Governor says bill merely codifies Roe v. Wade
BY MICHAEL RICONDA
The New York State Legislature is currently considering the Reproductive Health Act (S-348), which Democrats say would bring New York up to current federal reproductive health standards, but has also raised red flags in the minds of many Republcans and anti-abortion activists for ambiguities of language they claim would expand abortion-on-demand.
The law was most recently announced by Governor Cuomo during the beginning of the current legislative session on January 9, but has existed since 2009. State officials maintain it will function primarily as a means to protect abortion providers from prosecution for federally permissible activities.
According to Democratic Conference Deputy Press Secretary Gary Ginsburg, the law would remove abortion from the penal code and regulate it as a public health matter, bringing state law into complete agreement with the U.S. Supreme Court ruling of Roe v. Wade and revising criminal statutes which criminalized medically-necessary procedures.
“This is going to move abortion into public health and medical practice rather than under criminal statute,” Ginsburg stated in an interview with the Rockland County Times. “Because we have this antiquated law on the books, current laws do not take the health of the mother into account,” Ginsburg explained. “It will recognize that a woman’s life and health throughout the course of the pregnancy is something that should be taken into account as well.”
Critics, however, have expressed concerns about the bill’s language, which they argue could expand access to abortion. The New York State Right to Life Committee released a statement of opposition outlining its objections, among them a poor definition of fetal viability which places faith in doctors’ judgments, threats to conscience protections for healthcare providers, allowances for non-physicians to perform abortions and the prohibition of additional abortion regulations.
“The Reproductive Health Act will enshrine third-trimester abortion under New York State law,” NYS Right to Life Executive Director Lori Kehoe explained. “Why are we rolling out the red carpet for third-trimester abortions? New York is already the abortion capitol.”
Among the most significant criticisms was language which may expand access to abortions beyond the point of fetal viability so long as the procedure “is necessary to protect the pregnant female’s life or health.” Previously, abortions beyond this point were only legal to save the mother’s life, but the “health” standard has raised concerns about a broader law than the initial statute.
Kehoe argued that under Doe v. Bolton, another landmark case on abortion defining health risks abortion might remedy, the broad language would allow for abortions even when a mother is not in significant danger, an expansion over previous New York State law requiring a life-threatening condition.
“The health exception includes anything psychological, familial, the woman’s age and anything relevant to the well-being of the patient, and the abortionist and the woman get to decide those things,” Kehoe explained. “A health exception defines abortion on demand.”
In New York, a determination of 24 weeks is typically used for fetal viability unless the fetus is otherwise incapable of survival without special measures. The law also permits abortions by “a qualified, licensed healthcare practitioner,” a standard which might expand beyond physicians, leading to questions about the suitability of the healthcare personnel making decisions with women.
One of the broadest provisions is that the state cannot “deny, regulate, or restrict” abortions, which critics have argued could eliminate the possibility of laws such as parental notifications. There are, however, some narrow restrictions which might be viable in the new bill, including pre-existing laws regulating matters such as medical licensure or practice and instances when there is a “compelling state interest” to restrict access.
Additionally, the law specifically states that it will not interfere with state or federal law regarding refusal of service based on providers’ personal beliefs. However, given that both federal and New York law allow refusals by both individual providers and institutions, the substance of such conscience clauses is unlikely to be impacted.
The bill also brings New York State into compliance with federal law regarding contraception, affirming federal policy protecting “the fundamental right to choose or refuse contraception.”