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New York Passes Abortion Law by Kevin Diehl

Updated: May 15, 2020

This past November the federal midterm elections understandably garnered most of the media coverage. But there was also a seismic shift in New York politics: Democrats took back control of the state senate after a decade of Republican control.

With that victory, Democrats in New York now control both chambers of the legislature and the governor’s office. And the new Democrat majority wasted no time flexing their legislative muscle: on January 22, 2019 – the 46th anniversary of Roe v. Wade – the New York Senate passed the Reproductive Health Care Act. Governor Andrew Cuomo signed the bill into law later that day.

With passage of the law, legislators who carried the measure across the finish line erupted in celebration.

As is so often the case, the name of this legislation doesn’t begin to describe what it really does. The Reproductive Health Care Act (“RHA”) sounds pretty benign, but let’s take a look at what it does.

Prior to passage of the RHA, the New York criminal code made it a felony to perform late-term abortions – that is, after 24 weeks into a pregnancy. Abortions after 24 weeks were permitted, but only if a physician determined that a woman’s life was at risk. The new law removes that restriction. Now, after 24 weeks, a woman may decide to abort if it’s determined that there is an “absence of fetal viability,” or that the procedure is “necessary to protect the patient’s life or health.”

Who makes that determination? That’s one of the big changes. It can be made by a “health care practitioner licensed, certified, or authorized” under state law, “acting within his or her lawful scope of practice.” In other words, it’s no longer necessary to involve a physician in the decision. Rather, nurse practitioners, physician assistants or midwifes may perform the abortion.

The other big change is that abortion is allowed after 24 weeks if it is “necessary to protect the patient’s life or health.” The “health” part is new, but the RHA doesn’t define “health.” It relies instead on the definition of “health” from a United States Supreme Court case that was also decided in 1973 called Doe v. Walton. That case – a sort of companion to Roe v. Wade – held that “medical judgment may be exercised in the light of all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment.”

Thus, the term “health” as used in the RHA is very broad. It goes well beyond whether the woman’s life is at risk, and allows the “licensed practitioners” wide discretion to proceed with an abortion after 24 weeks.

Before passage of the RHA, New York law required that abortions after 12 weeks be performed in a hospital. The RHA repealed that. The old law also required that an additional physician be present for any abortion performed after 20 weeks in case of “any live birth that is the result of the abortion.” Under the old law, a baby born in that scenario – a so-called “botched” abortion – would be provided “immediate legal protection under the law of New York.”

That no longer applies.

This bears repeating – under the new law, “any live birth that is the result of the abortion” will no longer be provided “immediate legal protection under the law of New York.” Thus, if a baby survives an abortion, the child is no longer recognized as a person nor protected by New York law.

Add it all up and what it means is that New York now allows late-term abortions and, frankly, infanticide for a wide range of reasons, including emotional and psychological factors.

In signing the law, Governor Cuomo said, “I promised that we would enact this critical legislation within the first 30 days of the new session – and we got it done.” He claimed swift action was necessary because of the current makeup of the Supreme Court and the federal government.

But New York Democrats have been trying since 2007 to pass this legislation. It was only the Republican-controlled state senate that stalled their attempts. During most of that stretch we had a pro-choice president and a Supreme Court disinclined to revisit Roe v. Wade. So to suggest there was urgency because of the current federal government isn’t a persuasive argument.

Governor Cuomo also said that he’d like to put an abortion amendment in the New York State Constitution as a safeguard against the Supreme Court overturning Roe v. Wade. But that argument makes little sense.

If the Supreme Court were to overturn Roe, it’s likely it would be in one of two ways. It could reverse the 1973 ruling and return the issue to the individual states. At that point, states could establish their own abortion laws. Or the Supreme Court could determine that there is no right to an abortion at all and make it illegal across the entire country. In that instance, no law or amendment that New York passes would make any difference. So Governor Cuomo’s ruminations about the threat of federal government action ring hollow.

In essence, the New York Democrats simply wanted to legalize late-term abortion.

The abortion issue has divided us for a very long time. Those who believe that life begins at conception have always viewed abortion as murder. Abortion rights advocates view the fetus as a choice. There’s not a lot of common ground between those two points of view. But no matter where you fall on that scale – even if you don’t believe life begins at conception – it’s difficult to see how an abortion performed late in the pregnancy – indeed, up to the point of delivery – is anything but the taking of a life.

Not so long ago, pro-choice advocates maintained that all they wanted was that abortions be “safe, legal and rare.” That no longer seems to be the case. In fact, Governor Cuomo was so elated with the passage of New York’s abortion law that he directed the spire of One World Trade Center to be lit up in pink to “shine a bright light forward for the rest of the nation to follow.”

Someone pointed out the irony in that action: that same building also houses a memorial that recognizes eleven preborn children that were killed in the 9/11 attacks.

Cardinal Timothy Dolan, the Archbishop of New York, was quick to criticize the new law. “It’s so important,” he said, “for us to insist that the protection of the baby in the womb is a civil rights issue. It’s not a Catholic issue. It’s not a religious issue. It is a civil rights issue.”

It’s been a long time since Ronald Reagan was our president. Then, as now, abortion was a divisive issue in America, and Reagan was not silent on it. He had a special talent for drilling down to the heart of an issue with charm, humor and pinpoint accuracy. So I’ll reserve the last word for him.

“I’ve noticed,” President Reagan once observed, “that everyone who is for abortion has already been born.”

by Kevin Diehl


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