Pro-lifers grieved last week when New York Gov. Andrew Cuomo signed a law stripping unborn babies in the state of all legal rights and erasing previous protections for mothers. New York wasn’t the first state to legalize abortion through all nine months of pregnancy, and it likely won’t be the last.
The state previously protected babies from abortion after 24 weeks of gestation. The new law allows an abortion at any time during a pregnancy if it “is necessary to protect the patient’s life or health.” (The word “patient” refers to the mother.)
The 1973 Doe v. Bolton Supreme Court decision mandated that the “health” of the mother as defined in abortion laws must encompass physical, emotional, and familial well-being.
“It really does permit abortion up until live birth,” Ingrid Duran, director of state legislation at the National Right to Life Committee, told me. “‘Health’ also has to include the mental health of the woman. So any reason whatsoever.”
The New York law stripped away myriad safeguards for the unborn. It erased protections for children born alive during an abortion, a statute dealing with the disposal of the bodies of babies born alive during an abortion that later die, and a requirement that a second attending physician be present during a late-term abortion to care for a baby potentially born alive.
Perhaps most strangely, the law removed part of a state statute stipulating that only a licensed pharmacist can sell contraceptive drugs or devices to minors under the age of 16. It also took away a physicians-only law, allowing many other types of healthcare workers to perform abortions.
The law also took away criminal penalties for anyone who kills an unborn baby by attacking the mother. It is unclear whether that section of the law applies after 24 weeks of gestation. A homicide victim is now defined as “a human being who has been born and is alive.”
Pro-life advocates in New York said enshrining the “right” to abortion in state law will make it much harder to lobby for measures that protect unborn babies.
“If you’re saying it is a fundamental right for a woman to have this abortion-on-demand policy, then it makes it essentially illegal to introduce laws and pass laws that are protective to unborn children,” Duran said.
Abortion advocates are working to establish abortion as a fundamental right at the state level because many people expect the Supreme Court eventually to revisit and possibly overturn its 1973 Roe v. Wade decision that resulted in the legalization of abortion nationwide.
In 2017, Delaware passed a law that allowed abortion through all nine months of pregnancy and removed every protection for unborn children from the state’s legal code. Rhode Island and Vermont legislators are considering officially legalizing abortion, and lawmakers in Nevada may soon consider a similar bill. An effort is underway to repeal a law that safeguards unborn babies in New Mexico.
Duran said New York’s law is likely here to stay.
Kathleen Gallagher, a lobbyist for the New York State Catholic Conference, which has fought against the bill for the past 12 years, told me she expects the same. Past court decisions paved the way for a statewide legal right to abortion, she said. She doesn’t see a basis for a legal challenge to the law, but her organization’s attorneys will be looking deeper.
“The only possible challenge I see down the road might be a religious liberty case if the state were to withhold a medical license to a pro-life doctor or deny funding to a religious hospital because they are ‘discriminating’ under this law,” Gallagher said.