On January 22, New York’s Democrat-controlled legislature passed and Governor Andrew Cuomo signed into law a controversial Reproductive Health Act that has conservatives crying foul. Liberals and conservatives alike can understand the law’s purpose: To protect the rights currently protected by Rowe v. Wade should that historic decision be reversed on the federal level. New York’s Reproductive Health Act goes a step farther to decriminalize abortion. As is often the case, those on both sides of the issue need to read what the law really says. And once again, definition of key terms is central to how the new law is interpreted.
Abortion legislation has long had to address the difficult concept of when life begins. Something as simple as referring to the product of conception as a fetus as opposed to a child can color how a law is viewed. Legislators have also had to confront what “late-term abortion” means. Donald Trump, Jr., recently referred to “post-term abortion,” which seems to be a medical impossibility: “And when I watch those Democrats standing there saying that, ‘Oh, it’s terrible that you can’t let someone kill a baby that is in the process of being born, in labor or shortly thereafter’ something’s very wrong.” Trump took Virginia Governor Ralph Northam’s comments about how he would deal with a non-viable baby or one with severe deformities out of context to say that Northam would “execute a baby after birth.” Killing a baby in the process of being born, during labor, or shortly thereafter would not be right by anyone’s standards, and numerous charges of double homicide have been brought against those accused of killing a pregnant woman whose child consequently dies. This is not, however, the meaning of the term abortion.
Speaking out against the New York legislation, Trump, Sr., said, “Lawmakers in New York cheered with delight upon the passage of legislation that would allow a baby to be ripped from the mother’s womb moments before birth.” Why anyone would rip a baby from its mother’s womb moments before birth is unfathomable and is, again, hardly an abortion. Key words in the legislation explain under what circumstances abortion would be allowed. What the New York law says is this: A health care practitioner “may perform an abortion when, according to the practitioner’s judgment based on the facts of the patient’s case: the patient is within twenty-four weeks from the commencement of pregnancy, and there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health.”
Doctors have long since defined when a fetus is viable or can survive outside of the womb. The term “viable” refers to both the fetus’s gestation period and its condition. All but seven states currently place limits on when an abortion can be performed based on viability—generally 20-24 weeks after conception. The tragedy of having to make the decision to abort a child after the point of viability usually arises because doctors have determined that the child will be stillborn or will die very soon after birth. For most women that decision is not lightly made. Before Rowe V. Wade, a pregnant woman whose fetus was dead could not abort the child under medical supervision but had to wait until her body aborted it.
Not everyone agrees whether an unborn child should be sacrificed to save the life of the mother. Even more controversial is whether that should be done to protect the mother’s health, since “health” covers a lot of territory, including mental health. The language surrounding abortion is full of pitfalls and is emotionally charged because it touches on some of Americans’ most firmly held beliefs, whether it is belief in the rights of the unborn or the right of women to make choices regarding their own bodies.