Deborah Copaken: Three children, two abortions

On the 46th anniversary of Roe v. Wade, New York Governor Andrew Cuomo signed legislation permitting all abortions until 24 weeks of pregnancy. After that point, the bill asks only that the provider make a “reasonable and good-faith professional judgment” that “there is an absence of fetal viability” or that abortion is “necessary to protect the patient’s life or health.” That last term, health, is left studiously undefined, a significant omission. It also removes abortion from the state’s criminal code. Cuomo described the bill as ensuring “a woman’s right to make her own decisions about her own personal health, including the ability to access an abortion,” and said that, as a result, “women in New York will always have the fundamental right to control their own body.”

In Virginia, Democratic Delegate Kathy Tran introduced a bill—with the backing of her party and of Democratic Governor Ralph Northam—that would significantly loosen existing restrictions on abortion in the final three months of pregnancy. Currently, third-trimester abortions are permitted only if three doctors certify that a woman’s health otherwise would be “substantially or irremediably” impaired. Under Tran’s bill, only the physician who would perform the abortion must provide that certification, and the “substantially or irremediably” language is dropped, in favor of a provision that allows for an exception if the continuation of the pregnancy is determined to “impair the mental or physical health of the woman”—a provision that may appear commonsensical, but is in fact intentionally vague.

Health exceptions like these have been used to allow abortions of viable fetuses for reasons other than medical emergencies, relying on the broad definition of maternal health laid out by the Supreme Court in the 1973 Roe companion case Doe v. Bolton: “All factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the wellbeing of the patient.” Virginia’s law offers an exception for “mental or physical health,” and New York’s simply for “health.” These laws leave the decision up to the person performing the abortion.

These bills represent some of the most lenient abortion policies in the country. Tran said her bill would allow a woman to receive an abortion at term, while in labor, and she offered no explanation of what potential maternal or fetal health complications would necessitate it. Defending the bill in an interview, Northam appeared to suggest that it would permit a physician to deny medical care to a newborn infant: “The infant would be delivered. The infant would be kept comfortable. The infant would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physicians and the mother.” (Northam’s spokesperson later insisted that his remarks had been misconstrued, and that he had been describing only what might happen in the event of “a nonviable pregnancy or in the event of severe fetal abnormalities.”)