Appeals court upholds extreme New York abortion law

A 2019 law allowing abortion through birth in New York will remain in place, thanks to an appeals court ruling that threw out the lawsuit challenging it.

KEY TAKEAWAYS:

• The Second Circuit Court of Appeals ruled that the Thomas More Society (TMS) did not have standing to bring a lawsuit against New York’s 2019 Reproductive Health Act.

• TMS asked the court to acknowledge certain rights for women, preborn children, and abortion survivors.

• New York’s Reproductive Health Act contains loopholes allowing abortion to birth, removed protections from abortion survivors, and changed the law to ensure preborn humans are excluded as victims of homicide.

THE CONTEXT:

The Reproductive Health Act (RHA) was signed into law by Governor Andrew Cuomo, who celebrated by lighting state landmarks in pink. Yet there was little to celebrate about this law; it allows abortion through all nine months of pregnancy, so long as the mother’s life or health is deemed to be at risk, which is an easily-exploited loophole. It is up to the abortionist to decide if an abortion can be considered “medically necessary.”

As Cuomo pointed out, both Roe v. Wade and Doe v. Bolton were the inspiration for this legislation; under Doe specifically, “health of the mother” meant virtually anything — physical, emotional, psychological, familial, and even age.

The law also removed protections for abortion survivors, allowing them to be left to die if they are born alive after the procedure, and changed homicide laws to exclude fetal victims.

THE DETAILS:

In 2021, the Thomas More Society filed a class-action lawsuit against the law, asking the court:

• to acknowledge First Amendment rights for women whose unborn children are killed by assailants,

• to clarify dangerous ambiguities in the RHA that impact women,

• and to affirm existing, but previously unrecognized, rights for near-term unborn children and children who survive abortion.

As their press released state, it is the first time a New York abortion law had been challenged for violating not only women’s rights, but the rights of children, including viable preborn children. A social worker, named “Mary Doe” in the suit, was named as the plaintiff.

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The U.S. Court of Appeals for the Second Circuit ruled against the Thomas More Society, however, claiming that they had no standing to bring the lawsuit. “[Doe] failed to identify or otherwise describe any class member in the viable fetus class that she sought to represent,” U.S. Circuit Judge Richard Sullivan wrote in the ruling.

Yet this ruling also avoided the question of whether or not preborn children are human beings, meaning they would be eligible to the right to life under the United States Constitution. If preborn children were recognized as human beings, they would be guaranteed constitutional rights under the 14th Amendment.

THE BOTTOM LINE:

“Preborn children are constitutionally entitled to due process, and the equal protection of the law,” Josh Craddock, a legal scholar with the James Wilson Institute, explained in a video for Live Action. “The Constitution, properly interpreted, prohibits abortion through the 14th amendment, and everyone who swears an oath to uphold the Constitution has a duty to ensure those rights are protected.”