The word of the LORD came to me, saying: Before I formed you in the womb I knew you, before you were born I dedicated you, a prophet to the nations I appointed you.”
Each of us is created by God….from that first moment we have a personal relationship with the Lord. God knows us in a most personal way and fashions and creates each of us for a very unique and important purpose. Imagine…you were made and dedicated by God for some wonderful purpose…uniquely, wonderfully created by God.
The reading, from the Prophet Jeremiah, should also have very special meaning to all of us as we reflect on the recent law passed in the State of New York against life. It significantly increased the time/age when a life in a mother’s womb can be attacked and aborted. This massive expansion of ‘rights’ is truly an attack on human life. It’s important for all of us to take the time to learn more so we can each make decisions to speak out – to engage – to act for the protection of life.
Jeremiah reminds us that each life is created for a unique purpose by God. God knows us before we were formed in the womb. Life is a most precious gift from God. As God’s people we need to protect those who are voiceless. We need to stand for life.
Articles Regarding the new law passed in the State of New York:
Words are insufficient to describe the profound sadness we feel at the contemplated passage of New York State’s new proposed abortion policy. We mourn the unborn infants who will lose their lives, and the many mothers and fathers who will suffer remorse and heartbreak as a result.
The so-called “Reproductive Health Act” will expand our state’s already radically permissive law, by empowering more health practitioners to provide abortion and removing all state restrictions on late-term procedures. With an abortion rate that is already double the national average, New York law is moving in the wrong direction.
We renew our pledge to offer the resources and services of our charitable agencies and health services to any woman experiencing an unplanned pregnancy, to support her in bearing her infant, raising her family or placing her child for adoption. There are life-affirming choices available, and we aim to make them more widely known and accessible.
Our Governor and legislative leaders hail this new abortion law as progress. This is not progress. Progress will be achieved when our laws and our culture once again value and respect each unrepeatable gift of human life, from the first moment of creation to natural death. Would that not make us truly the most enlightened and progressive state in the nation?
Timothy Cardinal Dolan
Archbishop of New York
Most Rev. Edward B. Scharfenberger
Bishop of Albany
Most Rev. Nicholas DiMarzio
Bishop of Brooklyn
Most Rev. Richard J. Malone
Bishop of Buffalo
Most Rev. Terry R. LaValley
Bishop of Ogdensburg
Most Rev. Salvatore R. Matano
Bishop of Rochester
Most Rev. John O. Barres
Bishop of Rockville Centre
Most Rev. Robert J. Cunningham
Bishop of Syracuse
And the Auxiliary and Retired Bishops of New York State
Last week, on the anniversary of the Roe v. Wade decision, New York state enacted a new abortion law, called the Reproductive Health Act. A long-term goal of pro-choice advocates, the law was passed by the newly elected Democratic majority in the state Senate and signed by Democratic Governor Andrew Cuomo. The governor even ordered that One World Trade Center in New York City and several other New York state landmarks be lit in pink to celebrate the legislative victory.
While pro-choice advocates were celebrating, the pro-life movement described the R.H.A. as a tragedy, arguing that it legalized abortion up to the point of birth. Defenders of the law described it as a bulwark for women’s rights, designed to guarantee that even if the Supreme Court were to overturn or limit its decision in Roe, abortion access in New York would be maintained. Much of the coverage describing the law and its effects has been polarizing, with advocates on each side describing each other’s accounts of it as biased.
Much of the coverage describing the law and its effects has been polarizing, with advocates on each side describing each other’s accounts of it as biased.
As with any charged and divisive issue, the choice of emphasis and focus in coverage can give the same facts very different interpretations and implications—and it is likely that I will be accused of doing the same in this article. Both I and America magazine are strongly pro-life and not on the sidelines of this argument. However, it is worth trying to get to a more even-handed account of what the law does and does not do in order to have a clearer conversation about it, even if we do not expect to fully convince people on the other side.
Much of the disagreement and confusion around what the law does is the result of which abortion cases advocates choose to focus on. Pro-life advocates argue that the R.H.A. potentially allows the most extreme forms of abortion without any serious restriction—and they are right. Pro-choice advocates respond that the late-term abortions up to the point of birth that pro-lifers highlight are rare and almost always involve cases of extreme medical complexity—and they are right.
Before unpacking in detail what the law does and does not do, let me highlight two points that this disagreement tends to obscure.
What is being missed in the debate over the law?
First: One major aim of the law was to change the terms of the debate. Its practical effects on the number of abortions conducted in the state of New York are likely to be fairly small. The primary reason for its passage was to stake out New York’s position in favor both of preserving and expanding Roe v. Wade’s guarantee of access to abortion. And the way the law accomplishes that is to remove anything in New York law that could have been interpreted to limit abortion or to extend any protection to a child before birth.
New York already has one of the highest rates of abortion in the country.
Second: New York already has one of the highest rates of abortion in the country. In New York City, about one in every three pregnancies ends in abortion. To judge by the numbers, a lack of access to abortion in New York is not a problem. But these extremely high rates tell us that far too many women are facing pregnancies in circumstances where abortion seems to them to be their best or only choice. Many of the potential explanations for this—an extremely high cost of living, a lack of affordable housing, and scarce availability of parental support and child care—deserve attention from policymakers and could be points of agreement between pro-life and pro-choice activists. Unfortunately, those issues do not get anywhere near the attention that the arguments about late-term abortions do, even though they are deeply involved in the (far more numerous) early abortions.
Does the R.H.A. allow abortion up to the point of birth?
The new law allows abortion under any of three conditions: (1) if it is performed earlier than 24 weeks of pregnancy; (2) in an “absence of fetal viability”; or (3) if necessary to “protect the patient’s life or health.”
So abortion is allowed without any restrictions during the first and second trimesters. Later than that, the question is how fetal viability and protection of the life and health of the mother are determined. The R.H.A. says that those judgments are to be made according to “the practitioner’s reasonable and good faith professional judgment based on the facts of the patient’s case”; it does not impose any objective medical standard.
Pro-life critics point out that the exception for the health of the mother is broad enough to cover basically any possible late-term abortion.
Pro-life critics of the law are pointing out that the exception for health, which is not restricted to a physical definition and can be interpreted to cover psychological and emotional health, subject only to the medical judgment of the abortion provider, is broad enough to cover basically any possible late-term abortion. Insofar as the goal of the law was to guarantee access to abortion and remove restrictions on it, this is part and parcel of that goal. The new law does not contain any meaningful restriction that is likely to ever prevent an abortion.
Pro-choice advocates point out that one reason for that is that the very small fraction of abortions that are conducted at 21 weeks or later (a little more than 1 percent) are almost always in response to some medical issue. Those issues could include acute risks to the life of the mother or conditions that make the child unable to survive to birth—but they also include situations where the child would face a terminal condition, significant suffering or a severe disability after birth, and where abortion is chosen to “spare” the child such pain. However, some providers have acknowledged that they are willing to perform late-term abortions even absent medical necessity, though it is impossible to estimate how many late-term abortions fall under that description.
Does the R.H.A. allow non-physicians to perform abortions?
Yes. The law specifies that a “health care practitioner licensed, certified, or authorized” under New York’s medical licensing laws can perform an abortion and make the professional judgments described above. This means that it is possible that licensed nurse practitioners or physician assistants could perform abortions.
Does the R.H.A. define “human person” to exclude unborn children?
This is complicated. In addition to the provisions explicitly allowing abortion discussed above, the R.H.A. also modifies sections of the New York state penal code to eliminate references to abortion. Prior to these changes, the definition of homicide included causing the death of a person (defined as “a human being who has been born and is alive”) or of an unborn child if the woman has been pregnant for more than 24 weeks.
Prior to these changes, the definition of homicide included causing the death of an unborn child if the woman has been pregnant for more than 24 weeks.
After the removal of abortion from the penal code, the existing definition of person as “a human being who has been born and is alive” remains—but because there is no longer any reference whatsoever to unborn children as possible victims of homicide, the law now effectively excludes them from the definition of “human person.”
Pro-life advocates have also pointed out that this change in the penal code means that domestic violence resulting in the loss of a pregnancy can no longer be prosecuted as severely as it has been. (It can of course still be prosecuted in the same way as any other assault against someone who is not pregnant.)
Does the R.H.A. remove protections for an infant born alive during an abortion?
Yes. The R.H.A. repeals section 4164 of New York’s public health law. That section had provided that abortions after the 12th week of pregnancy had to be performed in a hospital, and that for abortions after 20 weeks a separate physician had to be on hand to provide medical care for any infant born alive during the procedure—which is a possibility, even if an unlikely one.
The now-repealed section also specified that a child born alive during an abortion procedure immediately enjoyed the protection of New York’s laws, and it required medical records to be kept of the efforts to care for the infant. Without section 4164, the public health law is now silent on the status of an infant born alive during an abortion.
What does calling abortion a “fundamental human right” mean?
The R.H.A. sets out the law’s purpose to secure for every pregnant woman a “fundamental right to choose to carry the pregnancy to term, to give birth to a child, or to have an abortion.” The law also says that the state shall not “discriminate, deny or interfere” with these rights in any other regulations.
This has raised concerns about how this “fundamental right” may be asserted in the future against hospitals, doctors and other medical professionals who object to abortion in conscience. An official with the New York State Catholic Conference said that the law “foresees a time in New York when it’s a crime to be pro-life.” New York State Right to Life, a state political party and lobbying group, argues that this language opens the door to “restrict efforts by pro-lifers…and prohibit any limits on abortion.”
The R.H.A. does not contain any explicit provision requiring anyone to perform or provide abortions, but neither does it explicitly provide any exemption for conscientious objection by health care professionals regarding abortion.
In other words, it is not yet clear what precise legal effect the “fundamental right” language may have. The pro-life movement is concerned about how it might be used in the future to compel participation in making abortion available, but it is unclear how and if courts would interpret and apply a “fundamental right” to abortion beyond the existing text of the law.
Where does this leave us?
Prior to the passage of the R.H.A., if Roe v. Wade had been overruled by the Supreme Court, New York would have reverted to its 1970 abortion law, which already permitted abortion for any reason up to the 24th week of pregnancy and later than that in case of danger to the mother’s life. At the time of its passage, three years prior to Roe, the law was the most permissive in the country. If it were still on the books, the 1970 law would still be more permissive than abortion laws in many European countries, most of which impose limits on abortions starting around 12 weeks.
The bigger tragedy is that it the new law deeply entrenches our divisions over abortion by adopting the most absolutist pro-choice position imaginable.
In the sense that the law the R.H.A. replaced already permitted abortion without many limits, the practical changes due to the new law are likely small. By making it possible for non-physician medical providers to perform abortions and removing the few prior limits on late-term abortion, it is likely that the R.H.A. will slightly increase the number of abortions in the state of New York. However, as pointed out previously, New York already has an extremely high abortion rate, so the existing restrictions probably were not preventing many abortions.
But the law is of huge symbolic importance. It announces that pro-choice activists and their political allies have no interest in or intention of settling for abortion that is “safe, legal and rare.” It has systematically eliminated any legal recognition, no matter how meager, that an unborn child could be worthy of protection or concern, following a playbook that argues that any acknowledgment of “fetal personhood” must be essentially anti-woman.
The tragedy of this law is not only that it makes late-term abortions more available in New York. The bigger tragedy is that it more deeply entrenches our divisions over abortion by adopting the most absolutist pro-choice position imaginable and leaves New Yorkers less able to work together to address or even acknowledge the factors that contribute to our state’s catastrophically high abortion rate.
I live in a city where for every two mothers whose pregnancies fill them with joy, one woman has turned instead to abortion. That is not just because New York protects the right to abortion. It is also because we have failed to present a better option, and the R.H.A. has doubled down on that failure.
ORIGINAL ARTICLE: https://www.americamagazine.org/rha2019
We are frequently questioned or challenged to substantiate the arguments that we have been making about the effect of the Reproductive Health Act. People keep asking us to show them “where in the bill does it say that”?
Here is a detailed explanation of how the bill (now the law) does precisely what we have accused it of doing. The language of the bill is in italics, followed by the legal analysis.
§ 2599-aa. Policy and purpose. The legislature finds that comprehensive reproductive health care is a fundamental component of every individual’s health, privacy and equality. Therefore, it is the policy of the state that:
1. Every individual has the fundamental right to choose or refuse contraception or sterilization.
2. Every individual who becomes pregnant has the fundamental right to choose to carry the pregnancy to term, to give birth to a child, or to have an abortion, pursuant to this article.
The term “fundamental right” is extremely significant. This language incorporates the constitutional law principle that “fundamental rights” cannot be regulated except for compelling state interests and in the most narrow way possible. Virtually no regulations of abortion survive this “strict scrutiny” standard.
This language poses a direct threat to religious freedom and conscience rights. It gives the state the authority to deny licenses to individuals and institutions that do not provide or cooperate with abortion.
To understand the significance of this, you have to understand that the Education Department oversees all the licensed professions like doctors, physician assistants, nurses, and others. So this provision authorizes the Education Department to permit non-doctors to do abortions and to set the limits on what they can do. So it’s entirely in their discretion to allow non-doctors to do surgical abortions like early suction aspiration abortions – where a vacuum is inserted into the womb and the baby is sucked out, often being dismembered in the process of being killed.
This means that the application of this law is entirely in the discretion of the abortionist. Since there are no penalties for violating the law, this standard is meaningless.
This means abortion on demand for any reason at all for the first twenty-four weeks of pregnancy, including times when the infant has a heartbeat (about eight weeks), and can feel pain (about twenty weeks).
This term is undefined in the law, meaning that it is entirely up to the abortionist to determine the application of the law, with no third party (e.g., another doctor) having to concur. The doctor can therefore decide that an infant isn’t “viable”, for example, because she has a developmental problem that would require medical treatment for her to survive – in other words, virtually any kind of disability.
This is the heart of the matter. This term has been defined by the Supreme Court as meaning “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient” ( Doe v. Bolton, the companion case to Roe v. Wade). In effect, it means any reason whatsoever, if the woman and the abortionist consider it relevant to her emotional or psychological or family health. Notice also that the bill considers only the mother to be a “patient”. The unborn child is a target.
This provision repeals the law that gave full civil rights protection to a child born accidentally in a post-twenty-week abortion, required that such abortions be done in a hospital, and that a second doctor be available to provide care to the infant. By repealing it, the bill guarantees that the infant will receive no care and will be allowed to die untreated. After all, the infant isn’t the doctor’s patient – that’s the mother. And the doctor has no obligation to provide treatment that he considers futile. And in the end, the entire purpose of the abortion is to produce a dead baby, so this part of the bill guarantees that.
This provision repeals all the criminal statutes that would penalize illegal abortions. It thus would prevent a serious criminal prosecution for a direct attack on the unborn child, an abortion by an unlicensed person (the “back-alley” practitioner), and a coerced abortion.
Many of the advocates for this bill – including the Governor and other elected officials – continue to spread falsehoods and deny what it really does. So let’s turn the question around on them. Take our worst-case scenarios, and ask, “where in the bill does it prohibit that?” The fact is, there is absolutely nothing in the bill, or the state of the law after its enactment, that would prohibit any of these following things.
Abortion up until the moment of birth for any reason – because of the broad definition of “health” that could include virtually anything the mother and the abortionist want it to mean.
Non-doctors doing surgical abortions (e.g. vacuum aspirations) – because it repeals the physician-only provision of the old law and leaves it entirely up to the Education Department to decide who can do abortions.
Pharmaceutical abortions prescribed online (the term is “telemed”) – again, because the scope of practice of the abortionist is entirely in the discretion of the Education Department.
New York becoming an abortion destination – because we will be one of the few states in the nation that permits late-term abortions for any reason without any regulation.
Aborting an infant with a disability who would need medical care to survive out of the womb – because of the vagueness of the term “viability”, and also because of the broadness of the term “health”.
Not treating an infant born alive accidentally – because it repealed the law that granted legal protection to such children, and because abortionists are not going to treat the child that they were in the process of killing in the womb moments earlier.
Prosecutions of non-licensed persons performing abortions (the old “back-alley” abortion) – because prosecuting the offense of practicing medicine without a license is up to the discretion of the Education Department and the Attorney General, and it’s very unlikely that New York’s staunchly pro-abortion government is going to do much about this.
An attack on an unborn child that does no harm to the mother but causes a miscarriage – because the unborn child is not a “person” under our law, the only possible crimes to prosecute might be misdemeanor assaults on the mother, a woefully inadequate remedy for such a heinous offense.
Much has been made of the idea that this bill only “codified Roe v. Wade“. But here’s what the Supreme Court actually said:
With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion
This new law rejects the idea that the state has any interest whatsoever in protecting the life or health of an unborn child at any stage, much less the time when the baby can survive outside of the womb. That is a gross dereliction of one of the fundamental duties of any government, and it marks a return to barbarism.
That’s what the law says. It is perverse to claim otherwise.