(not political)
There’s been some social-media frenzy of late over New York’s recently passed law on abortion, with many claiming that it means that a woman can now get an abortion at any point of her pregnancy, even literally right up to the moment of birth. Is that what it really means, though?
Trying to parse it is a bit tricky; it seems to say that as long as an abortion physician thinks it is a good idea, that all late-term abortions are now OK, but would appreciate it if some Doper here who knows this stuff can help interpret the legalese for me.
That’s the gist, but technically, it’s a good-faith assessment that the fetus endangers the health of the mother. Part of the criticism is what exactly does that mean? Is ‘the baby is pretty big and going to cause some tearing’ so it’s ‘necessary to protect the patient’s health?’ Is 'the mother is extremely distraught about having a child and could develop mental health issues? It leaves a lot of wiggle room that could be exploited. Even more crazy is the fact that now non-doctors can perform the procedure. We recognize that doctors are shying away from doing abortions, so there is an access issue, but is the solution to let a nurse perform surgery? I would hope not. Isn’t the justification for legalized abortion that it makes a procedure that people are going to get done anyway safer? How is letting non-doctors perform surgery advancing that goal?
Of course, the reality is that this law is more political than practical. Nothing much practically will change with this law. New York is the second largest abortion provider in the country and per capita by far the first. Roughly 1/3 of all New York pregnancies end in abortion and I find it difficult to believe that this legislation could make that number too much higher. There’s a cap on the number of women who want to abort and New York has to be pushing against that limit.
Ok, but if a woman who is just 1 day shy of going into labor says “I don’t want the baby,” is that good enough to qualify for the abortion, or does she have to get a physician to attest some statement that she is in physical or mental distress?
Snopes has a pretty good article (I thought) that tries to cut through the hysteria about it:
The new law states: “A health care practitioner licensed, certified, or authorized under title eight of the education law, acting within his or her lawful scope of practice, may perform an abortion when, according to the practitioner’s reasonable and good faith professional judgment based on the facts of the patient’s case: 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.”
That article also points out that abortion in New York now falls under public health laws and no longer regulates abortion under criminal law. In the past a doctor might have shied away from providing services out of fear of criminal prosecution. Now that should be less of a concern.
Definitely not. A licensed health care practitioner has to make the judgment that it’s necessary for the mother’s health. The mother can’t make that decision herself.
Abortions up to the 24th week of gestation - the second trimester - are already legal in New York. Cite. Abortions later, after the 27th week, are also available.
AFAICT the GQ answer to your question is yes. Cite.
Note that “health” is not defined, apart from saying that it is up to the abortion provider to determine that the impact of the pregnancy constitutes a risk to the mother’s health. Pregnancy and delivery, in and of themselves, are not zero-risk. So on some level, any pregnancy constitutes a risk to the mother’s health.
But I’m sure that in situations like these there are plenty of pro-choice doctors who would have “necessary for the mother’s health” as a macro in their computer documentation system. Further, couldn’t the doctor simply decide that if the mother does not want the baby, then forcing her to give birth and go through the adoption process would cause emotional turmoil, thereby harming her health?
Sort of like how Snoop-Dogg had a medical marijuana card in California. I obviously haven’t seen his medical chart, but I’ll bet you all sorts of money that he does not have a condition that can be treated by using marijuana except possibly “low THC levels in the bloodstream.”
I’ll point out that “necessary for health” is not the same thing as “conducive to health”. If there is a health condition which can be addressed by abortion or by other methods, then the abortion is not “necessary to the health of the mother”.
In that case the doctor is not acting in good faith and is violating the law as written. I’d be shocked if there weren’t consequences for that kind of rubber-stamping. Any licensed medical practitioner knows that the procedure isn’t medically necessary simply because of potential emotional distress. They could take a political stance if they want but they’d be taking a big risk in doing so.
That’s why I asked because it seems vague. The law says “necessary” which any English speaker knows is subject to a few different interpretations.
In this context does necessary have the force as if “absolutely” was placed in front of it? May a doctor perform a late term abortion only if absolutely necessary to the health of the mother? Laws typically don’t function that way. So where in between “would be slightly beneficial” and “absolutely necessary” does this law lie?
“Health” is also another vague word. Is that having the sniffles or losing an arm? Where in between?
How much deference is given to the doctor’s determination? Absolute? Good faith? How 50% plus 1 of other doctors would have done it? What if the doctor has a pro-choice sign on his car? Can we infer that he might have cheated a bit on the determination? Or conversely, if he has a pro-life bumper sticker on his car, might we conclude that he is not performing abortions that are necessary to preserve his patients’ health?
I know this is GQ, but if I was a lawyer representing a client subject to this law, I would have to just shrug my shoulders.
Wow, it’s almost as if they trust doctors to have the knowledge and experience to make informed decisions on a case-by-case basis, taking into account the unique medical circumstances of each patient.
I would agree with that if the law said, “an abortion after 28 weeks gestation may be performed if the doctor, in his or her good faith medical opinion, and reached through informed decision, believes an abortion is appropriate.”
But that’s not what the law says. And doctors should not rest on your interpretation. Just ask those who have went to prison and/or had their licenses revoked for “overprescribing” opioids.
IIRC the Canadian law used to ban abortions “unless the health of the mother was at risk” according to the judgement of a committee of doctors from the hospital. Oddly enough, some committees did consider mental distress a valid reason, others (St. Michael’s?) did not. The law was applied unequally. Fun fact, when the Canadian Supreme Court made the government rewrite the law so that it was fair, the pro-abortion and anti- sides could not agree, so Canada no longer has such a law.
So for the discussion - I assume the decision whether an abortion is “medically necessary for …health” is up to the medical practitioner at this point. Some may consider mental distress a valid reason.
Should point out the risk here is the same as in Canada; if the fetus is born alive - takes a breath - then any action which would cause it to die is murder or manslaughter, presumably including deliberate actions which cause the baby to be born premature. Hence, any action after 26 weeks is risky if the outcome will be that.
And I’m not aware of any of the warned negative side effects that some pro-lifers like to try to scare people with, including infanticide becoming more common and acceptable, and breast-cancer rates spiking.
OK, but time-wise - which is what most of the hullabaloo seems to be about - it would be true, then, that if a New York physician now deems an abortion necessary for a pregnant woman literally up to the day or even the hour prior to childbirth, that the abortion could legally proceed?
Well, if anyone makes an issue out of it, let the doctor justify his or her decision that it was indeed medically necessary at the appropriate malpractice hearing.
On reflection, “malpractice” was a poor choice of words on my part, in that it implies a civil-court proceeding of some kind with nonmedical judges and jurors and whatnot. What I had in mind was more akin to a Morbidity and mortality conference where the doctor describes the circumstances that prompted the decision and other doctors evaluate the soundness of that decision, in the interest of ensuring quality care, not punishment.
My point was, whether USA or Canada, if the fetus is born alive it is a legal person and if as a consequence of the procedure it dies, that is at least manslaughter. Women who choose abortion for personal reasons usually decide well before third trimester, so in general late abortions are for medical issues. There is no rush of women asking for elective abortions the day before due date, and anyone asking would also have to find a cooperative doctor willing to take the risk. Contrary to paranoid belief there are not reams of sadistic liberal doctors who are chomping at the bit to kill late term babies.
Possibly. We had a case around here where a mother injected meth into her arm at 37 weeks. The child was born alive but died shortly thereafter. She was charged with child neglect causing death and convicted. On appeal: