The Story: New York recently passed a law that significantly expands abortion rights—and points toward the next fight in the war against abortion.
The Background: On Tuesday, as many pro-lifers were protesting the 46th anniversary of the Roe vs. Wade decision, the New York legislature was busy passing the Reproductive Health Act.
The act makes three significant changes to the state’s abortion laws: removes abortion from the criminal code and makes it solely a matter of health-care law; allows licensed nurse practitioners, physician assistants, and midwives to perform abortions; and allows health-care providers to use their “reasonable and good faith professional judgment” in deciding whether to conduct late-term abortions.
Now, almost any licensed health-care practitioner can conduct abortions within 24 weeks from the commencement of pregnancy, or later if there is an “absence of fetal viability,” or if the practitioner considers the abortion “necessary to protect the patient’s life or health.”
What It Means: While several media outlets have described the Reproductive Health Act as “historic,” the change isn’t as radical as it might appear—at least from a national context.
The law removes third-trimester abortions from the criminal code, but several other states had already done the same. The law also allows abortions to be conducted by medical personnel who aren’t physicians, but a dozen states do that too.
Even allowing late-term abortions when “necessary to protect the patient’s life or health” is merely a restatement of the Doe v. Bolton, an abortion case that was decided on the same day in 1973 as Roe v. Wade. The Court’s opinion in Doe stated that a woman may obtain an abortion after viability, if necessary to protect her health. The Court defined “health” as follows:
Whether, in the words of the Georgia statute, “an abortion is necessary” is a professional judgment that the Georgia physician will be called upon to make routinely. We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient. All these factors may relate to health.
As Ramesh Ponnuru has explained,
The “attending physician”—in real life, very often an abortionist with a financial stake in the decision—can always say that in his medical judgment, the abortion was necessary to preserve the woman’s emotional “health,” especially considered in light of her “familial” situation. Any prosecution would have to be abandoned as unconstitutional. In other words: The Supreme Court has effectively forbidden any state from prohibiting abortion even in the final stages of abortion.
In the Roe decision Justice Harry Blackmun said that the two opinions—Roe and Doe—“of course, are to be read together.”
What then is noteworthy about New York’s new law? It shows that pro-abortion forces are, like many pro-life activists, preparing for the “day after Roe.” The main fight against abortion may soon shift from the Supreme Court to the state legislatures.
Currently, four states—Mississippi, Louisiana, North Dakota, and South Dakota—have “trigger laws” that will immediately ban abortion if Roe is overturned. New York’s Reproductive Health Act is intended to have a similar, though opposite, effect: The Act ensures that if the Supreme Court throws the abortion issue back to the individual states, the essence of Roe and Doe will already be embedded in state law.
Gov. Andrew Cuomo and many other Democrats in New York believe the next step is to codify abortion rights as an amendment to the New York Constitution. If they are able to do so they’ll be following the lead of eight other states that protect abortion in their constitutions: Alaska, California, Florida, Massachusetts, Minnesota, Montana, New Jersey, and New Mexico. (Eight more states—Connecticut, Delaware, Hawaii, Maine, Maryland, Nevada, Oregon, and Washington—protect abortion by state statutes.)
None of this is news to pro-life activists. But there are many pro-life Christians—maybe even the majority—who think that overturning Roe will put us in the final stage of the culture war over abortion. They aren’t aware that the real battle hasn’t even begun.
As we move ever closer to the day when Roe and Doe, the evil twins of abortion law, are overturned, we need to be ready to focus even more on the state level. Committed pro-lifers need to not only continue to change hearts and minds but to also prepare and motivate the already convinced for the long fight that lies before us.
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