Troubling Questions in Health ActJacqueline Nolan-Haley in The Times Union, May 20, 2013
The governor still has not offered any specifics on the abortion legislation he proposed in his State of the State speech in January.
He supports the proposed Reproductive Health Act (Senate Bill 438), which is an extremist reimagining of the Supreme Court's 1973 decision in Roe vs. Wade and goes far beyond any codification of Roe.
Equally problematic is the use of vague key provisions in the proposed legislation that would block responsible state regulation in the area. The proposed RHA leaves undefined key words and phrases such as health, good faith, extraordinary medical measures and qualified licensed health care practitioner.
These omissions raise multiple, complex questions for a civil society. What counts as a "health" reason in late-term abortion decision-making under the Reproductive Health Act? Sex-selection abortion? In Roe, the Supreme Court consistently referred to abortion as the "termination of pregnancy" and it emphatically rejected the absolute "her body, her choice" mentality that a woman is entitled to terminate her pregnancy "in whatever way, she alone chooses."
Roe equally stressed the role of the state in this area where human life is in play. Roe plainly and clearly held the state accountable to protect the health of a pregnant woman as well as to "protect the potentiality of human life."
All state legislators should reread the following key provision of Roe because it applies to them: "We repeat, however, that the state ... has still another important and legitimate interest in protecting the potentiality of human life."
The proposed legislation throws away these important and legitimate interests of society with an overly expansive definition of the zone closed off to state regulation. The proposed legislation includes not only the right to terminate a pregnancy as allowed by Roe but also the right to an abortion method that produces a dead baby.
"Abortion means the termination of pregnancy for purposes other than producing a live birth, which includes but is not limited to a termination using pharmacological agents."
With late-term abortions freely available, more troublesome questions are raised: Does the right to abortion in the proposed legislation include the right to a dead child?
With late-term, post-viability abortions, where does the right to abortion become a right to infanticide?
Roe defines viability as the point at which the fetus is "potentially able to live outside the mother's womb, albeit with artificial aid," and as the point when the fetus "presumably has the capability of meaningful life outside the mother's womb." The Supreme Court noted that viability was usually placed at 28 weeks but could occur earlier at 24 weeks.
Compare this to the definition of viability in the proposed legislation in New York that rejects or ignores Roe's interpretation allowing artificial aid to sustain viability.Again, more troubling questions are raised: How many infants in hospital newborn nurseries would be considered nonviable under this definition? What effect will this viability definition have on the state's maternity programs for low-income women who choose to complete their pregnancy with the goal of a live birth? Would insurance companies be able to deny coverage for "extraordinary medical means" and say they will only cover "ordinary medical means" for parents with premature babies?
The proposed Reproductive Health Act goes far beyond the abortion boundaries established by the Supreme Court in Roe vs. Wade. It raises multiple, complex and troubling questions about late-term abortions and should be a cause of concern for all citizens and their elected representatives.