As I posted earlier, Judge Alito may not be the conservative savior we were led to believe. In his dissenting opinion (of concurrence?) he is quite clear that the partial birth abortion ban in NJ was rightfully struck down since it did not address the ‘health’ of the mother. What is apparent, but not firm, is Alito could be one of those jurists who agrees ‘health’ risks need to be made allowable exceptions for legal abortions.

We all know ‘health’ is a wide open vague term which, if used correctly, could gut any restrictions on abortions. In fact, too broadly defined and it will enshrine abortion into our laws, and defined too tightly it will remove the mother/parent/doctor decision space to deal with tough issues.

We know abortions are last ditch options which can be necessary to protect the life of the mother. We know there are some tragic defects in the womb which may be cause to abort a child to avoid useless suffering. Then we have an enormous gray area of hard choices, beyond which are the abortions of convenience. It is the gray area we must be careful around so as to not repeat the mistake of Roe v Wade and try to impose a one-size-fits-all solution.

The ‘health’ canard can provide flimsy, but legal cover for abortions of convenience. And that is why Alito’s position is of serious and grave concern. This is not about Miers and how she was treated, but I can tell you honestly that if Miers had made the ‘health’ argument I would have lined up against her far beyond the anti-Miers crowd. And this is not a simple subject to jump on bandwagons with.

Right now there is a serious flaw in various ‘passable’ abortion law examples I have seen. It is an issue which is real and it strikes close to home for me. In addition to an exception for the life of the mother (and possible serious health issues), there needs to be an exception made for the life (and again, serious healh implications – e.g., brain damage) of siblings in a multiple fetus pregnancy (twins, triplets, etc).

While my wife and I would have resisted the pressure to go the route of fetal reduction with our twins, this is not a clear cut issue (here and here). It is a case by case situation which is predicated on numerous factors associated with the mother, the number of fetuses, genetics, etc. It cannot be addressed with blanket law – it has to be a decision between mother, father and doctor.

We, luckily, had no choice to make since our twins are identical and shared the placenta. But it was a risk to mother and the stronger twin to keep the pregnancy going long enough so our 1 lb 7 oz daughter could make it to a point where she could be (and was) successfully delivered. She was the smallest baby that Arlington Hospital had delivered without any real complications. She and her 3 lb, 13 oz twin sister made it to week 32 and had top APGAR scores.

But we were very, very lucky. It is a fact that multi-pregnancies are high risk across the board. One seriously disabled fetus can risk mother and siblings. The current legal examples I have seen are blind to this very real situation. A situation that is growing in number due to in vitro fertilization and other therapies which bring life and joy to childless couples.

So while a lot of people may think we know all we need to know about abortion and believe we have all the answers, I suggest we make sure we are doing the right thing with the right person. We need to make sure we have a broadly agreeable approach to the abortion issue- one that works in all scenarios. And we need to make sure we back judicial nominees who can interpret the constitution correctly so that we get legislation like Connor’s Law (defining the killing of a fetus by attacking or killing the mother as a crime), partial birth abortion bans and parental notification. I do not want a litmus test, I just don’t want a mistake either.

This is a matter of life and death, and includes tough decisions in the face of harsh medical conditions. Therefore it cannot be dealt with lightly or simplistically.