Democratic Senators Wendy Davis of Fort Worth and Kirk Watson of Austin lead a rally at a protest before the start of a special session of the Legislature in Austin, Texas, July 1, 2013. (Reuters/Mike Stone)

Mea culpa: I was unfair to David Frum in my recent column on Texas, Europe and abortion. Even after I amended the online version to clarify that he is pro-choice (unlike the other two conservatives I discuss, Ross Douthat and Michael Gerson), a reader could easily assume he was anti-choice, since I do quote him in that context. I think what misled me was that I took Frum to be addressing pro-choicers in his blog post about Germany’s “abortion compromise”; what stuck out for me were the restrictions and over-simplifications. But actually, he is addressing anti-choicers, who want to ban abortion entirely. To them, he probably sounds like he is running for head of Planned Parenthood.

* * *

No apologies necessary to Ross Douthat, though, who in a recent blog post addressed my column along with a similarly critical one from Scott Lemieux at prospect.org.

Douthat claims I’m wrong about the sweep of the Texas law banning abortion after twenty weeks:

It does include exceptions related to maternal health and fetal anomalies: Its post-viability ban does not apply (and I quote) “to abortions that are necessary to avert the death or substantial and irreversible physical impairment of a major bodily function of the pregnant woman or abortions that are performed on unborn children with severe fetal abnormalities.”

Oh, come on. Obviously, there’s a life exception. It would probably be unconstitutional to ban abortion to avert the actual death of the woman. Even Justice Rehnquist, in his dissent from Roe, acknowledged as much, and even when abortion was illegal in the United States (as in the Texas law Roe challenged), there was always an exception for “therapeutic” abortion to preserve the woman’s life. We aren’t living in Ireland, after all—and even in Ireland, the horrible, completely avoidable death of Savita Halappanavar has forced passage of a law permitting abortion to save a woman’s life. The problem is how these exceptions are defined, and how they are enacted in practice.

What is a risk of death? An amicus curiae brief in Roe filed by the American College of Obstetricians and Gynecologists and other professional medical associations points out that depending on how that language is construed, and who is doing the construing, a woman suffering from a serious illness—cancer, diabetes, heart disease—may be denied an abortion although pregnancy and childbirth may worsen her condition and she may ultimately die from it, because she is not in immediate risk of death. Do we want doctors looking over their shoulders, worrying that attempting to extend their patient’s life is going to land them before a medical board—or a judge? (Violating the Texas law is, after all, a crime.)

The physical impairment provision raises the same issues. What are “serious,” “substantial” and “irreversible”? What is a “major bodily function”? Medicine isn’t physics: how can a doctor know in advance what situations will count as sufficiently grave? Besides, if a pregnancy turns problematic, shouldn’t the woman herself get a vote in how much risk of suffering and disability she should bear?

As for fetal anomaly, you have to read the fine print: in subchapter M, section 285, this is defined as “a life threatening physical condition that, in reasonable medical judgment, regardless of the provision of life saving medical treatment, is incompatible with life outside the womb.” That covers conditions that kill upon birth or soon after, like anencephaly or organs growing outside the body—but what about fatal conditions that kill later, like Tay-Sachs disease, where children can live, in great suffering, for a few years before dying? And what about serious anomalies that are not necessarily “incompatible with life” but which impose tremendous suffering on the child as well as on parents and families—and which, let’s not forget, the state of Texas is not going to do much to help them deal with.

The Texas law is very strict. It does not even have an exception for mental health or risk of suicide (even the new Irish law includes threats of suicide in its life exception). It disregards the pregnant woman’s own judgment about how much damage to her health is too much. The law is an invitation to second-guess doctors and patients in situations that are fraught with complexity, and to make doctors afraid to trust their judgment and expertise. I just don’t think the Texas State legislature is the proper place for these very intimate major medical decisions to be made.

On his blog, Douthat attributes to me arguments I did not make. I never asserted that abortion restrictions don’t reduce the number of abortions. Obviously, if you make it really hard and expensive and even criminal to do something, it’s going to be more of a challenge to do it. It is amazing how many women manage to overcome the obstacles to obtaining an abortion, but if the difficulties are too great, some women will not be able to surmount them. In Ireland, for example, a woman has to go to another country. For some women, this is not difficult—Ryanair flights are cheap and you can go to the UK and come back the same day. (In fact, logistically, it is probably easier for a Dubliner to get to London than for a woman in Laredo to get to an out-of-state clinic that performs abortions post–twenty weeks.) For other women, it’s very hard: they are low-income, rural, have to find childcare, take time off from work, deal with hostile families, the need for secrecy and so on. What happens to them?

Mara Clarke helps run the Abortion Support Network, which raises funds to help low-income Irish women go to the UK. She writes,

Abortion Support Network has gotten calls from a raped teen who drank floor cleaner when she couldn’t raise the funds to travel for an abortion and a mother of four who was considering crashing her car to induce a miscarriage… Right now I have a woman here who has been trying to come over since MAY and is now over 20 weeks pregnant who told me if this hadn’t happened—our helping her—she would have “done something to myself to get rid of it.” This is a young woman with a young child, who wants more children, just not now.

I should also mention that the real number of Irish women having abortions is surely higher than Douthat thinks. Women who go to the UK don’t always identify themselves with an Irish address or their real names, some go to the Netherlands or Belgium instead and some, using various clandestine routes, buy the miscarriage-inducing drug misoprostol over the Internet.

In any case, Douthat seems strangely nonchalant about a setup, in Ireland or in Texas, in which middle-class women who want abortions go elsewhere to get them, while trapping poor women and causing all sorts of difficulties and problems to many women, whether they manage to terminate their pregnancies or give up and have a baby. As with many opponents of legal abortion, the letter of the law seems to matter more to him than the law’s real effects.

Finally, Douthat thinks he makes a crushing point when he asserts that Irish women have “advanced” without abortion rights, noting that they do well on some crude international measurements of women’s progress. On maternity care, education and life expectancy, for example, Ireland is very good. Irish women have paid maternity leave and maternity benefits, and the law guarantees them the right to return to their jobs. Ireland is, moreover, a much more egalitarian society than the United States, with narrower extremes of wealth and poverty. That is all good.

I‘m not sure Irish women are doing all that well, though, if you look more closely. Only 15 percent of the Oireachtas (parliament) is female (across Europe it’s 25 percent), only 7 percent of reported rapes result in a conviction and domestic violence is widespread. The culture, if one can generalize about such a thing, is quite masculinist, as many Irish women writers have bitterly noted. Newsweek analyzed the status of women in 165 countries using a panoply of criteria, not just cherry-picking a few, and ranked Ireland at twenty-two, between Albania and China. (The United States comes in at eighth place; the Scandinavian nations are tops.)

Of course it is a good thing that the Irish social-welfare state exists. To the extent that women have abortions for economic reasons, generous social provisions for families, mothers and children may indeed lower the abortion rate. (Although not necessarily—Sweden has ample social provisions, a high abortion rate and, for Europe, a high fertility rate. As I keep saying, it’s complicated!) That does not prove, though, that plenty of women don’t suffer when abortion is banned, that banning abortion doesn’t limit women’s advancement (with legal abortion, maybe Ireland would be up there with Scandinavia). Nor does it prove that banning abortion has no affect on the status of women generally, whether or not they want to have an abortion.

Not everyone needs or uses all their human rights: if the United States were to ban, say, being a Jehovah’s Witness, very few people would be affected, and yet everyone’s rights would be limited. The same is true of abortion rights. Denying them makes a powerful statement about the limits of freedom and self-determination for all women (and no men), and it also sends a message about what can happen to women (but not men) who get out of line. Not many women were consigned to slave labor in the Magdalene Laundries, after all, even among those girls and women who fell afoul of strict Irish Catholic sexual morality. But the message to all women was pretty clear.

I‘m looking forward, though, to Ross Douthat’s embrace of generous health and welfare provisions for women and children in Texas.

Meanwhile, you can donate to the Abortion Support Network here.

Why are GOP leaders trying to ban abortions after twenty weeks?