Analysis: Joe Biden and Kamala Harris Support Abortion up to Birth

by James D. Agresti

 

Overview

In the face of overwhelming facts to the contrary, five prominent “fact checkers” are claiming that Joe Biden and Kamala Harris don’t support legalizing abortion up until birth. To reach this false conclusion, these individuals repeatedly use a propaganda technique condemned by George Orwell, the author of 1984.

The resulting misinformation shrouds the policies of Biden and Harris, who are planning to legalize abortions of humans who are capable of living outside the womb. This stance is opposed by about 80% of Americans and involves ending the lives of pre-birth humans who have passed the following milestones:

• By 12 weeks, “electrical activity of the nervous system is discernible” and “attempts to suckle” are observed “in utero and in aborted fetuses.”

– Encyclopedia of Human Biology

• By 14 weeks, “limb movements … become coordinated.”

– Before We Are Born: Essentials of Embryology and Birth Defects

• By 14 weeks, they exhibit conscious “motor planning” and “social behavior.”

– PLoS ONE

• By 14 to 22 weeks, “a physiological fetal reaction to painful stimuli” occurs.

– Fetal Diagnosis and Therapy

• By 18 weeks, pain sensory receptors spread to “all cutaneous [skin] and mucous surfaces,” and the cerebral cortex has the same number of nerve cells as a full-grown adult.

– New England Journal of Medicine

• By 20 weeks, he or she “now sleeps and wakes and hears sounds.”

– American Medical Association Complete Medical Encyclopedia

• By 20 weeks, pre-birth humans look like this:

Conflicting Claims

At the 2020 Republican National Convention, keynote speakers and others stated:

• “Joe Biden supports taxpayer funding of abortion right up to the moment of birth.”
  – Vice-President Mike Pence
• “Joe Biden claims he has empathy for the vulnerable—yet the party he leads supports the extreme late-term abortion of defenseless babies right up to the moment of birth.”
  – President Donald Trump
• “President Trump will stand up against Biden-Harris, who are the most anti-life presidential ticket ever, even supporting the horrors of late-term abortion and infanticide.”
  – Deirdre Byrne, a Catholic nun, retired surgeon, and retired Army officer
• “If you watched the DNC last week,” their “argument for Joe Biden boiled down to the fact that they think he’s a nice guy,” but policies that “allow abortion up until the point of birth are not nice.”
  – Ronna McDaniel, Chair of the Republican National Committee

Taking issue with those statements, various fact checkers reported:

• “Biden does not support ‘late-term abortion and infanticide’.”
  – Glenn Kessler, Salvador Rizzo, and Meg Kelly of the Washington Post Fact Checker
• Trump “mischaracterizes the Democratic Party’s stance on abortion and Biden’s position.”

– Unnamed staff at PolitiFact

• “Biden has not explicitly expressed support for late-term abortions.”
  – Asma Khalid and Sam Gringlas of NPR
• “Democrats generally back abortion rights, but Biden isn’t pushing to allow abortions for any reason up until birth.”
  – Eugene Kiely, Lori Robertson, Robert Farley, D’Angelo Gore, Jessica McDonald, Brooks Jackson and Rem Rieder of FactCheck.org
• “Democrats support abortion rights, but that does not mean they call for women to have an unfettered right to terminate pregnancies up until the point of birth.”
  – Sheryl Gay Stolberg of the New York Times

In support of those claims, these fact checks all use a mix of similar half-truths that lead readers to believe the polar opposite of reality.

The Implications of Roe v. Wade

Biden’s campaign website says that he “will work to codify Roe v. Wade,” the Supreme Court’s 1973 ruling that struck down the laws of 30 states that prohibited abortions except to save the life of the mother. This means he will try to pass federal laws that enforce the provisions of Roe instead of relying upon judicial dictates.

Biden’s website also says that he will “appoint U.S. Supreme Court justices and federal judges” who will uphold Roe. The 2020 Democratic Party Platform embraces the same position. 

In and of themselves, these stances constitute support for abortion up till birth because Roe v. Wade:

• mandates that abortion be legal after “viability” when needed to protect “the health of the mother.” Viability, or the stage of development where humans are capable of living outside the womb with medical care, begins around 22 weeks gestation and extends to birth.
• defines the word “health” so broadly that it includes practically anything. Some illuminating examples of what Roe considers harmful to health include the work of “child care,” the “stigma of unwed motherhood,” and “the distress, for all concerned, associated with the unwanted child.”
• gives the power to determine what comprises a health risk to anyone who is licensed to perform abortions. It does this by mandating that Roe “be read together” with Doe v. Bolton, a companion case that the Supreme Court issued on the same day. In Doe, the Court ruled that all abortion providers have full authority to decide if an abortion is necessary to protect “health” based solely upon their “best clinical judgment.”

The implications of Roe were made clear by late-term abortionist Warren Hern, author of “the nation’s most widely used textbook on abortion standards and procedures.” He stated, “I will certify that any pregnancy is a threat to a woman’s life and could cause grievous injury to her physical health.”

In direct contradiction to the actual words of Roe, all of these fact checkers allege that supporting Roe does not mean supporting late-term abortions. PolitiFact, for example, writes that the Democratic Party platform “does not address late-term abortion” and that Biden’s goal to codify Roe “would generally limit abortions to the first 20 to 24 weeks of gestation.”

PolitiFact then casually adds that Roe and “related precedents” require states to allow abortions after viability “to preserve the life or health of the mother.” This is a quintessential half-truth because it fails to reveal that “health,” as defined by Roe, means virtually anything that any abortionist says it means. 

The Women’s Health Protection Act

Further proof that Democrats plan to legalize abortions up till birth is found in the text of the Women’s Health Protection Act, which is actively cosponsored by 44 of 47 Democrats in the U.S. Senate and 217 of 235 Democrats in the U.S. House of Representatives. 

Both the House bill and the Senate bill, which is cosponsored by Kamala Harris:

• would eliminate all “limitations or requirements” on “abortion after fetal viability” if the “treating health care provider” decides that “continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.” 
• defines a “health care provider” to include “any entity or individual” who is “licensed or certified” to perform “abortion services.”
• would overturn more than 400 restrictions on abortion that have been passed by state and local governments since 2010.

The Washington Post Fact Checker is aware of the Women’s Health Protection Act but claims that it would merely prohibit states “from banning abortion before the fetus reaches viability.” This description is at flagrant odds with the text of the bill, which again, bans states from prohibiting “abortion after fetal viability” when any licensed abortionist says there is “a risk” to the “health” of the mother.

State Laws

A third line of evidence that Biden, Harris, and other Democrats are intent on legalizing abortion after viability is the enactment of state laws that do just that, along with promises to nullify state laws that limit late-term abortions.

For example, New York governor Andrew Cuomo signed a law in 2019 that repealed a section of the state’s criminal code which had banned third-trimester abortions except when necessary to protect a woman’s life. In its place, the new law allows such abortions “at any time when necessary to protect a patient’s life or health.”

As a NY State agency explains, the purpose of the bill was to bring the state’s law “in line with” with Roe v. Wade. States such as Rhode Island and Illinois have recently enacted similar laws.

Biden is also on board with this agenda, as his campaign website says that his “Justice Department will do everything in its power to stop the rash of state laws that so blatantly violate Roe v. Wade.”

While she was running for president, Kamala Harris’ campaign website vowed that she “will require, for the first time, that states and localities with a history of violating Roe v. Wade obtain approval from her Department of Justice before any abortion law or practice can take effect.”

Given that Roe has not been overturned, and the Supreme Court “reaffirmed” its “essential holding” in the case of Planned Parenthood v. Casey, how can states defy Roe? A 2011 New York Times commentary by Yale Law School fellow Emily Bazelon explains that this is the norm because abortion advocates have decided not to challenge such laws in court.

She writes that “abortion rights groups” have “been wise to avoid” suing states that prohibit “abortion after 20 or 22 weeks of pregnancy” because:

• 72% of the public favors “making late-term abortion illegal,” and it is “best” not to tread on this “dangerous political ground.”
• the current members of the Supreme Court might overturn Roe if such a case came before them.
• “recent polls” show “that more Americans now identify as ‘pro-life’.”

Likewise, a 2018 Gallup survey found that 65% of U.S. adults favor making abortion illegal in the “second three months of pregnancy,” and 81% favor making it illegal in the “last three months of pregnancy.”

Yet, NPR misleads their audience to believe the converse by reporting that “a majority of Americans (61%) say abortion should be legal in all or most cases.” NPR provides no evidence or link to support his claim.

Downplaying the Number of Late-Term Abortions

Bazelon’s commentary, which provides strategic advice for abortion advocates, stresses that “abortion foes … reduced popular support” for abortion by “making late-term abortion seem as if it were the norm rather than the exception. Yet only 1.5 percent of abortions occur late in the second trimester.” 

Four of the five fact checks present that same narrative. PolitiFact, for instance, writes that “late-term abortions are very rare, about 1%.” In the context of whether such abortions should be legal, this is a brazen half-truth because it fails to mention that the total number of abortions is so enormous that this small percentage amounts to thousands of late-term abortions per year. 

A 2013 paper in the journal Perspectives on Sexual and Reproductive Health estimates that “more than 15,000” abortions are performed each year in the U.S. “at 21 weeks or later.” The authors note that this amounts to about 1% of all abortions, “but given an estimated 1.21 million abortions in the United States annually,” “later abortions” add up to “a substantial number of abortions.”

Hence, these supposedly “very rare” late-term abortions are more numerous than incidents that the media portrays as common occurrences in the United States. Examples include:

• the 12,000 murders per year committed with guns.
• the 5,000 Covid-19-related deaths of people under the age of 45.
• the 50 people per year who are executed under the death penalty. 
• the 7 police officers per year who are arrested for murder or manslaughter in an on-duty shooting, and the 1–2 officers who are ultimately convicted of such crimes.

Pro-Abortion Rhetoric

Beyond the common arguments of the other fact checkers, the Washington Post adds a unique one to the mix. “Experts told us,” say the Post’s fact checkers, that just because “some Democrats support abortion rights,” this “doesn’t mean they support ‘extreme late-term abortions’.” As proof of this, they name one “expert,” who they describe as “Katie L. Watson, a professor at Northwestern University’s Feinberg School of Medicine.”

That is yet another half-truth because Watson’s official bio reveals that she is not a doctor but “a lawyer” and “bioethicist” who “is currently serving terms on the Board of the National Abortion Federation (NAF, the professional organization of independent abortion clinics) and on the National Medical Council of the Planned Parenthood Federation of America.”

After whitewashing Watson’s bio, the Post quotes her stating, “That’s like saying everyone who ‘supports’ the Second Amendment ‘supports’ school shootings.” This analogy is inapt because Second Amendment advocates don’t support legalizing school shootings, but abortion advocates do support legalizing abortions.

This follows another attempt by the Post’s Fact Checker to place a veneer of factuality on a pro-abortion talking point. In a fact check published earlier this year, the Post argued that “supporting abortion rights is not the same as supporting abortions.” This is akin to saying that “supporting the legalization of rape is not the same as supporting rape.” Or “supporting the legalization of murder is not the same as supporting murder.” Or “supporting the legalization of slavery is not the same as supporting slavery.”

All of the examples above materially differ from saying something like “supporting drug legalization is not the same as supporting drugs.” This is because abortion, rape, slavery, and murder all involve actions that people take against other humans. In contrast, taking drugs is something that people do to themselves.

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James D. Agresti is the president of Just Facts, a think tank dedicated to publishing rigorously documented facts about public policy issues.