A mom chose the baby's life over hers. How does this fit into the abortion debate?
A 35-year-old woman consulted me for a breast reconstruction after a mastectomy for breast cancer. She was then disease-free several years after her cancer treatment. Her oncologist and I thought it was a reasonable request, and I reconstructed her absent breast. I was happy to hear, about a year later, that she was pregnant. At about six months into her pregnancy, however, she was diagnosed with recurrent, rapidly progressing cancer. She faced a decision: abort the child and start radiation and chemotherapy immediately, as it would give her the best chance for a longer survival or carry the baby to term without the cancer treatment that would harm and likely kill the baby.
She chose life for her baby. During the last part of her pregnancy, without the treatment, her cancer went wild from the increased hormones of pregnancy. She delivered a normal baby and died within weeks. I sometimes wonder if that baby, now a grown adult, thinks much of the mother he never knew but who sacrificed her life for him.
Today, despite the diversity of state laws on abortion, every state would allow my patient to abort her baby because living longer meant receiving chemotherapy as soon as possible. The federal government would even pay for a patient with a similar condition who is on Medicaid. For a long time, the federal government has allowed tax dollars for abortion in cases of rape, incest and life of the mother, the so-called Hyde Amendment. Nearly all states do the same, and many add “health of the mother” to the list of state exceptions to abortion bans.
In September last year, before the midterm elections, Sen. Lindsey Graham, a South Carolina Republican, proposed a national ban on abortion after 15 weeks, with the usual rape, incest, and life of the pregnant woman exceptions. It also included an exception for “health” but limited this to a “substantial and irreversibly physical impairment of a major bodily function.”
A mental health crisis would not qualify, as any health threat would have to be physical. I suspect this provision was included to prevent a woman from having an abortion for economic reasons and claiming severe mental stress because of that worry.
A few days ago, during the GOP presidential debate, most of the candidates favored a similar national ban at 15 weeks with exceptions. Conversely, in July 2022, the Democratic-controlled House of Representatives passed a bill on a party-line vote that would prevent abortion bans earlier than 24 weeks when a fetus can survive outside the uterus. The bill had exceptions for abortion after fetal viability when a doctor determined the “life” or “health, including mental health," of the mother is at risk.
There were other provisions that went past just restoring Roe v. Wade. The Democrats' bill — the Women’s Health Protection Act — put doctors at risk if they rejected abortions for religious reasons. It conflicted with Supreme Court decisions that upheld state laws requiring informed consent, waiting periods and parental notification as well as laws barring gender preference abortions and significantly eased post-viability abortions.
On May 15, 2022, the Register published my guest essay predicting the leaked Dobbs Supreme Court opinion draft would become law of the land arguing that the abortion issue should be returned to the states for several constitutional reasons. Similarly, if either the Democrats’ Women’s Health Protection Act or Graham’s abortion bill is passed, either would stand on shaky constitutional grounds. Congress is simply not constitutionally authorized to prescribe a national abortion law.
First, the federal government is a government of enumerated, limited powers, with the 10th Amendment mandating that all powers not enumerated and delegated to the federal government are reserved to the states. Congress can regulate interstate commerce, and this clause has expanded federal jurisdiction in many areas. However, in the past 20 or so years, the Supreme Court has held that the Commerce Clause covers only activities that are economic and have a significant effect on interstate markets. For example, in United States v. Lopez, a federal prohibition on possession of guns near schools was ruled unconstitutional because this is not economic in any sense. In the 2012 Obamacare case, five justices agreed that the individual mandate to purchase health care exceeded Congress’ power under the Commerce Clause.
Abortion is not an interstate economic issue.
The Dobbs decision overturning Roe v. Wade has unequivocally determined that there is no constitutional right to abortion under the 14th Amendment. Furthermore, Congress does not have the right to change the court's definition as it applies to the states. In City of Boerne v. Flores, the court held that Congress’ authority under the 14th Amendment is “corrective or preventive, not definitional.” Thus, Congress can’t create a right to abortion or take it away and compel states to enforce it.
The Congressional Research Service thoroughly discussed these limits in a July 2022 article on “Congressional Authority to Regulate Abortion.” These points would be used by the losing side in challenging any abortion federal law. It is likely that the same five justices who overruled Roe would overrule both the Women’s Health Protection Act expanding abortion and any GOP bill limiting abortion. The debate on abortion during the coming elections will be political and intense but unlikely to eventually change current states’ abortion laws by federal mandate.
It was so sad that my patient had to make the decision between her life or her baby’s. She knew her death would leave a huge hole in her family, but she made her choice with selfless love.
Dr. Greg Ganske is a retired plastic surgeon who cared for trauma victims, patients with cancer, farmers with hand injuries, and children with birth defects. He served Iowa in the United States Congress from 1995 to 2003.
This article originally appeared on Des Moines Register: A mom chose the baby's life over hers. What's it mean for abortion?
