Law & the Courts

Lawsuit Alleges New York Abortion Policy Harms Victims of Domestic Violence

New York Governor Andrew Cuomo in Manhattan, N.Y., November 15, 2020 (Andrew Kelly/Reuters)
The state’s RHA removed abortion from the criminal code, making it impossible to charge domestic abusers with a crime if a pregnant mother loses her child.

Last week, victims of domestic violence filed a class-action lawsuit in New York against Democratic governor Andrew Cuomo, challenging the state’s permissive abortion law, the Reproductive Health Act (RHA).

The lawsuit alleges that the abortion policy, enacted in January 2019, is unconstitutional and violates the rights of both women and children, including viable children in the womb. According to the release announcing the complaint, the plaintiffs argue that several of the law’s provisions harm children and “incentivize domestic and intimate partner violence against pregnant women.”

The plaintiffs are being represented by a team of attorneys who are special counsel to the Women’s Alliance Against Violence, an initiative of the Thomas More Society, a conservative law firm based in Chicago.

The RHA made New York one of the most abortion-friendly states in the nation when it took effect almost exactly two years ago. The law expanded the state’s already liberal abortion regime to allow abortions after fetal viability when “the patient is within twenty-four weeks from the commencement of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health.”

The lawsuit alleges that because the RHA fails to define “health” — most likely relying on the Supreme Court’s expansive definition in Doe v. Bolton — it permits post-viability abortions when there is no threat to the mother’s health, violating “existing but unrecognized rights of viable unborn children.”

The RHA also decriminalized abortion, moving it from the state’s criminal code to the public-health code. This move was especially controversial among RHA opponents, as it meant the law would no longer enable the prosecution of individuals whose acts of domestic violence against a pregnant mother resulted in the loss of her unborn child.

Taking issue with that specific provision, the complaint asks the Northern District of New York to acknowledge the First Amendment rights of women who’ve lost their unborn children as the result of assault and to affirm the rights of newborns who survive abortion.

As part of the RHA, lawmakers amended state law to exclude all unborn children, including those capable of surviving outside the womb, from the legal definition of “person,” meaning they can no longer be considered victims of homicide. Plaintiffs argue that this is an alteration to nearly 200 years of the state’s criminal law.

“Because a criminal assailant can no longer be separately charged for the death of an unborn child, the RHA escalates the threat of harm to women and unborn children and incentivizes deadly violence against women,” Christen E. Civiletto, one of the attorneys representing the plaintiffs, says in the release. “New York has stripped women and their families of their ability to pursue justice for those deaths.”

Civiletto points out, too, that this reality contradicts what the RHA itself claims to affirm: a woman’s “fundamental right to choose to carry the pregnancy to term, to give birth to a child.”

Another of the special counsel attorneys, Michele Sterlace, who also serves as executive director of Feminists Choosing Life of New York, says in her public statement that New York should “be enacting, rather than repealing or amending, laws created to deter violence and save human lives.”

“The [RHA] converted a woman’s liberty interest in terminating her pre-viable pregnancy into a novel right to kill near-term unborn children and inexplicably extended this right to criminal assailants,” attorney Teresa S. Collett added in the statement. “People believe that women’s reproductive rights and the recognition of rights for near-term children are mutually exclusive. They are not.”

Finally, the lawsuit alleges that, because the RHA allows any health-care practitioner to perform an abortion but does not define who qualifies as such a practitioner, it leaves women unprotected from unsafe abortion procedures.

“There are numerous cases where women have died or been injured during abortions performed by unqualified and untrained clinic staff,” says Catherine Glenn Foster, a well-known attorney and counsel to the Women’s Alliance Against Violence. “National studies of abortion facility conditions reveal hundreds of significant violations of state laws regulating abortion facilities, with many reports of abortions performed by people with almost no medical training.”

The outcome of this lawsuit will be significant especially as progressive lawmakers across the country mull over enacting abortion expansions similar to this policy in New York.

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