Putting the Obama comments on third-term abortion into perspective

I've often thought, whenever I hear Barack Obama talking about choice, abortion, women's bodily autonomy and abstinence, that he doesn't really know what he's talking about. The answer to such criticism is usually, "But he has a great record on choice!" or, "He has a 100% NARAL rating!" (Like that's worth much.)

I've long had the feeling that Obama just doesn't know how to talk about these issues in a way that makes it clear that he strongly supports womens' rights to bodily autonomy but also communicates that he understands the moral qualms some people have. That's what "safe, legal and rare" did, after all. And he usually votes the right way (those "present" votes in Illinois notwithstanding), and certainly, his written positions are fine. But written statements are usually put together by staff, and crafted carefully.

Which leaves us with Obama's public statements on choice. And whenever he opens his mouth, something garbled comes out. It's as if he doesn't really know what he's talking about. He manages to come out against settled law and in favor of anti-choice positions, using language that seems designed to appeal to evangelicals. Let's just take his comments to Relevant magazine:
I have repeatedly said that I think it's entirely appropriate for states to restrict or even prohibit late-term abortions as long as there is a strict, well-defined exception for the health of the mother. Now, I don't think that "mental distress" qualifies as the health of the mother. I think it has to be a serious physical issue that arises in pregnancy, where there are real, significant problems to the mother carrying that child to term. Otherwise, as long as there is such a medical exception in place, I think we can prohibit late-term abortions.
Obams has, of course, backpedaled on this (more on that later), but I want to draw your attention to some reactions to his original comment:

While NARAL relased an execrable statement in which it shot its credibility in the foot it hadn't already shot when it endorsed him before the end of the primary and admitted that it was after his donor list, others weren't so inclined to cut him any slack:
A leading abortion opponent, however, said Obama's rhetoric does not match his voting record and his previously stated views on abortion rights.

David N. O'Steen, the executive director of National Right to Life, said Obama's remarks to the magazine "are either quite disingenuous or they reflect that Obama does not know what he is talking about."

"You cannot believe that abortion should not be allowed for mental health reasons and support Roe v Wade," O'Steen said.
I never thought I'd be saying this, but O'Steen is right. There's no way to reconcile Obama's comments to Relevant with support of Roe v. Wade (and Doe v. Bolton, which was decided the same day). So either he's making a disingenuous pitch to evangelical voters, or he hasn't taken the trouble to study the issue and the actual cases (kind of a big failing in a Constitutional Law prof, no?). This is clearly explained by Jan Crawford Greenburg, ABC's legal correspondent, in this article passed on by Shakers sassysenora and lola in comments (emphasis mine):
But that's nothing compared to Obama's most recent comments about the most controversial social issue of them all: abortion.

In a recent interview, Obama appears to back away from his long-stated positions on abortion (and a proposed federal abortion rights law he had co-sponsored), repudiate 35 years of accepted Supreme Court rulings on the issue and embrace a view on abortion restrictions that has been expressed on the Court only by Justices Thomas and Scalia.

Obama's remarks are printed verbatim in the interview, published yesterday in Relevant Magazine. Read them — there's no mistaking that Obama says he no longer will support what's long been a cornerstone of the abortion rights debate: The Court's insistence that laws banning abortions after the fetus is viable (now about 22 weeks) contain an exception to allow doctors to perform them if necessary to protect a pregnant woman's mental health.

'I have repeatedly said that I think it's entirely appropriate for states to restrict or even prohibit late-term abortions as long as there is a strict, well-defined exception for the health of the mother. Now, I don't think that 'mental distress' qualifies as the health of the mother," Obama said. "I think it has to be a serious physical issue that arises in pregnancy, where there are real, significant problems to the mother carrying that child to term. Otherwise, as long as there is such a medical exception in place, I think we can prohibit late-term abortions."


This has been a central battleground issue in the Supreme Court going back 35 years,
to Roe v. Wade and Doe v. Bolton, when the Court ruled a woman had a constitutional right to abortion. The decisions said state's can ban all abortions after the fetus is viable -- but that any restrictions must include exceptions to protect a woman's physical and emotional health.

In the years since, anti-abortion groups have fought hard against mental health exceptions, arguing that they create giant loopholes that make abortion bans meaningless. Doctors, they argue, can always find a "mental health" exception. But abortion rights groups just as strongly argue the mental health exception is critical to preserving a woman's right to an abortion—and that the woman and her doctor must be allowed to make those decisions about her health without government interference.

In 1973, when the Court issued Roe and Doe — on the same day — it sided with the abortion rights groups and said states could not interfere with a doctor's medical judgment on whether an abortion was necessary.

"[M]edical judgment may be exercised in the light of all factors--physical, emotional , psychological, familial, and the woman's age--relevant to the well- being of the patient," said the Supreme Court in Doe, which was a companion case to Roe. "All these factors may relate to health . This allows the attending physician the room he needs to make his best medical judgment."

Obama's comments that he does not support mental health exceptions in so-called post-viability abortions (after 22 weeks) is squarely at odds with that holding, which remains the law of the land today.
Let that sink in a bit. Barack Obama, professor of Constitutional Law at the University of Chicago Law School -- which, to borrow a phrase from Clarice Starling, is not a charm school -- is running around telling Christian magazines that he doesn't think mental health should be considered important when considering exceptions to bans on third-term abortions, which is wholly, squarely at odds with the very holding of the decisions legalizing abortion, while at the same time maintaining that he supports Roe.

Either he's slicing things very fine -- the inclusion of mental health as part of the package is part of Doe, not Roe, and he's only said he supports Roe -- or he just hasn't bothered to read the cases and educate himself about things. Because that phrase, "squarely at odds with the holding" that Greenburg used? That's legalese for, "Didn't you even read the fucking case, you dipshit?"

Or, and this is what's really scary to think about, he really believes all this. Which, when you combine it with the continuation of the faith-based initiatives, his plans for a religious council to help set the national agenda, and his specifically religious (and specifically evangelical-Christian) outreach, makes me wonder how much closer to a theocracy he'll get than Bush managed.

Why is it scary? Because of the company he keeps in that position:
Indeed, only Thomas and Scalia have expressly supported the position that a mental health exception is not necessary. They penned a dissent to that effect in 1998, when the Court refused to take up the Ohio case that struck down a state law because it did not include an exception to protect a woman's mental health.
Then there's his backpedaling/"clarification" of his remarks:
Obama: "My only point is this -- historically I have been a strong believer in a women's right to choose with her doctor, her pastor and her family.
This isn't the first time he's dropped the "pastor and family" bit into this. And again, he's simply wrong on the law. From a summary of the holdings in Planned Parenthood v. Casey:
2. Section 3209's husband notification provision constitutes an undue burden and is therefore invalid. A significant number of women will likely be prevented from obtaining an abortion just as surely as if Pennsylvania had outlawed the procedure entirely. The fact that § 3209 may affect fewer than one percent of women seeking abortions does not save it from facial invalidity, since the proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom it is irrelevant. Furthermore, it cannot be claimed that the father's interest in the fetus' welfare is equal to the mother's protected liberty, since it is an inescapable biological fact that state regulation with respect to the fetus will have a far greater impact on the pregnant woman's bodily integrity than it will on the husband. Section 3209 embodies a view of marriage consonant with the common law status of married women but repugnant to this Court's present understanding of marriage and of the nature of the rights secured by the Constitution. See Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 69. Pp. 46-58.
But you know who was in favor of that husband notification provision, and argued it wasn't an undue burden? Sam Alito, who was on the Third Circuit Court of Appeals when it heard Planned Parenthood v. Casey, and who wrote a dissent from the rest of the panel's decision to invalidate the husband notification provision.

Now, there is one possibility that might charitably explain Obama's terrible record when he speaks about choice: he started off his political career in a black community in Chicago, and many people of color are extremely leery of abortion because abortion and sterilization and removal of their children was used to control them in the past (and, sadly, in the present, now using drug abuse, disability, or other perceived unfitness as a proxy; see also Killing the Black Body by Dorothy Roberts). It could be that he had to vote the party line on matters of choice in order to maintain party backing, but that he never learned to speak about these issues because they were not big issues in the community he represented. And then, when he ran for Senate, his opposition was a joke after Jack Ryan dropped out, so the issue rarely came up. When he did speak publicly, he often couched his answers in social-conservative rhetoric, which might have worked well in Illinois. But running for President is a whole different ball game, and abortion is going to come up. If he has any prayer of convincing those already leery of him that he's strongly for choice, he's got to stop sounding like Scalia, Thomas and Alito.

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