Abortion: What the 'Health' Exemption Really Means

Using air quotes in any serious conversation is risky. Even more so during a presidential debate when the topic is abortion. So it was perplexing to many women when John McCain inserted them into a discussion on Wednesday about whether late-term-abortion bans should include exceptions for the mother's "health." Senator McCain's point was that health exceptions, which his rival Senator Barack Obama supports, have "been stretched by the pro-abortion movement in America to mean almost anything." But then, while describing what he called his opponent's "extreme pro-abortion position," McCain made air quotes when referring to the "health" of the mother.

The chorus of disapproval over the GOP candidate's tone and gesture spread quickly. MSNBC's Chris Matthews called it "a big mistake by John McCain" and chided him for belittling "the health exception with regard to abortion." And online message boards were flooded with outraged women. "As a mother who almost died during childbirth, the mockery of a woman's 'health' actually being considered was beyond insulting," wrote one woman on DCUrbanMom.com. "McCain should send an apology letter to all the women who have gone through this."

And, not surprisingly, the big pro-choice groups immediately issued press releases decrying McCain's remarks. "His air quotes around women's health signified a total lack of regard," says Ted Miller, communications director for the National Abortions Right Action League (NARAL). "When McCain had the audacity to do that, it wasn't just about the health exception, it was attacking a woman's ability to make private decisions with her doctor."

So what exactly is a "health exception" in abortion legislation, and is it the "extreme pro-abortion position" described by McCain? Obama's position is basically aligned with that of the Supreme Court. In Roe v. Wade , the court ruled that with postfetal viability--when the fetus's critical organs can sustain independent life--the state "may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother." And in Doe v. Bolton , a companion case issued the same day as Roe , the court provided further guidance on what preserving the "health of the mother" entailed. "Medical judgment may be exercised in light of all factors--physical, emotional, psychological, familial and the woman's age--relevant to the wellbeing of the patient," the court wrote. "All these factors may relate to health."

McCain is correct when he suggests that the law does not specify which conditions or complications should be included in the legal definition of what constitutes a threat to the mother's health. That decision is left up to the doctor. Pro-life groups have long complained that the Supreme Court's definition is too vague and includes too many provisions. "It allows abortion under any circumstance because the Supreme Court has defined 'health' to mean a general feeling of well being or age or familial conditions or psychological factors," says David O'Steen, president of the National Right to Life (NRLC). "Health means anything." The NRLC has attacked Obama's own characterization of his abortion position in the debate as disingenuous.

Still, state-level bans of late-term abortions reflect the Supreme Court's position supporting health exemptions. Of the 36 states where bans exist, 28 provide exceptions for the mother's health and life, four states provide for the mother's physical health and life and four for the mother's life but not health, according to statistics compiled by the Guttmacher Institute.

The Supreme Court has, though, in one instance, taken steps to limit abortion without providing a health-exception clause. In last year's Gonzalez v. Carhart the court upheld a federal ban on a specific abortion procedure--"partial-birth abortion," or intact dilation and extraction as it's known in medical terms--even if a woman can show that without it, her mental or physical health would be at risk. However, both candidates incorrectly used the terms "partial-birth abortion" and "late-term abortion" interchangeably Wednesday. Partial-birth abortion is a particular procedure that Gonzalez banned, whereas late-term abortion denotes the time when the abortion takes place. The health exemption refers to the ban on late-term abortions, not necessarily to the various methods used for abortion.

Are women stretching that physical and mental health clause "to mean almost anything," as McCain put it? Looking at the numbers, it would seem that few women--if any--are doing this. The only cases that would require a woman to get an exemption would be if she needed a late-term abortion. According to Centers for Disease Control statistics, only 1.4 percent of abortions took place after 21 weeks in 2004, the latest year for which data are available. ( Roe protects the right to abortions prior to fetal viability; a woman does not need to demonstrate a health risk if the procedure is prior to then.)

On a national level, the electorate generally supports health exceptions. Only 10 percent of Americans support a flat-out ban on abortion, without exception, according to an August poll by Time magazine; 40 percent supported making "abortion legal in specific circumstances," including "when a woman's health is endangered." Most other polls results closely mirror these findings. One recent poll asked specifically about exception for the mental health of the mother. It was conducted by Fox News last October and found that 56 percent of Americans support legal abortion if "the pregnancy puts the woman's mental health at risk."

So from a political vantage point, Obama's position on the health exception isn't particularly risky. But McCain's unfortunate air quotes may take a bite out of his support among women. "People don't believe that doctors would use 'health' as some trumped-up excuse to perform an abortion," says Celinda Lake, a pollster with Lake Research Partners, which has done polling for pro-choice groups like EMILY's List and NARAL. She says that pro-life voters "take health seriously and want to see the health of women protected."