On that cold and rainy January day in 1973 when the Supreme Court ruled 7-2 in favor of Jane Roe in Roe v. Wade, the nine members (who have long since passed) never could have guessed abortion would remain such a divisive issue nearly 50 years later. They had ruled that a woman could choose to have an abortion up until the fetus was considered viable outside the womb. Given the medical technology then available, 24 weeks or six months—known as the third trimester—was the limit,with the only exception being to save the life of the mother.
The next date of note was Valentine’s Day in 2003, when then-Senator Rick Santorum (R-Pa.) proposed the Partial Birth Abortion Ban Act, which is defined by federal law as “aborting the fetus during dilation and extraction.” It eventually passed by a 2-1 margin in both the House and Senate and was signed by George W. Bush in November that same year. In 2007, the Supreme Court upheld the law in a 5-4 decision.
Then in 2011 in Ohio, the first effort was made to pass the “Heartbeat Law” which sought to ban abortion after a fetal heartbeat was detected at six weeks. The measure went nowhere, but in 2013 it was approved in North Dakota, though quickly blocked in court. Over the next few years, efforts were made in several states but would be voted down or blocked in court.
Then in May of last year, the Heartbeat Bill had passed both the Texas House and Senate, and Governor Greg Abbott signed it into law, which took effect on September 1, which the Supreme Court then refused to block. Since then, a half dozen other states have passed similar legislation.
Soon after Abbott signed the bill in May, U.S. Representative Judy Chu (D-Calif.) proposed the Woman’s Health Protection Act, claiming that in some jurisdictions abortion was hindered by such issues as parental notification and the Heartbeat Act. The bill was the most radical ever proposed, lifting any restrictions on abortion. It passed the House on September 24, 2021, on a 218-211 mostly party-line vote, with Texas Representative Henry Cuellar being the only Democrat to join the minority.
On May 2, a leak from the Supreme Court revealed the justices were ready to overturn Roe and leave abortion laws up to the states. The next day, Senator Richard Blumenthal (D-Conn.) proposed the identical House protection bill with no restrictions to the Senate, and on May 11 the bill failed 49-51, with Rep. Joe Manchin (D-W.Va.) being the only defector from the Democratic Party line. Even so, because of the Senate filibuster rule, the measure would have taken 60 votes to pass. Kamala Harris recently said if the Senate gets just two more Democrats, they can overcome Manchin’s and Kyrsten Sinema’s objections and override the filibuster rule.
On June 24, when the Supreme Court overturned Roe in Dobbs v. Jackson’s Women’s Health, the five justices in the majority held that nothing in the Constitution guaranteed a right to abortion and the matter is left up to each state to decide. But they added that “the full power to regulate any aspect of abortion not preempted by federal law,” which would mean the Partial Birth Abortion Ban Act of 2007 would remain in place.
Now, only six states have no restrictions on abortion. The rest restrict it with a total ban after 24 weeks (the third trimester), but all include an exemption for the safety of the mother. Many of those states moved quickly because of “trigger laws” in place in case Roe was overturned.
Concerning the upcoming midterm elections, many Democrats are running attack ads. Rep. Tim Ryan (D-Ohio) was in the House and voted for the Protection Act with no restrictions, but in his Ohio Senate race he’s trying to run from that. Senator Raphael Warnock (D-Ga.), running for reelection, embraces that position. John Fetterman, running for the Senate in Pennsylvania, and Mandela Barnes, a candidate for the Senate in Wisconsin, also support abortion with no restrictions.
In the nation’s most closely watched governor’s race, Robert Francis “Beto” O’Rourke, who ran unsuccessfully for a Senate seat against Republican Ted Cruz in 2018, and made a short-lived run for president in 2020, is trying to unseat two-term Governor Greg Abbott. He’s been featuring abortion in his TV spots and has been boasting of flipping woman’s votes to achieve victory. Late last month, Austin’s Fox affiliate asked where O’Rourke stood on third-trimester abortion. His spokesman Chris Evans replied that O’Rourke “has long supported the standard set by Roe v. Wade.”
But in March 2019, at a Cleveland campaign event less than a week after O’Rourke’s presidential bid began, a woman asked: “Are you for third-trimester abortions, or are you gonna protect the lives of third-trimester babies . . . so are you for or against third-trimester abortions?”
“So the question is about abortion and reproductive rights, and my answer to you is that should be a decision a woman makes,” O’Rourke replied. “I trust her.” When he made that statement, Roe was still in effect, and he was approving third-trimester abortions without restrictions, which contradicted the Court’s 1973 ruling.
In August, just two months before he dropped out of the presidential race at a Town Hall in South Carolina, a man noted O’Rourke’s encounter in Cleveland about third-trimester abortion and asked, “I was born September 8th, 1989, and I want to know if you think on September 7, 1989, my life had no value?” O’Rourke responded that “of course, I don’t think that, and of course, I’m glad you’re here.” Then he said that his answer in Ohio remains the same. “That neither you, nor I, or the United States government should be making, but that’s a decision for the woman to make.”
“But what about my right to life?” the man asked. O’Rourke then started brusquely talking over him, “I listened to you, I heard your question. I’m answering it.” He mentioned the attack on Roe, which he insisted was the “settled law of the land.” O’Rourke finished by saying, “I don’t question the decision a woman makes. Only she knows what she knows, and I want to trust her with that. So, I appreciate the question.”
So not only was O’Rourke saying it was OK to violate Roe (which was still law); belittled the questioner saying, in effect, his mother had the right to abort him; and moreover, that partial-birth abortion, which has been illegal since 2007 (and still is) met with his approval. The next day, O’Rourke posted the video on his Twitter account and included a caption that began, “No matter how you ask the question, my answer will always be the same.”
I recently attended an O’Rourke rally in Robstown, Texas, near Corpus Christi, to ask him about his position on abortion. In a one-on-one exchange, I noted that his campaign said that he had long supported Roe v. Wade, then I noted his comments in Cleveland on third-trimester abortion. “I don’t support that,” he quickly replied. I brought up his comments in South Carolina that supported not only third-trimester abortion but partial-birth abortion. “I don’t support that,” he said. I mentioned that he posted the video on Twitter the next day to emphasize it, and that it was not only partial birth abortion but infanticide.” I don’t support that,” he said, staring at me blankly.
“You do support that,” I said. “There are videos, transcripts, and news reports, and you can’t try and hide behind Roe because you never supported it.” He continued staring blankly as I told him, “You’re in the minority because only 19 percent support third-trimester abortion.”
O’Rourke is scheduled to debate Abbott on Friday. He will likely try to blame Abbott for the Uvalde school shooting and chaos at the border, even though Biden’s policy led to that fiasco. But most importantly, he will try and attack Abbott on abortion while trying to hide his abhorrent positions.