Abortion and Whack-a-mole

Gov. Janet Mills, of Maine, is in the process of putting on the books a law that will allow physicians’ assistants and nurse practitioners to perform abortions.  I had not thought of that approach and when I read it in Vox Sentences this morning [1] I thought, “Well….of course.”  My brother, John, captured this experience perfectly when he said “What I found was a surprise that should have been an expectation confirmed.” [2]

Maine 1This is an ongoing game of Whack-a Mole.  Let’s start with Roe v. Wade (1973).  The question there was whether the government of Texas was permitted to intrude into Roe’s “zone of privacy” and forbid her having an abortion that she and her doctor thought she should have.

Does the Constitution provide “a zone of privacy?”  Certainly it does.  Right after Roe v. Wade declared that it did.  So states are not allowed to “forbid” abortions.  They can, of course, “constrain” abortions, (Whack) provided it does not pose an “undue burden” on the woman.  (Planned Parenthood v. Casey, 1992)

Due burdens are perfectly OK.  “Zone of privacy” standards are yes and no standards.  “Undue burden” standards are “how much” standards.

So who pays for an abortion? [3]  Ordinarily, that is a medical insurance question.  If no medical insurance plans cover it, it becomes unavailable to most women.  That is why the Affordable Care Act (Obamacare) required institutions that provide insurance for employees to include abortions in the covered procedures. [4]

maine 3At this point, the “state intrusion into the zone of privacy” mole has been whacked.  But that becomes burdensome sometimes (as, in Pennsylvania, when it required spousal consent), so “undue burdens” are forbidden.  Whack.  Now we have required insurance coverage.  But companies are allowed to opt out under some circumstances.  Whack.

So, where can I have this procedure done?  Well, at any licensed facility.  Sure.  And what are the requirements for licensure?  Let’s get creative here.  Let’s say that no medical facility can be licensed to practice in Georgia if a virus has ever been discovered on the property.  We are only concerned about the health of the women you understand.

maine 3So “all hospitals are allowed to (a federal standard) becomes “all licensed hospitals are allowed to” (a state legislative standard) and the state standards are set so that no hospital meets them.  Whack. [5]

But aren’t there federally funded and licensed hospitals and clinics?  How about them?  Well, so long as Roe v. Wade stands, the feds cannot forbid abortions at such clinics, but they can defund them.  The way this would work is that no federal funds are available for a clinic at which abortions are (also) performed.  Along with appendectomies. Whack.

And at what age do these restrictions bear upon the fetus?  Casey (1993) establishes that the ability of the state to regulate begins at the “age of viability,” or when, in the opinion of the doctors, the fetus could live outside the womb.  And when would that be?  Well, the fact is that medical practices has advanced to the point where the “age of viability” has been pushed back a very long way.  The money it costs to rescue a child from this new expanded “age of viability” is staggering, but then again, it isn’t the parents’ money.

maine 3The problem with this expansion, from a political point of view, is that it is technical.  Only doctors (elites, not people like you and me) can establish an age of viability.  Georgia’s approach to this difficulty—the difficulty, remember, is that we turn these questions over to elites—is to establish the fetal heartbeat as the sign of viability.  Georgia’s new abortion law is called the “fetal heartbeat” law and you will notice, I hope, that this is a perfect solution to the political problem.

People “know” that life starts when the heart starts beating because they know that life Maine 4stops when the heart stops beating.  It’s something that everybody knows.  It’s “common sense.”  [7]  Whack.

And, finally, who is permitted to perform abortions?  Well, doctors, of course.  And there are only so many doctors.  Enter the state of Maine.  It isn’t just doctors [6] but also physicians’ assistants (PA’s) and nurse practitioners (LPN’s) and there are lots more of them.  Whack.


Here’s the deal.  There is a virtually unlimited number of women who want to have abortions or who want to make sure that they are available should they be needed.  There is a limited number of mechanisms by which executive, legislative, and judicial bodies can make abortions unavailable.  So each specific law or decision or regulation—each whack of a particular mole—is going to put the pressure on some other part of the system and cause another mole to pop up.

There is no shortage of moles.  Whacking is a lot of work.  The moles are going to win.

[1]Thank you, Kevin Miller of thePortland Press Herald.Vox gave me a hyperlink to his article.

[2]  June 10.  He was talking about the internal structure of grapevines, but I recognized the sentiment.

[3]  There is no strategy for abortion elimination that prevents someone with a lot of money from going somewhere in the world that a safe abortion can be provided.  Regulating abortions by regulating how much they cost is a strategy for ordinary people.

[4]  There were also “fig leaf” provisions that allowed this coverage to be provided by someone else so long as it was paid for by the employer.

[5]  We’ll just skip over, here, the attempts to define an abortion procedure as a murder and the attending physician as a murderer.  It’s just too complicated.  And it doesn’t cover the doctors who have been murdered.

[6]  And eight other states.

[7]  The heart starts beating at about three weeks, depending on just how you are looking for a heartbeat.  Fetuses are not medically viable at 22 days.  The mother is unlikely to know she is pregnant at 22 days.  But the fetus is politically viable when the heart starts beating.

About hessd

Here is all you need to know to follow this blog. I am an old man and I love to think about why we say the things we do. I've taught at the elementary, secondary, collegiate, and doctoral levels. I don't think one is easier than another. They are hard in different ways. I have taught political science for a long time and have practiced politics in and around the Oregon Legislature. I don't think one is easier than another. They are hard in different ways. You'll be seeing a lot about my favorite topics here. There will be religious reflections (I'm a Christian) and political reflections (I'm a Democrat) and a good deal of whimsy. I'm a dilettante.
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