By Maggie Datiles, Esq.
AUL Staff Counsel
Former Governor Eliot Spitzer has introduced an extreme abortion bill, the Reproductive Health and Privacy Protection Act (RHAPP), into the New York State Legislature. This bill will do anything but make abortions rare and safe in New York. On the contrary, the RHAPP will increase the number of abortions performed in New York and wipe out all existing health and safety abortion regulations. If the RHAPP is enacted, it would make New York the abortion capital of America.
The implications and far-reaching effects of the RHAPP are unprecedented and unbelievably disturbing. For example, under the RHAPP, a 12-year old girl could have a late-term abortion performed on her by a non-physician (like a dentist or social worker), and her mom and dad would never know; her parents would be denied the opportunity to talk with the abortion provider about their daughter’s medical history and post-abortion follow-up care. If that’s not enough, under the RHAPP, a Catholic hospital could lose its license if it refuses on moral or religious grounds to refer for or provide abortions.
The RHAPP presents a serious threat to human life and to religious freedom in the State of New York, and its passage will pave the way for similar provisions to be passed in other states. Whether or not one is pro-life or pro-choice, Republican or Democrat, it is easy to see that this bill is extreme, dangerous, harmful to women, and divergent from the standards set forth in Roe v. Wade.
What Would the RHAPP do in New York?
The RHAPP establishes the right to abortion as a “fundamental right,” like the right to vote and the right to freedom of speech. Any and all health and safety abortion regulations would be invalidated as “discriminating” against this new fundamental right. For example, the RHAPP would invalidate current NY health and safety laws that require basic emergency equipment for abortions requiring anesthesia.
The RHAPP would allow late-term abortions on fully formed infants for any reason whatsoever, or for no reason at all. The RHAPP would also authorize non-physicians to perform abortions — if the RHAPP were enacted, a dentist, social worker, or podiatrist could perform abortions on women. This authorization of untrained, unqualified persons to perform abortions unduly places the health and safety of women at severe risk.
As if this weren’t enough, the RHAPP would also violate healthcare providers’ fundamental, 1st Amendment right to religious freedom. If the RHAPP were law, Catholic hospitals, physicians, nurses, and other healthcare professionals and facilities would be forced to lose their medical licenses if they do not refer for or perform abortions, even if they refuse on moral or religious grounds. The RHAPP would force healthcare insurance plans to cover abortions, and force employers — including religious employers who refuse on religious grounds — to purchase abortion coverage.
The RHAPP would allow a physician to perform an abortion on a minor without parental notification or parental consent. In New York, minors are not allowed to be given aspirin by a qualified school nurse without parental consent. However, if the RHAPP were enacted, an unqualified, untrained person would be allowed to perform an abortion — an invasive surgical procedure with major health risks — on a minor without parental consent. The RHAPP would also give minors unrestricted, unmonitored access to the “morning after” abortion pill. It is clear that the RHAPP not only endangers the health and safety of minors, but infringes on the basic and traditional right of parents to direct the rearing of their children.
The RHAPP would take abortion in New York back to the back alley. In addition to allowing non-physicians to perform abortions, the RHAPP would change current NY law to shield from prosecution instances of coerced abortions, illegal performance of abortions by unauthorized facilities, and all other illegal back-alley abortions. The RHAPP would amend the current definition of manslaughter in New York, so that abortion providers will be shielded from being tried for manslaughter for an illegal abortions that caused a woman’s death. The RHAPP would make it illegal for coroners to investigate deaths caused by illegal abortions. In addition, the RHAPP would make abortion reporting requirements illegal, thereby making research on the safety and efficacy of abortion impossible.
The RHAPP would increase abortions in New York. Its passage would endanger women’s health and will bring New Yorkers back to the days of the “back alley.” The RHAPP would strip New York law of provisions that protect women’s health, parental rights, and the religious freedom of healthcare providers, employers, and insurance companies. The RHAPP would protect the abortion industry and abortion providers, not women. It establishes a new “fundamental right” that takes away the ability of the legislature to pass constitutional regulations in furtherance of its legitimate interests in women’s health, parental rights, healthcare rights of conscience, and viable human life. To successfully challenge this dangerously sweeping bill, it must be stopped at the legislative level.
Detailed Legal Analysis of the RHAPP
I. The RHAPP does not “codify Roe”
Former Gov. Spitzer’s campaign and other proponents of the RHAPP, such as NARAL and Planned Parenthood, claim and advertise that the RHAPP would “codify Roe” and “finally put the fundamental tenants of Roe squarely into New York law.” These claims are false. The RHAPP expands the right to abortion far beyond the scope of the right established in Roe. The RHAPP goes beyond Roe, blatantly prohibiting abortion regulations which have been specifically upheld by the United States Supreme Court as constitutional under Roe v. Wade.
The following types of abortion regulations — all of which have been upheld as constitutional under Roe by the USSC — would be invalid under the RHAPP: (1) prohibitions on partial-birth abortion; (2) limits on the use of government funding, facilities, and employees for counseling, referring for, or performing abortion and contraception services; (3) civil rights laws allowing conscientious objection by healthcare providers to participate in abortion or contraception services, counseling, or referrals; (4) restrictions on the manufacture, sale, distribution, and use of emergency contraception (EC), or the “morning after pill”; (4) informed consent laws; (5) parental notice requirement for minor abortions; and (6) parental consent requirement for minor abortions, with judicial bypass.
II. The RHAPP would change the definition of the right to abortion, and shut down the legislature from passing meaningful abortion legislation
The RHAPP would establish the right to abortion and the right contraception as “fundamental rights,” thereby elevating them to the same status as the right to vote and the right to free speech. It changes Roe v. Wade’s definition of the right abortion. Roe v. Wade defined the right to abortion as a woman’s right to terminate her pregnancy prior to viability. The text of the RHAPP re-defines the right to abortion as an absolute right to abortion throughout all nine months of pregnancy, and as the right of a woman to “determine the course of her pregnancy.” This unheard-of definition of abortion conceivably includes any and all other reproduction-related rights, including an absolute right to contraception. The RHAPP would expand the rights to abortion and contraception to an extreme and unprecedented extent.
The RHAPP sets forth a “strict scrutiny” standard of review for abortion and contraception regulations. It invalidates and prohibits all laws, ordinances, regulations, and policies that would “deny, regulate, or restrict” the exercise of the right to abortion and the right to contraception, and states that all such laws “discriminate against the exercise of the right [to abortion and to contraception].”
No abortion or contraception regulation could satisfy such an uncompromising standard; under the RHAPP, all regulations of abortion or contraception will be invalidated or prohibited on grounds of “discrimination.” The RHAPP shuts down the legislature from passing any kind of health of safety regulation in the abortion and contraception context.
III. The RHAPP does not “update” New York law
Former Gov. Spitzer’s campaign and other proponents of the RHAPP claim and advertise that the RHAPP “updates” New York law by “adopting the Casey viability standard.” These claims are false and misleading.
New York law already has a viability standard, and the RHAPP would replace the existing, more objective standard for viability with a problematic and wholly subjective definition of viability.
Current NY law authorizes abortions performed by a licensed physician before 24 weeks of pregnancy, and abortions after 24 weeks of pregnancy under the reasonable belief that it is necessary to preserve the woman’s life.
The current law already contains Casey’s viability standard. According to medical standards, the lungs of a fetus can sustain independent life as early as 23 weeks, and can sustain independent life typically and on-average at 24 weeks. The current law reflects this accepted medical standard for viability. It provides an objectively-determinable standard for viability that (1) has a reasonable basis, (2) is reasonably-related to the state’s interests in the welfare of the mother and viable fetal life, and (3) should therefore be upheld under the long-standing constitutional maxim of legislative deference.
The RHAPP’s proposed definition for viability unjustifiably places the determination of viability in the sole discretion of the abortion provider, with no consideration of generally accepted medical standards. In the face of abundant accepted medical standards that could be used to determine viability, the RHAPP does not require the abortion provider to follow any objective medical guidelines in his determination; this is unreasonable.
The RHAPP’s definition states that a fetus is viable ONLY if it can survive outside of the uterus WITHOUT extraordinary medical measures. This wholly departs from and contradicts the language used by the USSC in Colautti v. Franklin, which states that a fetus is viable if it can survive outside of the mother with or without artificial support.
IV. What is the best way to defeat the RHAPP?
The best way to defeat the RHAPP is to prevent its passage through the legislature. First, although the bill is extreme, dangerous, and would dramatically change NY law, it is within the legislative authority of NY State to enact such a radical law. Second, NY case precedent provides little to no support for a court challenge against the RHAPP. Thus, a court challenge against the RHPP would likely not be successful.
Efforts must be focused on a lobbying strategy that highlights the obvious and serious direct consequences of the RHAPP. This lobbying effort must inform New York State senators of the bill’s radical, all-encompassing “no restriction” policy for reproduction-related legislation, and of the threat that the RHAPP would pose to the rights, health, and safety of women and viable children, and to the State’s right to pass constitutional legislation to further its compelling and legitimate interests in the well-being of its citizens and in the protection of viable human life.