We are pleased to present this guest editorial by the distinguished retired judge John H. Wilson
The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal “abortion mills” strengthens, rather than weakens, the State’s interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy.
Roe v. Wade, 410 US 113, 150 (1973)
New York State has changed its law, broadening the right to abortion, while removing language from the Penal Law outlawing the killing of an unborn child more than 24 weeks old. There is no denying that this alteration of New York State’s statutes represents a sharp change, and a new front in the on-going battle in this 45 year old war.
If there was any doubt that Governor Cuomo’s quick signature on the Orwellian-named “Reproductive Health Act” was to be taken as a jab at President Trump and conservatives, the NY Governor removed that doubt with his subsequent remarks; “With the signing of this bill, we are sending a clear message that whatever happens in Washington, women in New York will always have the fundamental right to control their own body…it’s always been the point where the conservatives wave the flag, they want to roll back Roe v. Wade…”
Unfortunately, Governor Cuomo, like most Americans, clearly has not read Roe v. Wade, and has no idea what that case actually held. If he had, he’d understand the radical departure his new law has taken from that intended by the US Supreme Court.
The Roe case famously found a right to abortion in the “penumbra” of the Bill of Rights, in particular the Ninth and Fourteenth Amendments to the Constitution. The decision was the culmination of a series of cases which found individual rights in marriage, procreation and contraception, none of which is mentioned anywhere in the US Constitution. However, as the quote published at the beginning of this article makes clear, these rights are not unbridled and unrestrained freedoms. In fact, when it comes to issues involving the health, safety and welfare of its citizens, the Supreme Court has consistently ruled that the state has an absolute right to regulate the exercise of these rights.
New York has done nothing less than abdicate its responsibility to regulate Abortions, and a review of the language of the “Reproductive Health Act” (RHA) will support this interpretation.
The US Supreme Court assumed that an abortion would be performed by a physician, in a medical facility, with “adequate provision for any complication or emergency that might arise.” Yet, Section 2599-bb of the RHA now allows “a health care practitioner licensed, certified, or authorized under title eight of the education law, acting within his or her lawful scope of practice” to perform the procedure. Under Title 8 of the Education law, this includes Physician Assistants, Specialist Assistants, Nurses, Midwifes, and may include such medical professionals as Pharmacists (who may be called upon to administer a drug that would cause an abortion to occur). By limiting the law to health care practitioners acting “within his or her lawful scope of practice,” one can only assume Dentists, Optomologists, Chiropractors and Veterinarians are barred from performing abortions under this new law.
It remains unclear what “adequate provision for any complication or emergency” a patient can find in the office of a health care practitioner who is not a physician.
Further, under the RHA, the unspecified “health care provider” may “perform an abortion when, according to the practitioner’s reasonable and good faith professional judgment based on the facts of the patient’s case: the patient is within twenty-four weeks from the commencement of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health.”
None viagra 25mg http://respitecaresa.org/event/big-give-2018/ of these products have ever been though tests to prove they work. This drug has proven to be the respitecaresa.org sildenafil from india best for natural male enhancement purposes. The doctor can help to online levitra canada determine the cause and treatment of the impotence. It helps to balance sexual cialis price hormones in women and also reduces hunger pangs.The “or” in this language is crucial – under the new law, an abortion can occur within 24 weeks of conception regardless of whether the fetus is viable, and whether or not the abortion is necessary to save the mother’s life or health. After 24 weeks, in what was always called the “third trimester,” there must be an absence of “fetal viability” OR (that crucial word again) the abortion protects the mother’s “life” OR “health.”
“Fetal viability” is defined as “the ability of a fetus to survive outside of the womb.” Between 20 and 23 weeks, with extraordinary measures, babies have been able to survive outside the womb. Thus, under the RHA, an “absence of fetal viability” after 24 weeks could only mean the fetus is deceased.
The last clause is the most important. We understand the necessity of protecting the life of the mother. But what about her health? Does this broad term include her mental health?
Herein lies the basis for the belief that the RHA provides for unlimited abortions up until the moment of birth – how broadly will a “health care provider” define the “health” of an expectant mother in determining the necessity for an abortion after 24 weeks?
More tragic, however, than this broadening of the law, is the evisceration of the Penal Law. Under the RHA, the definition of Homicide no longer includes causing the death of an “unborn child with which a female has been pregnant for more than twenty-four weeks.”
Rosa Furneaux of Mother Jones celebrates this change in the law, believing it to be a effort to protect women who seek self abortion medication. However, in fact, the more common use for this statute was to prosecute an individual who assaults a pregnant woman, and causes her to lose a viable baby she intended to carry to term.
In 2015, in Colorado, a woman was arrested for stabbing a pregnant woman and removing her baby from her womb. The child did not survive, but the mother did. If this had happened in New York in 2018, the assailant could be prosecuted for Murder. However, in 2019, the charges would be Attempted Murder and/or Assault in the First Degree. Both obviously carry lesser penalties than Murder.
In 2016, Torey Branch assaulted his then-pregnant girlfriend, Mia Jones, by repeatedly punching her in the stomach. “The ambush happened after Jones repeatedly refused Branch’s attempts to schedule an abortion for her and then she told him she was going to tell his girlfriend about the baby.”
Was this really the change the New York legislature was hoping for? Or were they so intent on providing for legal late term abortions while spitting in the eyes of President Trump and conservatives, that they forgot about providing for the prosecution of a particularly heinous crime?
Illustration: Pixabay