NEW YORK (BP) — New York Attorney General Eric Schneiderman, a Democrat, issued a legal notice to the state comptroller on Sept. 8 saying that abortions after 24 weeks are legal in the state. Schneiderman argued that the “health” exception in judicial precedent allows abortion at any time in a pregnancy.
“New York law cannot criminalize what the federal Constitution protects,” Schneiderman wrote in the opinion. “[A]n abortion performed after 24 weeks from the commencement of pregnancy is legal in New York when the fetus is not viable or when the abortion is necessary to protect the health of the pregnant woman.”
The “health” of the mother is a nebulous legal exception that can mean physical, emotional, psychological, or familial health, according to the Supreme Court precedent in Doe v. Bolton.
New York was one of the first states to legalize abortion in 1970. But that law also banned abortions after 24 weeks, except to save the life of the mother.
Now New York has one of the highest rates of abortion in the country and is one of the most accommodating states for those seeking to terminate a pregnancy. New York does not have a residency requirement for abortion, so anyone can travel to the state to receive a late-term abortion. State Medicaid covers abortions performed in the state, and New York provides funding to abortion groups like Planned Parenthood.
In 2014, documents revealed that New York health officials did not conduct inspections at a number of abortion centers for 12 years. During that time, the state reported 1.5 million abortions.
Schneiderman’s opinion does not have the force of law, but it gives legal cover to abortion centers and hospitals in the state to perform late-term abortions.
“It removes any doubt in the minds of the hospitals and the abortionists that they can go ahead and do late-term abortions,” said Ed Mechmann, a lawyer and the director of public policy for the Archdiocese of New York. “The law previously was a deterrent to people doing late-term abortions.”
Indeed, Stephen Chasen, an obstetrics and gynecology physician at NewYork Presbyterian Hospital/Weill Cornell Medical Center told The New York Times that the hospital now could feel “comfortable that we’re not at risk at all of being prosecuted.” Chasen specializes in diagnosing prenatal anomalies “such as Down syndrome.”
Speaking of disabilities, the viability portion of Schneiderman’s opinion argued that under judicial precedent the abortionist (“the attending physician”) determines viability. Babies now can often survive at 24 weeks.
“This wide open definition of viability is an invitation to eugenics,” said Mechmann, who added that mothers often seek late-term abortions because that is when they discover fetal problems.
The attorney general’s office was not modest about the move, sending out a press release about the opinion, complete with congratulatory quotes from Planned Parenthood of New York City and the New York Civil Liberties Union. Pro-life groups in the state had no idea this memo was in the works.
“[The abortion industry] would never submit this to an open public debate, because on this particular issue they would lose,” Mechmann said. “The vast majority disapproves of late-term abortion. And I think they know that because they go through these extrajudicial maneuvers to advance the cause.”
The legal opinion was a response to a question from the state comptroller overseeing payments for abortions — presumably through Medicaid. But the memo reads like scripted questions and answers.
The memo is a straightforward political move after Democrats lost the legislative battle to expand late-term abortion in 2015. The pro-abortion Schneiderman seems to be trying to accomplish the measure via his own office instead of the legislative process. The attorney general’s office did not immediately return a request for comment on that question.
New Yorkers for Constitutional Freedoms, a pro-life group of evangelicals, reacted to the opinion by dubbing the attorney general “Third Trimester Schneiderman,” saying his opinion would result in the unnecessary deaths of more babies.
“The New York state legislature has declined to pass abortion expansion legislation for a reason,” said the group’s head, the Rev. Jason McGuire, in a statement. “Public policy in the state of New York should be focused on aiding women and their unborn children in their hour of need, not catering to well-funded political allies at Planned Parenthood.”
In 2013, New York Gov. Andrew Cuomo, a Democrat, had introduced a measure as a part of the Women’s Equality Act (WEA), which allowed abortions after 24 weeks for the health of the mother and removed a number of criminal penalties associated with botched abortions. Democrats pushed the abortion measure for two legislative sessions, insisting on keeping it tied to other measures in the act that increased penalties for sex trafficking and sexual harassment in the workplace.
Thanks in part to lobbying from the New York Catholic Conference and New Yorkers for Constitutional Freedoms, the abortion provision stalled. The state legislature passed the other WEA measures like the sex-trafficking bill separately.
Mechmann doesn’t know what strategies pro-lifers in the state might have going forward.
“I think our legal recourse is very, very limited,” he said. “I don’t know if there’s really that much we can do.”