not be a reason?

I think it's also worthwhile to compare Obama's words to his actions in this regard. Not that his actions dispute his words, but that it paints the pragmatic picture. Despite his viewpoints, no bill has yet come up that has forced him to disagree with PP, NARAL, or NOW on anything.

It's 2008 and men still control a woman's reproductive rights. It isn't Obama's or anyone else's business as to when and why a woman has an abortion - it is a medical decision, neither the state nor society has any vested interest in that decision.

>

Just wanted to correct this. The point of viability is generally gauged at around 24 weeks. There has never been a viable fetus delivered at 20 weeks. The earliest I believe has been 23 weeks, and the rate of survival for 23 full weeks is only around 17%. That of course includes infants who survive, but with profound disabilities (which is around half).

http://www.adhb.govt.nz/newborn/Guidelines/Admission/BorderlineViability.htm

This isn't actually contradicted by the article you linked to (I think you may have confused statements from Santorum on when abortions are performed with fetal viability).

Also, medical professionals seem to agree that it's extremely unlikely the threshold for fetal viability would extend prior to 23-24 weeks. So it's not quite the slippery slope some may think.

But I do agree with your larger critique of an earlier poster who asserted post-viability abortions could be performed simply because the mother chose it on a whim. That's simply not the case. There are very, very, few clinics that even perform abortions past 16-18 weeks. An abortion past 24 weeks would entail a hospital visit. Such procedures cannot be done in a clinic. As such, there must be some medical necessity in order for the procedure to be performed.

From the opinion of the Court delivered by Justice Blackmun:

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

Per the Court's opinion, the two cases are supposed to be read together:
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Yes, I agree. That's why they were released the same day. Funny thing, I did most of my reading on abortion about 10 years ago. I was involved in a casual discussion on another newsgroup. I got so pissed at one of the anti abortion proponents, not for his pro life views, I can tolerate differences of opinion, but for his extreme misogyny. I began to read everything I could find on the subject for the sole purpose of making him look like a fool. My apologies if I slid a bit in that direction and got picky about largely irrelevant details.

oceankat --
You said of the term "mental distress" that "For those who have been following the abortion arguments back and forth it has great meaning among the most extreme abortion foes."

What exactly is that meaning? If it was indicated in your original post, I missed it. The one statement you made: "Mental distress, mental health or psychological issues are accepted as falling under the health of the mother exception."

Mental problems could, I would imagine, come in as many varieties and degrees of severity as physical problems: some of the latter are life-threating and some are not, some of the former are, for lack of a better term 'mind-threatening' and some are not. Does the meaning to mental distress given by those extreme abortion foes mean *any* mental condition that could be worsened by continuing the pregnancy? Certainly if it's a 'term of art' or a code, as you indicate, we would need to know what it stands for to accurately interpret Obama's statement.

Well, I couldn't help it - had to go see what the current status was. Below are snippets of the two most recent Supreme Court decisions I could find addressing the issue of a "mental health" exception.

Both had dissents by Thomas, with Scalia and Rhenquist joining. It's clear they want to prohibit any late-term abortions for anything other than death or serious physical threat to the mother. No surprise -- but what they don't acknowledge (and no one but the 6th Circuit has acknowledged) is that there is mental health and then there is "severe non-temporary mental and emotional harm"

I think Obama is going to have to clarify what HE was talking about when he said "mental distress."

Rhenquist is gone but I fear it's safe to say that if Roberts and Alito joined the other two on the habeas corpus case, they are probably right there with them on this issue also.

If you wade through the stuff below, do be sure to note Thomas' nasty digs.

Most recent discussion:
Voinovich v. Women's Medical Professional Corp., 523 U.S. 1036 (1998)

Ohio statute provided that abortions when the fetus is viable may not occur unless “the abortion is necessary to prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman” Definitions in the statute make it clear that this would for mental health reasons of any sort or for rape, incest or severe deformity/early death of the child.

Federal District Court prevented the law from going into effect because in Doe v Bolton, the Supreme Court held that another statute was not unconstitutionally vague because it allowed physicians to consider “all factors-physical, emotional, psychological, familial, and the woman's age-relevant to the well-being of the patient” and thus, the court concluded
“a state may not constitutionally limit the provision of abortions only to those situations in which a pregnant woman's physical health is threatened, because this impermissibly limits the physician's discretion to determine what measures are necessary to preserve her health.”

This uses the word “health” to mean mental and physical health.

Sixth Circuit Court of Appeals affirmed: “a woman has the right to obtain a post-viability abortion if carrying a fetus to term would cause severe non-temporary mental and emotional harm.”

Supreme Court:
Majority: denied writ of certiori (in other words, refused to hear the case)
Dissent: Thomas, joined by Scalia and Chief Justice Rhenquist):
The Sixth Circuit’s conclusion constitutes an “ unwarranted extensions[] of our precedents.” He noted that 3/4 of the States have statutes limiting the reasons for which abortions may be performed late in pregnancy and “the vast majority of those statutes do not contain an explicit mental health exception.” [[Question: but do they explicitly rule out such an exception, as the Ohio statute did?]] He went on to say that the lower court “wrenched this Court's prior statements out of context in finding the statute's lack of a mental health exception constitutionally infirm.” The fact that Doe v Bolton mentioned those factors, including emotional and psychological “in no way supports the proposition that, after viability, a mental health exception is required as a matter of federal constitutional law. Doe simply did not address that question.” -------- And then he added a rather nasty swipe, saying that “the [6th Circuit] panel majority's quarrel with the wishes of the Ohio Legislature on this score appears to be grounded in abortion policy, not constitutional law.” [Ouch!]

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Most recent mention:
Stenberg v. Carhart, 530 U.S. 914 (2000)

Cobbled-together majority (Breyer writing) held Nebraska statute unconstitutional because, in part, it “lacks any exception 'for the preservation of the ... health of the mother.'”

Dissent by (you guessed it) Thomas, joined by Scalia and the Chief Justice Rhenquist:
“The majority's conclusion that health exceptions are required whenever there is any support for use of a procedure is particularly troubling because the majority does not indicate whether an exception for physical health only is required, or whether the exception would have to account for ‘all factors--physical, emotional, psychological, familial, and the woman's age--relevant to the well being of the patient.’” (Citing to Bolton and Voinovich)
................... With another nasty slap: “The majority's insistence on a health exception is a fig leaf barely covering its hostility to any abortion regulation by the States--a hostility that Casey purported to reject.”

" The fact that Obama addressed it is certainly significant." Ugh! I'll say! Now it is possible (I've noticed this about him on a couple of other things.) that he says something as he understands it and then, when he really focuses on the issue, he gets much more accurate. (And gets called a flip-flopper and back-tracker, but damnit I want a president who gets more information and adjust accordingly). So it's possible that he is thinking "mental distress" as I first heard it: "upset" "unhappy"

And even if he thinks that's his position, I don't know if he has thought it through to the real life application, if he's looked at the facts of the cases leading up to the decisions. (Curl your hair time! How about a 12 year old victim of incest who didn't even realize she was pregnant until late in the term when they happened to arrest the abuser?) I do believe in my gut that he would not appoint judges who would be 'doctrinaire,' in any direction, about a case like that. Whereas McCain has said he actually WANTS more like Scalia and Thomas!!

HOWEVER, that doesn't mean that if I were going to a town hall tomorrow I wouldn't want to pin him right to the wall (by his ears!!!) and ask very specificially what he meant by those statements! I went back and read the interview and it's troubling.

I think most of us agree that there should be a provision in the late term (third trimester, postviability, whichever measure used) to err on the side of protecting the baby with exceptions for the mother's health both physical and mental.

You may very well be correct in surmising that most of us agree, but that doesn't make it good law. It seems to me that if we need to err in any direction, it should be in favor of the rights of the person involved in the issue rather than the fetus.

You might argue that at some point the fetus IS a person, and I might agree. But there is no question that the woman is a person, is there?

But the critical points, I think, are

1) Is there going to be *any* mental health exception in the third-trimester/post-viability time period?
Right now there is - if the issue was decided to day it would probably go 5-4 in favor of 'retaining' that exception (thus the 12 year old would be allowed to avoid giving birth at that age to the product of incest)

2) Was Obama using "mental distress" to indicate that he sides with the 4 on this particular issue or was he keeping to the vauge term "distress" so that ... well ... folks could interpret it as they wished?

3) Are the Justices appointed by Obama more likely to vote with the current minority or majority? Same question for John McCain? (I'm not saying this would be a litmus test like retaining Roe v Wade is, whatever they say), but you have to look to the mind-set, underlying judicial philosphy and method of proceeding to a decision to hazard a guess as to how they would come down on a particular issue.

Very interesting subject -- thank you, oceankat.

Just from the few cases rulings that have been shared here, it looks to me like the Supreme Court has taken a broad perspective in interpreting the criterion of the preservation of the life and health of the mother in regulating abortion during the 3rd trimester or after the point of viability. It's also clear in the dissent opinions that there are Justices on the Court who would like to see those opinions narrowed. It seems that Obama would not be averse to that, so long as the decisions continue to protect a mother's right to an abortion in situations where her physical health is endangered. That leaves some gray area in cases where a mother's mental health may be endangered by having to go through with a late-term pregnancy. I don't know how often such cases occur or what the nature of these cases might be. But, it's worth looking at and talking about.

rooP -- I've worked with judges for several decades and can assure you that "activism" is very much in the eye of the beholder. For example, if the "strict construction" 4 (Scalia, Thomas, Roberts, Alito) were in fact "strict constructionist" then they could never EVER have written the dissent in the habeas corpus case.

But I have also read Obama's books and am not at all uncomfortable about the kind of judges he would appoint - even if I'm not crazy about his statement. No, even that's not accurate -- I'm potentially not crazy about his statement and would like to hear him explain his position (but it's okay if it's after the election if that's better....)

CarolBG -- Even as president, Obama is not going to have the opportunity to narrow or broaden options in this area. Nor would he be likely to know for sure which way an appointee would go on this one issue. (Roe v Wade, yes - both Obama and McCain would try to make sure of that, in different directions, but this is a more fine-point issue, and unless it's someone from the Sixth Circuit who actually ruled on it, he just won't know.)

The best you can hope for in appointing Sup. Ct. judges is to distinguish the "doctrinaire" from the "methodical" (my terms, I'm sure others have used better ones). Scalia and Thomas (and Rhenquist) are/were doctrinaire: they know where they want to go and they **will** get there, sometimes brilliantly.------- Sandara Day O'Connor was methodical -- perhaps she had the same goals, values and wishes, but in explaining the case before her to herself, carefully and methodically, she often wound up in unexpected places. And she always explained it, clear as a bell. (Which is why her silence in the Bush v Gore case was so ..... ominous, I guess is the word.) I think (it's just a guess at this point) that Alito is more doctrinaire ..... but it's possible Roberts could surprise us (and himself!).

I trust Obama, with his knowledge of the law and the constitution, to appoint judges who will think seriously and openly and allow the facts of the case, the applicable precedent, and the statute or Constitution speak to them while they are in the process of reaching a decision. That's the most you can hope for: intellectual honesty. And when you really have it, even the judges themselves don't know where they will wind up or how, hypothetically, they would vote on a particular issue.