The Ones Ignored

In the midst of a battle over a new abortion law in New York State, Cardinal Timothy Dolan suggested that a true progressive would be on his side of the debate. He cited Governor Al Smith’s aim to “always defend the ones ignored,” and asked, “Is it not the case that today the one most without a voice, the one hidden and ignored…is the baby in the womb? Is it not legitimate to ask why the protection of the civil rights of the preborn baby is not part of the dominant progressive agenda?”

He was reacting to New York’s Reproductive Health Act, which, as Time described it, “has catapulted late term abortion back into the political spotlight.” President Donald Trump assailed the law in his State of the Union address, saying it “would allow a baby to be ripped from the mother’s womb moments before birth.” Governor Andrew Cuomo fought back in a New York Times op-ed, reminding readers that Trump once called himself “very pro-choice” and maintaining that the New York law “merely codifies existing federal law and firmly established practices.”

Like a lot of people, I didn’t know what to believe about this law. What I found is complicated—that the new law does codify the essentials of Roe v. Wade, but that there’s also much more to it. There is a reason that supporters of the bill are celebrating so loudly—Cuomo went so far as to have the World Trade Center lit up pink after the law was enacted on the forty-sixth anniversary of Roe—and that many others, and not just prolife activists, are saddened. As much as possible, the new statute disregards fetal life. In spirit, if not in the essential details, it goes well beyond Roe. For some, that’s cause for rejoicing; for others, not.

The New York law is already being touted as a template for progressive Democrats; Virginia is engulfed in controversy over a legislator’s attempt to ease restrictions on abortions late in pregnancy. Against that background, the notion of a progressive, civil-rights-based approach to limiting abortion may seem far-fetched. But there was a time when it would have seemed far-fetched to imagine that conservative Republicans could be a force against mass incarceration. The liberal case against abortion has been made by such figures as Father Daniel Berrigan and the writer and civil-liberties advocate Nat Hentoff, among others; it exists.

When New York’s previous abortion law was passed in 1970, it had both bipartisan support and bipartisan opposition. Democrats provided a majority of the votes, but it was signed by a Republican governor, Nelson Rockefeller, and passed in a Republican-controlled legislature. In fact, the Republicans insisted that one of their number sponsor the bill.  

The liberalized 1970 law made abortion legal within the first twenty-four weeks of pregnancy, replacing an 1830 statute that outlawed abortion except when necessary to save the mother’s life. Pregnancies beyond twenty-four weeks still couldn’t be terminated except as a lifesaving measure, and criminal penalties remained in effect. Three years later, Roe v. Wade changed that, permitting abortions after twenty-four weeks if the life or health of the mother was threatened. A companion ruling on the same day, Doe v. Bolton, defined “health” broadly. The two dissenting justices complained that as a result of the Doe ruling, “any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.”

On the surface, the Reproductive Health Act of 2019 brings New York law to par with these Supreme Court rulings, as Cuomo argued. Absent the new statute, New York would have reverted to its 1970 law if Roe were overturned. 

But there are some significant differences. In practical terms, it appears that the new law will resolve legal concerns some hospital staffs have had about whether the old state law prevented them from doing late-term abortions—concerns serious enough that the state attorney general issued a legal opinion on the matter in 2016. Without the 1970 law in the background, it will be easier to do abortions late in pregnancy in New York State.

The new law strikes out a section of state law regarding what a doctor must do in the event of a “live birth that is the result of the abortion.” Previously, the law specified, “such child shall be accorded immediate legal protection under the laws of the state of New York.” It directed doctors to maintain records of “all life-sustaining efforts put forth for such a live aborted birth.” In the new law, this is simply explained as “Section 4164 of the public health law is REPEALED.”

What happens now?

Deborah Glick, the Assembly sponsor of the Reproductive Health Act, said during a short debate before the bill’s passage that “if a fetus is somehow delivered and is alive, then it becomes a person under New York State law and is granted all of the rights of a person, if it is alive.”

But the repealed section of the law, which dates to 1974, had included language exhorting doctors to take lifesaving action after the birth and to document what they did afterward. The new legislation includes no such requirements. When asked why, Glick responded, “The purpose of the bill is to ensure that we provide medical judgment and respect the medical judgment of those involved.” 

Supporters of the legislation say that these tragic cases don’t happen. But federal data for infant mortality say otherwise: at least 143 infants were recorded to have lived and died following an induced termination of pregnancy between 2003 and 2014. The data does not include those who survived.

Rhetorically, there is a world of difference between the New York law and Roe. While the Supreme Court ruling discusses the “potentiality of human life” in the woman’s womb, the New York statute avoids any expression of interest in fetal life. Although Roe barred states from interfering with a woman’s decision to have an abortion during the first trimester of pregnancy, it showed a degree of deference to fetal life in the second and third trimesters. The majority opinion stated, “For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” The majority said that state law protecting “fetal life after viability…has both logical and biological justifications.”

On the other hand, the New York law declares in its policy statement, “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.” It says there is a fundamental right to privacy in reproductive health care.

Roe, however, recognizes limits on the right to privacy. “The privacy right involved…cannot be said to be absolute,” the majority opinion says. “In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions.”

That absolute claim returns as the spirit of New York’s abortion law. The faces one sees nowadays in 3-D ultrasound images of a baby-to-be in the later stages—pictures so startlingly vivid that it’s possible to debate if she looks more like the mother or the father—these are “the ones ignored.”