Monday, June 05, 2017

Does SB5 permit elective third-trimester abortion in Delaware?

A full-term infant. Third-trimester elective abortion is currently
disallowed in Delaware. Passage of SB5 will change that.
Folks, legislative language is annoyingly tough to suss out. It is easy to misinterpret.  If you've ever watched your legislature debate a bill, you will know how hard even to agree on what the language of the bill means.

That brings us to SB5, the late-term abortion bill up for vote in Delaware. The bill's supporters say there is no late-term abortion bill, that this is just a wee attempt to bring old fashioned language into compliance with federal law.

I don't buy it. I think the abortion industry in Delaware intends to permit elective late-term abortion in the state.  Late-term abortion is already permitted in this state if certified as necessary by either two physicians (medical necessity) or a physician and a psychiatrist (psychological necessity).

I've got no patience for trying to mount an argument. So I'll just let anybody who is interested read the following exchange between a pro-SB5 person (Rep. John Kowalko) and an anti-SB5 person (me, Rae Stabosz). Make your own judgment if you're even patient enough to look for truth. IMO there's very little search for truth in these legislative battles. But in case you want to delve a little.

I. My original post to Representative Kowalko, who favors SB5:

Rae Stabosz rstabosz@gmail.com

12:11 PM (4 hours ago)
to John.Kowalko, bcc: me
Dear John,
Paul Baumbach, you, and other Delaware House Democratic Caucus members insist that 
SB5 does nothing more than bring DE abortion law into compliance with federal law.
This is false:

1. Federal law allows states to restrict third-trimester abortions.

2. The Delaware code currently allows third-trimester abortions for cases certified medically 
or emotionally necessary. It disallows third-trimester abortions for elective reasons.

3. SB5 removes the requirement for two licensed medical doctors, or one medical doctor and
 one psychiatrist, to certify a third-trimester abortion as necessary for medical or emotional
 reasons.

4. SB5 permits elective late-term abortions in Delaware.

WHY would the Delaware Democrats want to pass a bill allowing late-term abortions for 
reasons of personal choice rather than for medical or emotional necessity?

In poll after poll,  voters say they want reasonable restrictions on abortions done in the third 
trimester of pregnancy. And US voters have long memories.

PLEASE reconsider and change your vote to NO to SB5. 

Cordially,

Rae Stabosz - Newark, DE

II . John Kowalko's reply:



Kowalko, John (LegHall)

Attachments12:56 PM (3 hours ago)
to me
​I want to share this with you.
John Kowalko

From: Deborah Hamilton <dhamilton@hamiltongoodmanpartners.com>
Sent: Saturday, May 6, 2017 2:06 PM
To: Kowalko, John (LegHall)
Cc: Lisa Goodman
Subject: SS1SB5 & late term

John,  I wanted to keep you up to date on the substitute bill that was drafted 
to provide reassurance with respect to informed consent and parental notification
 - SS1 has language that explicitly references the location of existing language that 
remains elsewhere in the Code and is unchanged (not in Title 24, Chapter 17, 
Subchapter IX).  SS1 also adds language to clarify fetal anomaly.

“Late term” abortion question:  SB 5 makes no change regarding the legality or 
practice for late term abortion procedures in Delaware that have been in place
since the Delaware law was ruled unconstitutional per U.S. Supreme Court decisions
of Roe v Wade (1973) and later again in Planned Parenthood of Southeastern 
Pennsylvania v Casey (1992). These cases both require that post-viability exceptions 
be made for the life and health of the mother. Current Delaware law has outdated 
language struck in SB5 “permanent physical deformity or retardation” 
(lines 19 & 20 in SS1) - clearly out of date replaced with updated language regarding
 exception for serious fetal anomaly with the clarifying language below.

SS1SB5

1. Inserts reference in SS1 to the existing informed consent language 
in Admin code [lines  84 & 85]
2. Inserts reference the SS1 that SB5 does not change  Tit 24, Chapter 17 
Medical Practice Act, Subchptr VIII Parental Notice of Abortion Act [lines 86 & 87]
3. Adds language in SS1 to further clarify on lines 31-34 “fetal anomalies” - added language
in SS1 displayed in red for you here. [lines 33 & 34]

b) A physician may not terminate, attempt to terminate, or assist in the termination or attempt at 
termination of a human pregnancy otherwise than by birth after viability, unless, 
in the good faith medical judgment of  the physician, the termination is necessary 
for the protection of the woman’s life or health or in the event of a fetal anomaly for which 
there is not a reasonable likelihood of the fetus’s sustained survival outside 
the uterus without extraordinary medical measures.  

III . My reply to Representative Kowalko:



Rae Stabosz rstabosz@gmail.com

3:29 PM (1 hour ago)
to John
John,

I would like to reply:

I. In the existing Delaware Code, the following language remains intact:(b)  A physician may not terminate, attempt to terminate, or assist in the termination or attempt at termination of a human pregnancy otherwise than by birth after viability, unless the termination is necessary, in the good faith medical judgment of the physician, to protect the woman�s life or health or in the event of a serious fetal anomaly.
However, this language is removed by SB5:

In no event shall any physician terminate or attempt to terminate or assist in the termination
or attempt at termination of a human pregnancy otherwise than by birth unless:
(1) Not more than 20 weeks of gestation have passed (except in the case of a termination
pursuant to paragraph (a)(1) of this section or where the fetus is dead); and
(2) Two physicians licensed by this State, 1 of whom may be the physician proposed to
perform the abortion, certify to the abortion review authority of the hospital where the procedure
is to be performed that they are of the opinion, formed in good faith, that 1 of the circumstances set
forth in subsection (a) of this section exists (except that no such certification is necessary for the circumstances set forth in paragraph (a)(3)b. of this section); where the personal physician of an
expectant mother claims that she has a mental or emotional condition, a psychiatrist licensed by
this State shall, in addition to the personal physician, certify to the abortion review authority of
the hospital where such procedure is to be performed that the physician is of the opinion, formed
in good faith, that 1 of the circumstances set forth in subsection (a) of this section exists (except
that no such certification is necessary for the circumstances set forth in paragraph (a)(3)b. of this
section); and
This means that there is no longer a requirement for two physicians (in the case of medical 
necessity) or one physician and one psychiatrist (in the case of psychological necessity) to 
certify that abortion during the third trimester is necessary.  After these clauses are struck out,
the only requirement is that a single physician--and this can be the prospective abortionist-- 
certify this necessity.

II. 
Can you tell me specifically when and where " the Delaware law was ruled unconstitutional per U.S. Supreme Court decisions of Roe v Wade (1973) and later again in Planned Parenthood of Southeastern Pennsylvania v Casey (1992)."  There may be a presumption that it could be found unconstitutional, but please cite the ruling she refers to above where DE code is explicitly found to be unconstitutional.

I believe the intention behind this bill is to insure that elective abortion is available up to and including viability in Delaware, should it happen that a future Supreme Court strikes down Roe v Wade as unconstitutional.  

There is NO NEED for this bill at this time. Third trimester abortion is already available for necessity. This bill intends only to bring elective third trimester abortion to Delaware.


^^^^^^^    So there you have it, folks. Legalese doesn't make it easy. But all you    ^^^^^^
^^^^^^^    really have to do is ask, "Why amend the code if third trimester abortion ^^^^^^
^^^^^^^    is already legal for medical necessity? Unless it is to bring elective         ^^^^^^
^^^^^^^    abortion to Delaware?                                                                                       ^^^^

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