The issue I have is with “health” of the mother. What does that mean? Pregnancy itself is very unhealthy for any mother. Does that have any meaning in law or in any court case that can be applied in any reasonable way?
If I’m not mistaken, this has been banned since 2003. The only reason anyone brings this up is to make an emotional appeal. It’s also offensively exploitative as, despite your dishonest links, this procedure is not done because the mother flaked out and didn’t want to be pregnant anymore. If this was done, then there was a reason for it. It was also exceedingly rare, at ~0.2% overall, not the most common.
Let’s say I agree with your point because this is GQ that it is generally not done because the mother “flaked out.”
I’m sure that the overwhelming majority of people would not molest children or defile corpses or do any number of ghastly things that the law prohibits. But you still have these laws to punish those who would do it, even if they are an aberration.
So the short answer is yes, a doctor can do anything including a late term abortion. They can claim to justify it base on “health of the mother”. Then, they have to defend that decision to a judge or a jury, and also to the state licensing board. So what a single doctor decides is irrelevant unless society backs him up.
the old Canadian law, as I mentioned, forbade any abortions unless the life or health of the mother was at risk, in the judgement of a board of 3 doctors for the hospital performing abortions. The law was overturned because it was applied unevenly. Some hospitals, the board agreed that mental health, as in “I don’t want a child at this time”, was a valid concern for the mother’s (mental) health. Other hospitals, some even refused to set up such a board. but this was about any abortions, even early ones, not late term. Presumably - I’m guessing - there were among these doctors on the boards some that felt that an abortion in the fist few months should not be restricted, and simply used “health” as a convenient excuse. Regarding this discussion, I don’t see that there’s an analogous overwhelming desire to allow unrestricted 8th-month abortions.
But again, there is no “magic words” in law. Every decision and justification has to pass the courts. just because a doctor feels an 8th month abortion is warranted for the health of the mother, does not mean those who sit in judgement will agree with him/her. And - that’s the key. It’s not throwing the doors open; it’s a law saying that should a valid exception arise, that medical professionals will agree is an exception and a necessity, the option is there. If it’s a debatable issue, the doctor is betting his life and freedom.
By “anything,” are you referring to partial birth abortions? As has been made abundantly clear, partial birth abortions are illegal across the US. The law does not make an exception for the “health of the mother.” Therefore, the health of the mother is not a factor in conviction. If the doctor performed one, the doctor will be convicted, regardless of his/her reason for doing so. I can’t make it any clearer than that.
If you’re referring to the provision in the law that the doctor can face the medical board in that state to argue his license to practice medicine shouldn’t be revoked, that’s a different matter, and no judge or jury would be involved. Such boards are likely to be skeptical that a D & E wouldn’t have been an option, so I highly doubt such an argument would be successful, but by all means, If you know of a single case where a doctor was convicted for performing a partial birth abortion and successfully argued to keep his/her medical license, do let us know.
But still, doesn’t there have to be some guidance to doctors as to what the “health” of the mother means? Is it a serious threat to health, just short of life threatening or is it a mere possible risk to health, or is it somewhere in between? The term is so vague as to deprive the regulation of any meaning.
A woman who would carry a healthy fetus completely to term and then decide to abort during labor for any reason other than her long term health or life was in danger or the fetus wasn’t viable seems to me to be … well, I’d say she was a psychopath but I’m not qualified to diagnose over the internet…
So I’d say its sort of given that such a person is not healthy.
I’m not sure of your point. The law bans this procedure so it’s a non-issue. This being such a rare procedure when it was legal and then being invoked after it’s been banned is exploitative. It’s done because it’s the most extreme account and is the most emotional to describe. It’s unfair to judge the women who have been in that situation. While it is impossible to know about every situation, if someone was getting that procedure, it was a wanted baby. If some rogue doctor is out there doing this in the third trimester because missy forgot her birth control pill and was on the fence for 8 months, he is will likely be exposed and punished. It’s not fair to project that situation on every account.
The quote is “according to the practitioner’s reasonable and good faith professional judgment based on the facts of the patient’s case… the abortion is necessary to protect the patient’s life or health.”
This is a law. If the doctor violates it, then presumably, there are consequences - not just with the state medical license board, but presumably legal consequences from prosecution.
Many laws include the word “reasonable”. I presume if the local prosecutor feels it was not a “reasonable” judgement, then a judge and/or jury get to decide the matter. Again, there are no “magic words”. A doctor does not escape any second look at his actions by simply saying “In my judgement… it was necessary”.
And in this case, “herd” is appropriate because most such cases become a matter of dueling expert witnesses. Absent a list of doctors willing to take the stand and say “this was reasonable”, it will be deemed unreasonable followed by the appropriate punishments.
As for someone who’s a psychopath and decides in the 8th month “I need an abortion now!” I fail to see how this would make it legal, since having the abortion does not cure the underlying problem, psychopathy. Therefore, not “necessary to protect the patient’s life or health.”
Having the child could exacerbate the problem. But my point was more “this would be a very rare rare case where the woman was severely mentally ill.”
Something I haven’t seen mentioned in this thread ( although I may of course have missed it ) is that as far as post-viability abortion goes, this law is virtually identical to the decision in Roe V Wade. which said
I’m not clear on how people think the NY law is different from what has been the law since 1973. I don’t understand why this law is going to cause women to decide they want an abortion as they are getting on the delivery table or why doctors suddenly need guidance about what exactly the “health of the mother” means when those haven’t been issues for the last 45 years.
And while the law makes no practical difference now, it will if Roe v Wade is overturned and abortion becomes a matter of state law.
I guess the point is - again - the law itself (and Roe v. Wade) is unclear on what “health of the mother” means. Thus it is, as seems usual nowadays, up to the courts to decide what is meant. I would be very (very!) surprised if the court did not decide that the more viable the fetus is, the more dire the circumstances have to be for the mother’s health to be deemed sufficiently at risk to justify the procedure instead of alternatives (such as caesarian, wait for labor, etc.). This would be the “reasonable” side of the decision IMHO, and I’m going to guess the state supreme court which would ultimately decide this issue would come to the same conclusion. So all that’s lacking now is a doctor willing to gamble life in prison and loss of license, because there’s only one way to find out. Indeed, the very ambiguity argues against such a procedure for less than “absolutely necessary” reasons, because lack of certainty means the worst case punishment could result.
Think of this as like the IRS _ just because you call it a loophole or deduction, doesn’t make it one. Reasonable judgement of the government - not your wishes - decide what the law means.
Loss of license , maybe, but not prison under the New York law, which removed abortion from the Penal Law altogether. It’s now regulated under the Public Health Law and so far as I can tell violations of that law are generally punished by a fine.( there may be some PHL violations defined as crimes, but this isn’t one of them)
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No prison? Depends whether the DA decides to attempt to call it murder. Or if something goes wrong and the fetus is born alive by legal definition. Again, the doctor has to bet their license and their future every time. How many want to do that?
It won’t meet the definition of homicide unless the fetus is born alive and the doctor then does something to cause death. Which is an entirely different situation than “the doctor might go to prison because the court doesn’t agree with him about the health of the mother”
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Possibly in NY, but I’m not sure. Generally you are not guilty of a homicide if you fail to help a person who is in distress assuming: 1) you did not cause the distress yourself, and 2) you have no special relationship with the person which requires a duty to help.
Even those #1 would seem to apply, I would assume that #1 would not apply if the doctor was legally permitted to perform the abortion, but in this state a doctor and a parent are among those who have a special relationship that would require the giving of aid when a baby is born alive.
What would you say they should do to make it more specific? If they said “serious”, then you’d just be complaining that “serious” is vague. Do you want a specific listing of the conditions under which it would be acceptable?
It makes sense to leave it somewhat vague, so that the doctor can make medical decisions that he feels are in the best interest of his patients, rather than trying to balance what is best for his patient vs what the law says is best for his patient.
These are people that go to school for quite a bit of time to have a much better understanding of what “health” means than you or your average non-doctor layman. There are those who seem to want to be in a position to second guess medical decisions made by parties that are more qualified in general, more knowledgeable about the specific situation, and actually affected by the decision.
That’s a good question. If the fetus is born alive - a risk I assume depending on procedure - then having caused the birth of a person in such a way as to cause them not to be able to survive, died because of the doctors deliberate intervention to do so, would be the crime.
I’m sure there’s similar case law over perhaps, a DUI causing an accident which brings on Labour but the child is too injured to survive. Analogous concept - injury happens before birth but the death happens after.
After all what mechanism would one use to cause the abortion of a near-term viable fetus? How does one guarantee it will not result in a live birth before the baby dies? (Keeping in mind the gruesome procedure described earlier is not legal.)
There’s a scene in the 1960’s movie “The Cardinal “ when the mother is In labour and they need to crush the baby’s skull or both will die. But then that’s pretty much the definition of necessary.
Two methods. Forced induction which is by far the most common. It involves injecting the fetus with either digoxin or potassium chloride near the heart of the fetus. This causes cardiac arrest. When they no longer detect a heartbeat, labor is induced. In very rare cases, they’ll perform essentially a Caesarian without removing the fetus and injecting it as above. To be honest though, this method is almost a last resort type of thing due to maternal danger so probably not worth really discussing. If they’re doing it, something went carastrophically wrong.
Once there’s a live birth, all of the ordinary laws/regulations that apply in the case of any live birth would kick in. Doctors/parents can withhold medical care in exactly the same circumstances as any other live birth.* It has nothing to do with the reproductive health act at all.
- Which they absolutely can do under some circumstances- there’s no requirement to attempt to resuscitate a baby born alive with anencephaly.