The Corner

Fact-Checking Governor Cuomo

Andrew Cuomo has an op-ed in the Huffington Post today in support of his Women’s Equality Act. He puts forth a series of facts that aren’t quite as accurate as advertised:

Fact: the Women’s Equality Act protects a woman’s right to choose as defined by the 1973 Supreme Court Ruling in Roe V. Wade.

Actually, Roe v. Wade is no longer the controlling federal constitutional standard on abortion. The Supreme Court in 1992 decided the case of Planned Parenthood v. Casey, which purported to retain the “central holding” of Roe, but which actually transformed the applicable legal standard in a way that made it somewhat more possible for states to regulate abortion successfully. So if the goal is really to “codify” federal constitutional law on abortion, a reference to Roe is completely misplaced. (Just to be clear, we would oppose even a codification of the Casey standard, since that also permits the unjust oppression of unborn children, particularly before viability)

In 1970, New York was one of the first states to decriminalize abortion.

This is only partially true. In 1970, New York did indeed partially decriminalize abortion by permitting early-term abortions on demand. But the law still retained significant legal restrictions on late-term abortions. And, unlike with this bill, that law was not released in the late stages of a legislative session, bundled together with a host of unrelated policies, after being drafted in secret with no opportunity for public input and meaningful legislative debate.

Three years later, in Roe v. Wade, the United States Supreme Court held that the United States Constitution protects the right of a woman to choose to terminate her pregnancy prior to fetal viability or throughout pregnancy when it is necessary to preserve her life or health. This has been the nation’s law established by the Supreme Court for the last 40 years.

Here’s why the question of the controlling legal authority on abortion matters so much in practice. The Roe standard was very broad, and the courts used it to strike down virtually every abortion regulation passed by state legislatures. The Court eventually adopted a standard that permitted more leeway for states to regulate abortion — beginning with the Webster decision in 1989 and culminating in the Casey decision in 1992. Here, the governor has chosen to codify the high water mark of liberal abortion law, and ignore the subsequent legal developments that have pared that standard back.

The law in New York, however, was not amended after Roe, making it outdated and inconsistent with federal law. The Women’s Equality Act codifies in state law the reproductive rights afforded by Roe.

In addition to ignoring the current federal legal standard, the proposal also ignores other important developments that have been codified in federal law — such as the Hyde Amendment (restrictions on public funding for abortions), the partial-birth-abortion ban, the criminalization of violence against unborn children (Lacy and Conner’s Law), and more robust conscience protections (such as the Church Amendment and the Hyde-Weldon Amendment). This proposal actually cherry-picks federal law, selecting only the liberalized pro-abortion elements that the advocates want, and rejecting the reasonable pro-life elements, which they consistently oppose whenever they appear.

At the same time, I support and respect religious freedom and therefore our bill does not change any existing state and federal laws that permit a health care provider from refraining from providing an abortion due to religious or moral beliefs.

The conscience protections in the bill are dangerously ambiguous and clearly insufficient. It is impossible to tell from the bill to what extent current conscience laws will still apply or will be superseded, since it fails to define the key term “health care provider.” It also offers no protection whatsoever to non-health professionals or institutions (e.g., Catholic Charities), who may be coerced into cooperating with abortion at risk of losing professional licenses. In effect, the bill expands abortion rights and keeps unchanged (or may actually reduce) conscience protections. 

Contrary to the opposition’s assertion, this language in no way expands abortion rights but only codifies federal law. This is important because the Supreme Court could change in compositions, or opinion, and New York works to protect women’s right to choose.

If the bill really doesn’t expand abortion rights, then what purpose does it serve, and why are the pro-abortion advocates so enthusiastic about it? In reality, it would permit abortion for any reason up to the moment of birth, it would allow non-doctors to do abortions, it could coerce cooperation with abortion by those with moral objections, and it would virtually eliminate any chance of reasonable regulation of abortion (like those currently in place in federal law). This bill gives the pro-abortion advocates virtually everything they’ve ever dreamed of — a more permissive environment for abortion, with virtually no legal limits.

— Ed Mechmann is an attorney with the Archdiocese of New York.


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