Archive for the ‘Law’ Category

A Bold But Risky Step on Abortion

Thursday, May 16th, 2019

The State of Alabama has taken a bold step, enacting a law that would ban virtually all abortions. The new law has generated a great deal of controversy, as one might expect. Abortion is becoming a “zero sum” issue in our political culture – with the choice being made to look as if it is between either maximum protection for the unborn child or unlimited license for a woman to have an abortion.

Pro-lifers are hoping that this new law may be the vehicle for the Supreme Court to overturn Roe v. Wade. Other laws have also been passed recently and may reach the Court, like those banning abortion after a fetal heartbeat can be detected (about 7 weeks) or after an unborn child can feel pain (about 20 weeks).

Based on the current composition of the Supreme Court, I’m dubious that they are ready to overturnRoe. There’s only one Justice (Thomas) who has indicated that he would do so, and there are at least four (Kagen, Breyer, Ginsburg and Sotomayor) who certainly will not. We don’t have any real idea how the two newest Justices (Kavanagh and Gorsuch) will approach the issue, nor is it by any means clear that Chief Justice Roberts or Justice Alito will vote to overturn Roe.

So it’s possible, but in my view it’s a long shot. There’s also a major risk that the Court could make the law even worse than it currently is. This involves some legal “inside baseball” considerations, so let me explain.

Right now, the Court’s abortion rulings are based on the unenumerated (i.e., not specifically listed in the Constitution) “right to privacy” that is protected under the Due Process Clause of the Fourteenth Amendment (“…nor shall any state deprive any person of life, liberty, or property, without due process of law”). This approach to constitutional law, which is called “substantive due process”, is how the Supreme Court in Roe invented the right to an abortion.

The origin of these unenumerated rights is hotly contested among legal scholars. We would point to their origin in natural law/natural rights, which were understood in the English legal tradition as coming from God, and which are inherent in the nature of the human person and society (as the Declaration of Independence put it, they’re “inalienable”). In this view, the state doesn’t create these rights, but is instead bound to recognize and protect them. Ironically, the “substantive due process” principle that led to Roe is also a kind of natural law argument, but it is a distorted one based on a twisted understanding of human nature and society, since it holds that personal autonomy is the highest value.

Regardless of where these rights come from, the key legal battle is over what standard the courts will use to evaluate any law that has an effect on them. In the case of Planned Parenthood v. Casey, the Court set out the test for whether an abortion regulation would violate that right. The key rule is that prior to fetal viability, there can be no prohibition of abortion, and any regulation will be struck down if it imposes an undue burden on the woman’s ability to obtain an abortion. The Court said that this standard evaluates whether the regulation has “the effect of placing a substantial obstacle in the path of a woman’s choice”. In a later case, the Court read this amorphous “undue burden” standard so broadly that it would appear to endanger virtually any regulation ( Whole Women’s Health v. Hellerstedt).

As problematic as the “undue burden” standard may be, it still permits pro-lifers to argue for the validity of a whole host of abortion regulations. States have passed many such bills, including requiring hospital admitting privileges for abortion doctors, health and safety regulations, outlawing particularly cruel methods of abortion, and banning discrimination against unborn babies with disabilities. All of these are step-by-step methods to enact real protections and to advance a greater social acceptance of the dignity of human life.

In my view, passing laws that outright prohibit all or most abortions is risky as being “too fast, too soon”, given our current social and legal attitudes and values. The danger is that the Court may decide (as Justice Ginsburg has suggested, and as the plurality opinion in Casey implied) that the proper place for the protection of “reproductive liberty” is under the Equal Protection Clause of the Fourteenth Amendment (“… nor deny to any person within its jurisdiction the equal protection of the laws”). The argument is that women cannot participate equally in society unless they have the ability to control their reproductive systems, and regulations of abortion limit that ability and thus treat them unequally under the law.

That would be a legal disaster. The Court has already held that sex discrimination is subject to “intermediate scrutiny” under the Equal Protection Clause. This means that any regulation would have to satisfy a test of whether there is an “important state interest” and the regulation is “substantially related” to that interest. In fact, the Court has said that the state must give an “exceedingly persuasive justification” for any classification based on sex. The courts have been very tough in applying that standard in sex/gender discrimination cases, particularly recently in the gender identity cases. I doubt that many abortion regulations would survive this test.

Even worse, going to the Equal Protection Clause would invite the Court to decide that “reproductive liberty” is a “fundamental right”. That means that the courts will apply an extremely stringent “strict scrutiny” standard that requires proof of a “compelling government interest” and that the law be narrowly tailored to meet that interest. In practice, a strict scrutiny standard is a death sentence to regulations.

We have to recognize that lower federal courts and many state courts are still hostile to us despite many good appointments by the current President. The legal community and academia have been deeply corrupted by the flawed jurisprudence and politics of “reproductive rights”. Convincing courts to uproot the poisoned doctrines of Roe and Casey will be a very difficult task, and would create a political firestorm.

The goal of protecting every human life is shared by every pro-lifer. But politics is always an area for prudence, meaning that we must be careful in the way we advance our values so as not to make things worse, even as we try to make them better.

New York’s Death March

Friday, April 12th, 2019

In the past few months, the Governor of New York State has been leading our state ever more deeper into the Culture of Death. It began, of course, with the passage of the radical abortion expansion law in January, which legalized abortion for any reason throughout pregnancy and removed any legal protection for babies born alive accidentally during the course of a late-term abortion.

Now, the Governor has announced that he believes that physician-assisted suicide should be legalized. On the radio, he said “I say pass the bill. It’s a controversial issue. It’s a difficult issue. But it would need legislation. … I think it is a situation we have to address, definitely.”

Back in 1994, the Task Force on Life and the Law, appointed by the Governor’s father, evaluated and rejected the idea of legalizing assisted suicide. Among the reasons they gave were some prophetic warnings about the dangers to the most vulnerable among us:

“In light of the pervasive failure of our health care system to treat pain and diagnose and treat depression, legalizing assisted suicide and euthanasia would be profoundly dangerous for many individuals who are ill and vulnerable.  The risks would be most severe for those who are elderly, poor, socially disadvantaged, or without access to good medical care….

“No matter how carefully any guidelines are framed, assisted suicide and euthanasia will be practiced through the prism of social inequality and bias that characterizes the delivery of services in all segments of our society, including health care.  The practices will pose the greatest risks to those who are poor, elderly, members of a minority group, or without access to good medical care.”

These structural problems in the American medical system have certainly not been corrected in the years since the Task Force’s report.  Studies consistently show that disparities exist in access to and quality of healthcare across numerous demographic categories, particularly race, sex, socioeconomic status, and geographic location. These inequities are exacerbated by the economic pressures of the current medical system, where cost containment is a priority.

The people who will be at the greatest risk will be isolated elderly people, people with disabilities, and those with mental illness. In fact, the strongest opponents of legalizing assisted suicide come from the disability community, who see clearly that it would stigmatize them, send a message that their lives are not worth living, and result in pressure for them to take their lives. We should listen to their voices – just visit the website of the group Not Dead Yet and you will hear them loud and clear. They rightly fear that they will be the “collateral damage” of the legalization of assisted death.

We also need to pay attention to what is happening right next door to us, in Canada, where assisted suicide and euthanasia have already been legalized. Here are a few of the most recently-reported examples:

  • In Canada, there was an overall 50% increase in assisted deaths in 2018, with 1.5% of all deaths coming in that way.
  • In Ontario, the number of euthanasia deaths have skyrocketed even more, increasing by 78% in 2018 and 50% in 2017.
  • Canada has seen widespread violation of supposed safeguards, including unreported assisted deaths, killing of people who did not satisfy legal standards for euthanasia, etc. This is similar to the experience in Holland and Belgium, where there have been rampant violations of safeguards and no enforcement actions.
  • In a great majority of cases in Ontario, the assisted death was done by a doctor who had no prior relationship with the patient.

And we need to listen to the advocates for legalization, to see how radical their positions really are.

  • A proposed bill in Delaware was actually opposed by pro-assisted suicide advocates because it had too many patient protections in it. Those unacceptable provisions included the patient being 21 years old, having the terminal diagnosis be confirmed by a completely independent doctor, requiring that the patient have a mental health evaluation, and a tight definition of what constituted a “terminal” diagnosis.
  • The Delaware bill would also have re-defined assisted suicide as “palliative care”, an Orwellian distortion of a term that really means (according to the World Health Organization) treatment to ease symptoms but that affirms life and will not directly cause death.
  • A Connecticut bill that (like the bill pending in New York) would require the doctor to lie on the death certificate, raising opposition from law enforcement agencies that were concerned that the provision would prevent any investigation into whether the patient was murdered.
  • A New Mexico bill that would allow someone other than the patient to administer the deadly drugs, permit assisted suicide based solely on mental health conditions, allow prescription of the drugs by non-doctors and without seeing the patient in person but by “telemedicine” (talking to them over the internet).
  • A Minnesota bill that would violate religious and conscience rights by requiring doctors to refer patients for assisted suicide.
  • Repeated statements by assisted suicide advocates that oppose safeguards by calling them “barriers”, confuse the issue by using euphemisms like “medical aid in dying”, and routinely speak of how they intend to expand eligibility for assisted suicide with a goal of legalizing direct euthanasia.

The reality is that we are talking about murder by doctor. And there are no safeguards that can protect vulnerable patients from being exploited or mistreated. There is no way to change the inevitable message of these bills – that some lives are not worth living and that suicide is a legitimate option for people who have mental illnesses or disabilities.

The Governor is taking us down a very dark path. Instead of promoting death for the weakest and most vulnerable citizens, our government should be strengthening their legal protections and improving their access to quality health care. Our state is on a death march, and we must do all we can to change its course.

Will Congress Make Some People More Equal than Others?

Wednesday, March 27th, 2019

A bill was introduced earlier this month in Congress that is deceptively called “The Equality Act” (H.R. 5 / S. 788). It is the latest and most robust version of bills that have been kicking around in Congress for many years. Its ostensible purpose is to add “sexual orientation” and “gender identity” to the list of protected categories under federal civil rights laws. Its effect will be to make Christians and others who adhere to traditional sexual beliefs into second-class citizens.

Certainly, every human person must be protected against unjust discrimination. This is a bedrock principle of human rights, and it has continually been upheld by the Church for many, many years. Specifically with regard to homosexual persons, the Church could not be clearer: “They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided.” (Catechism of the Catholic Church, 2358).

But, despite its name, this bill will actually go much further than eliminating unjust discrimination in housing, education and employment. It is specifically designed to suppress the rights of religious people and institutions who dare to dissent from current progressive sexual dogma. This is done by one small section of the bill, which states “The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.”

This is an astonishing provision to find in a proposed federal law. The Religious Freedom Restoration Act, which was passed by a virtually unanimous Congress, establishes that the federal government may not take any action that substantially burdens religious beliefs and practices unless there is a compelling reason and the offending action is done in the narrowest possible way. It was passed specifically to protect unpopular religions from oppression by majorities. But since 1993, society has changed dramatically, and it is no longer fringe religions like Santeria or Native American faiths that are unpopular with the powers-that-be. Now, its mainstream orthodox Christianity that is out of favor, particularly anyone who adheres to the traditional teachings of our faith about sex and sexuality.

By including this provision, the Equality Act would stigmatize and penalize any Christian who still believes that God made man and woman in His own image and likeness, that the differences between the sexes are significant and normative, and that morally acceptable sexual behavior is only between a man and a woman in the bonds of marriage. No matter how sincere your religious beliefs, no matter how severe the burden imposed on you, no matter how trivial the government policy, no matter how meritless the discrimination claim, you would never be able to assert your religious freedom as a defense if this bill passes. I’m not sure that there has ever been a single instance in American history in which such a fundamental right as religious liberty has been specifically eliminated by a federal statute. After all, a right without a remedy is no right at all – so if the Equality Act passes, it will effectively eliminate the right to religious freedom.

As for specifics about the kinds of harm that would be caused by this bill, in a letter to Congress, the US Bishops noted that it would:

  • Regulate thought, belief, and speech — It would compel people to conform to the new orthodoxy about sexuality or risk being sued for discrimination or creating a hostile environment. It will mandate inclusion of the new sexual orthodoxy in every training program in every workplace and school.
  • Hinder quality health care — It would require health professionals and institutions to perform medical procedures associated with “gender transition” that are objectively harmful, such as mutilation of genitals and hormone replacements. Catholic hospitals have already been sued over their refusal to maim patients because of their desire to change their “gender identity”.
  • Endanger privacy — Because there is no objective definition of “gender identity”, men and women would no longer be assured of personal privacy in traditionally sex-segregated spaces such as restrooms and locker rooms.
  • Threaten charitable services — It would force religious charitable agencies to either violate their principles or shut down. This is happening right now in Michigan to Christian adoption and foster care agencies, and it has happened in other locations as well.
  • Exclude people from various businesses, career paths and livelihoods — Professions like law, psychology and medicine will all be closed to those who do not wish to conform to gender ideology. Businesses will likewise be targeted to force conformity – just ask all those in the wedding industry who don’t want to participate in same-sex weddings and are being harassed by litigation or civil rights commissions.

In his great Memorial and Remonstrance,  James Madison made a powerful argument for religious freedom from any encroachment by the government. His words are worth quoting at length, because they embody the deep respect for the freedom of religions that was held by the Founders of our nation:

Because we hold it for a fundamental and undeniable truth, that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence. The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right… It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society…We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.

Because if Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body…The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves.

Our government is now sliding towards a kind of totalitarianism on sexual matters, propelled by a tiny minority of people who have managed to gain the allegiance of a very powerful political party that now holds a majority in the House of Representatives. We are already living under such a regime here in New York, and this special interest group is seeking to extend it across the nation.

We need to be  very clear about the injustice this Equality Act is seeking to bring about. It is seeking to reduce Christians into second-class citizens whose rights are not to be respected when they conflict with those of the favored few. That is not equality at all, but tyranny.

Defending Infanticide is Now Pro-Abortion Dogma

Tuesday, February 26th, 2019

Yesterday, the United States Senate couldn’t muster enough votes to pass a bill banning infanticide. Yes, you read that correctly. A practice that in a civilized society would be unthinkable has become the latest bastion of pro-abortion dogma.

Here’s what happened. The Born-Alive Abortion Survivors Protection Act (S.311) was brought to the floor of the Senate by its sponsor, Sen. Ben Sasse of Nebraska. Because of the procedural rules of the Senate, it needed 60 votes to close debate (to end a purely theoretical filibuster). Everyone understood that this was not just a procedural vote, but was really a substantive vote on the bill itself. So a “yes” vote was to ban infanticide, and a “no” vote was against it.

In a normal world, a bill like this would pass unanimously. But that’s not the world we live in. Instead, the bill only got 53 votes. Every Democrat except three voted against it.

It’s particularly interesting to note what some of the Democrats said about the bill. Here’s Sen. Mazie Hirono of Hawaii: “That is the actual intent of this bill, reducing access to safe abortion care would threaten the health of women in Hawaii”. Sen. Jeanne Shaheen of New Hampshire called the bill “the latest salvo in the far-right wing assault on a woman’s constitutionally protected right to an abortion”. Sen. Tim Kaine of Virginia said that the bill is unnecessary since there’s already a federal Born Alive Infant Protection Act. And our own inimitable Sen. Chuck Schumer (who is also the Minority Leader) said that the bill “is carefully crafted to target, intimidate, and shut down reproductive health care providers.”

Strikingly, none of the Senate Democrats gave even passing recognition that what we are talking about is a living, breathing human being who has already survived the abortion and is completely outside of her mother’s body. She is at a very vulnerable state in life, completely dependent on others for the means to continue living. Instead of showing even a modicum of compassion, they have completely dehumanized that baby, all in defense of an unlimited right to an abortion. Correction — an unlimited guarantee of a dead baby.

It never ceases to amaze me to see the amount of ignorance, misinformation, and duplicity that comes out of the mouths of public officials. Let’s start with looking at the key parts of what the bill actually says:

§ 1532. Requirements pertaining to born-alive abortion survivors

“(a) Requirements for health care practitioners.—In the case of an abortion or attempted abortion that results in a child born alive:

“(1) DEGREE OF CARE REQUIRED; IMMEDIATE ADMISSION TO A HOSPITAL.—Any health care practitioner present at the time the child is born alive shall—

“(A) exercise the same degree of professional skill, care, and diligence to preserve the life and health of the child as a reasonably diligent and conscientious health care practitioner would render to any other child born alive at the same gestational age; and

“(B) following the exercise of skill, care, and diligence required under subparagraph (A), ensure that the child born alive is immediately transported and admitted to a hospital.

So it explicitly states that it only applies if a baby is born alive and the abortion is over. All it requires is that the doctor give the baby ordinary health care, the same care that would be given to any other patient. Perhaps I’m blind, but I’m not seeing anything “carefully crafted” to have any effect whatsoever on the health of the mother, access to abortion, intimidating abortionists, or shutting down clinics. Only through the bizarre lens of abortion ideology can anyone see such things.

You would also expect federal lawmakers to understand the basic nature of federalism. The federal Born Alive Infant Protection Act (Pub.L. 107-207) redefined the term “person” in federal statutes, regulations and administrative acts to include “every infant member of the species homo sapiens who is born alive at any stage of development”. The emphasis there is on the word ” federal“. That definition has no effect on state laws, which oversee virtually all abortions that take place in the United States. So it provides no protection to children born alive unless they’re lucky enough to be born on a military base or a VA hospital. This new Born-Alive Abortion Survivors Protection Act was specifically designed to expand the protections of that earlier law to include everyone, everywhere.

And here’s the thing that tells us a lot about where we are in our country, and where the Democratic Party has gone. The Born Alive Infant Protection Act passed both houses of Congress in 2002 virtually without opposition. It passed the House by voice vote and in the Senate by unanimous consent. Obviously, a lot has changed since then. Banning infanticide is no longer something on which there is a political consensus. That’s how far the Culture of Death has advanced.

One good thing may be coming from all of this. The abortion extremism that we’re seeing in actions like this, along with the passage of the New York abortion expansion bill and the movement on similar bills, is starting to have a positive effect on the culture. A new poll from Marist College, sponsored by the Knights of Columbus, shows that there has been an increase in the number of people who call themselves “pro-life”. The poll also showed that the vast majority of Americans (71%) oppose late-term abortions, including majorities of Democrats and independents, and that only 18% believe that abortion should be legal up until birth.

The poll didn’t ask how many people thought that babies born accidentally after an abortion should be left to die without receiving basic health care — maybe because until a few weeks ago it was unthinkable that anyone would believe that. Not only is it no longer unthinkable, it’s now the law in New York and the pro-abortion movement is obviously fully committed to making it legal everywhere.

The unthinkable has become the new pro-abortion dogma.

Legalizing Baby Selling

Wednesday, February 20th, 2019

The recent abortion expansion bill isn’t the final word on how our state government views babies to be commodities that can be bought, sold, or discarded. The Governor, when he submitted his annual budget last month, snuck in a bill that would legalize commercial surrogate parenting. That is to say, it would legalize baby-selling.

Way back in the 1990’s, when our present Governor’s father was in that office, New York State was a leader in banning commercial surrogacy. That move stemmed from the controversy over “Baby M”, a child conceived through surrogacy in New Jersey. Governor Mario Cuomo and the Legislature followed the unanimous recommendation of the Task Force on Life and the Law and banned the practice here in New York. It was clearly seen as an exploitation of women and degrading to human life.

But now the current Governor has broken with his father and has managed to get the Task Force on Life and the Law to reverse their earlier recommendation. Nothing has really changed. The dangers of surrogacy are still just as real as they were in the 1990’s, as a powerful minority report from Task Force members pointed out. But the majority of the Task Force was moved, it seems, by the desire to open up parenthood to same-sex couples. This is a terrible example of how a special interest group can influence public officials who are more concerned with counting votes and rewarding supporters, regardless of the dangers to the common good.

Those dangers are self-evident from the way that commercial surrogacy works. A contract is agreed upon between “intended parents” and the “gestational carrier”. The “carrier” is not related to the “parents”, and she will become pregnant with an embryo that has been created in a laboratory through in vitro fertilization (IVF). The egg and sperm aren’t necessarily from the intended parents — they can come from complete strangers.

The standard surrogacy contracts impose all sorts of obligations on the “carrier”, and there is a severe penalty if she doesn’t comply — if she violates any provision, she forfeits any payment under the agreement and has to reimburse the “parents” for any of their expenses. This could entail tens of thousands of dollars in penalties and lost income. Talk about coercion.

The contract specifies that the “carrier” will completely relinquish all parental rights upon the birth of the child. It also gives the “parents” the power to control virtually every aspect of the “carrier’s” life, subjecting her to medical oversight by a doctor chosen by the “parents” and restrictions on her activities, including, believe it or not, her sexual activities with her husband.

Even worse, the contract gives the “parents” complete discretion over whether the “carrier” will have an abortion, if the “parents” decide that the unborn child has a disability, or if it is a multiple pregnancy and they want to “reduce” the number. It is hard to believe, but it’s true — the “carrier” must submit to an abortion or pay a substantial financial penalty.

Funny how we’re not hearing the Governor shout about “her body, her choice”.  Instead it’s “have the abortion or pay up”.

The economic imbalance of these arrangements should cause outrage among supposed “progressives” and feminists. Low-income women are certainly going to be more attracted to enter into these contracts, and the costs of IVF and the surrogacy arrangement ensures that only high-income people could afford to be “intended parents”. The minority report of the Task Force did the math, and found that the average “carrier” would be earning below minimum wage for her efforts. So much for the “progressive” commitment to economic justice and ending inequality.

Our current laws still ban selling bodily organs, selling of babies, paying people to surrender parental rights, we set limits on payments to mothers giving children up for adoption. But this bill would shatter that consensus. I doubt it will stop here.

In other times, this would be seen as an appalling example of indentured servitude or even slavery, treating mothers and children as commodities to be bought and sold. Most countries, including all of Europe, have banned it as a violation of fundamental human rights. Developing countries have outlawed it because they don’t want their women being treated as mere incubators for rich Western “fertility tourists”. But here in the moral free-fire zone of America, it’s a supposedly enlightened practice celebrated by the media and vigorously promoted by gay rights groups.

By including this bill in his budget, the Governor has corrupted the democratic process through a raw exercise of power. In our dysfunctional governmental process, it is extraordinarily difficult for an item in the budget to be removed by the Legislature. And given the influence of “progressives” and gay rights groups in the Democratic party that controls the Legislature, there appears to be little interest in removing or even debating this dangerous proposal.

We can still try to hold back this measure, by contacting our legislators and urging them to oppose legalizing baby-selling. The New York State Catholic Conference has been leading this fight, and they have an alert in their Action Center that will allow us to send emails to our representatives. We also have more information on our website about the dangers of commercial surrogacy.

With this bill, as with the abortion expansion law, the Governor has also sent a signal to the world that in New York, morality is obsolete. There is no apparent concern for the exploitation of poor women. None for the babies thrown away through economically-coerced “fetal reduction”. None for the “excess embryos” trapped in frozen limbo through IVF. None for the children who will be separated from their birth mother and perpetually confused by the question of who their parents really are.

Powerful, influential and wealthy people want to buy babies, and our state government is going to open up the market place.

No Justice for Unborn Victims

Monday, February 11th, 2019

The falsehoods about the radical new abortion law keep coming, only now they’re highlighted by an unspeakable tragedy.

Last week, in Queens, a man brutally attacked his girlfriend who was five months pregnant. He clearly targeted the unborn child in her womb, and the result was that the mother and child both died. Prosecutors first sought to bring charges against the man for criminal abortion, as well as for murdering the mother. But thanks to the Governor’s abortion expansion bill, the crime of abortion no longer exists in New York, so there will be no justice for that poor unborn child who was brutally killed.

This should shock the conscience of everyone. 38 states, the District of Columbia, and the federal government already authorize a criminal prosecution for killing or harming an unborn child. New York is the outlier on this — even super-liberal California has a law that protects unborn children from violence. But not here. We’re the radicals now.

Abortion advocates display either appalling ignorance or disingenuousness when they reply to the outrage over the new law’s decriminalization of murder. For example, one of the sponsors of the Reproductive Health Act recently opined that “Physical assault resulting in the loss of pregnancy qualifies as first-degree assault”.

Do they even read the law before making those kinds of ridiculous statements? The offense of Assault in the First Degree, Penal Law 120.10, requires that “serious physical injury” be caused to a “person”. Since an unborn child is not a “person” in New York law, you would have to prove that the assault caused that kind of grave injury to the mother. But there’s no way that a forced miscarriage could possibly qualify under the definition of “serious physical injury”. Penal Law 10.00(10) defines that as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.”

You don’t have to be a lawyer to see that an attack on an unborn child doesn’t fit that definition. So it’s no accident that there is no reported case of any prosecutor in New York ever bringing a charge like that for an attack on an unborn child. That’s because the bill sponsor’s claim is nonsense, and she just doesn’t want to admit the fatal flaw in her bill.

It also isn’t good enough to say that “oh well, he’ll be prosecuted for murdering the mom so that’s enough punishment”. Would it be enough to say that the Parkland murderer should only face one charge, instead of being held responsible for killing each and every one of those children? Or should we now revise the 9/11 memorial in lower Manhattan to erase the unborn children who died in that attack? Aren’t those children mourned by their parents and relatives just as much as anyone else who died?

Not only that, but there are many instances where an assault on the unborn child results in no injury to the mother, but death to the child. Just last year, a doctor was sentenced to 20 years in prison for using an abortion pill to cause the death of an unborn child. A quick Google session found several other instances in the last few years in which a man secretly gave a pregnant woman the abortion pill in an effort to kill the unborn child. One of them took place right here in New York in 2014.

None of these men could be prosecuted in New York now, because the pills didn’t cause any kind of injury to the mother. So these kinds of criminals are now being given a free shot at hurting or killing an unborn child — one who is wanted by her mother.

Fixing this should be a ground ball. It has nothing to do with affecting legalized abortion in any way. Every version of an Unborn Victims of Violence Act that’s been offered here in New York makes that clear. The amendments that were offered before the Reproductive Health Act was passed also made that clear. But the pro-abortion ideologues who pushed the Governor’s bill are unwilling to budge an inch from their refusal to recognize any intrinsic value in the life of an unborn child. For goodness sake, even Roe v. Wade recognized the legitimate state interest in protecting the life of an unborn child, particularly after viability. Why can’t the pro-abortion movement even give a bit of legal recognition and protection to babies that are wanted by their mothers?

That voice you hear is from a baby who was brutally killed in her mother’s womb in Queens. She cries out to God for justice. There is none for her in New York.

The Truth About Late Term Abortions

Wednesday, February 6th, 2019

In the wake of the passage of the abominable Reproductive Health Act here in New  York, and the move to pass similar bills in Virginia, New Mexico and Rhode Island, abortion advocates and apologists have turned on the fog machine to hide the truth. That’s because the truth is horrifying.

They have been claiming that late-term abortions are rare, that they are only done for desperate reasons like imminent fetal demise, that the bills do not legalize abortion up until the moment of birth, that a live birth in the course of an abortion never happens, and that in any event that would not constitute infanticide.

All of these claims are false.

According to a study from the pro-abortion Guttmacher Institute, approximately 1.3% of all abortions are done after 21 weeks. Since they estimate the total number of abortions to be about 900,000, that means that every year, about 12,000 abortions take place after the time that a child can feel pain and has a chance to live outside of the womb. Can something that happens as much as 12,000 times a year be called rare?

Let’s put that in context. There were about 14,000 firearm homicides in the US in 2016, according to the CDC. I doubt that anyone considers gun violence to be “rare”. Consider also that there were 35 people killed in school shootings in the United States in 2018, and that is typically called an “epidemic” or a “wave” in the media. There were about 350 people killed in 2018 in what are called “mass shootings” (incidents that involve multiple victims).

All of these acts of violence are deplorable tragedies that get a great deal of media attention. But the 12,000 late-term abortions are invisible by comparison. They’re not “rare”. They’re being ignored.

Late term abortions are also not being done only in the so-called “hard cases” of severe fetal disability or to preserve the mother’s life or health. The pro-abortion Guttmacher institute published an academic study in 2013 that concluded this: “data suggest that  most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment”. Rather, the most common reasons for delaying until the third trimester were not recognizing the pregnancy, difficulty in making the decision to abort, disagreeing with the father of the child, not knowing where to get an abortion, difficulty getting to an abortionist, and financial difficulties.

This is not to minimize the struggles of the women who have late-term abortions, or those who are facing the tragedy of adverse diagnoses of their baby. But let’s make sure we’re telling the truth — most late term abortions have nothing to do with “hard cases”, they really are just delayed birth control. And this new law permits that and does nothing to prevent it.

As for whether the RHA legalizes abortion up until birth for pretty much any reason, all you have to know is how the Supreme Court defines “health of the mother”, which is one of the acceptable reasons for a late abortion under the law. It’s defined as “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient” ( Doe v. Bolton, the companion case to Roe v. Wade). There is nothing that wouldn’t fit within that definition, especially since the decision is made between the mother and the doctor who’s been hired to kill the baby.

The idea of a baby being born alive during the course of a late-term abortion has also been derided. But academic studies from Europe have estimated that the number of children who survive an abortion after 23 weeks is almost 10%, and the number rises the later the pregnancy progresses. Since there’s no reason to think that we’re any different from Europe, that means that as many as 1200 babies may be born alive in the United States during the course of a late abortion – babies that could potentially survive with basic medical care.

One study revealed that some babies born after a post-22 week abortion lived as long as 270 minutes, with a median of 66 minutes.  The studies show that such babies are routinely abandoned to die of neglect, often suffering in pain as they struggle to continue living. And this could be going on in hospitals where, right down the hall, heroic efforts are being made to save preemies in the neo-natal intensive care unit.

This is infanticide by any reasonable definition of the word. In the ancient world, it was common practice to kill unwanted children by exposure — leaving them out in the open to die. It is just as much a murder to leave a helpless child to die without ordinary medical care as it is to strangle her or dismember her. One of the great social accomplishments of Christianity in its first few centuries was the eradication of this abhorrent practice. We are reverting to barbarism.

We often read heart-breaking stories of children who die of neglect by their parents. Those stories are usually front-page news and result in calls for drastic legal reforms and interventions. The aborted live babies die in silence, ignored and invisible.

There’s no doubt that we will continue to see op-eds in the Times by the Governor and other pundits, “fact-check” articles put out by major media outlets, and “spin” being  pitched by TV talking heads. But the truth about late-term abortion is out there, and it really is horrific.

Here’s What the New Abortion Law Really Says

Wednesday, January 30th, 2019

We are frequently questioned or challenged to substantiate the arguments that we have been making about the effect of the Reproductive Health Act. People keep asking us to show them “where in the bill does it say that”?

Here is a detailed explanation of how the bill (now the law) does precisely what we have accused it of doing. The language of the bill is in italics, followed by the legal analysis.

§ 2599-aa. Policy and purpose. The legislature finds that comprehensive reproductive health care is a fundamental component of every individual’s health, privacy and equality. Therefore, it is the policy of the state that:

1. Every individual has the fundamental right to choose or refuse contraception or sterilization.

2. Every individual who becomes pregnant has the fundamental right to choose to carry the pregnancy to term, to give birth to a child, or to have an abortion, pursuant to this article.

The term “fundamental right” is extremely significant. This language incorporates the constitutional law principle that “fundamental rights” cannot be regulated except for compelling state interests and in the most narrow way possible. Virtually no regulations of abortion survive this “strict scrutiny” standard.

3. The state shall not discriminate against, deny, or interfere with the exercise of the rights set forth in this section in the regulation or provision of benefits, facilities, services or information.

This language poses a direct threat to religious freedom and conscience rights. It gives the state the authority to deny licenses to individuals and institutions that do not provide or cooperate with abortion.

§ 2599-bb. Abortion. 1. A health care practitioner licensed, certified, or authorized under title eight of the education law,

To understand the significance of this, you have to understand that the Education Department oversees all the licensed professions like doctors, physician assistants, nurses, and others. So this provision authorizes the Education Department to permit non-doctors to do abortions and to set the limits on what they can do. So it’s entirely in their discretion to allow non-doctors to do surgical abortions like early suction aspiration abortions – where a vacuum is inserted into the womb and the baby is sucked out, often being dismembered in the process of being killed.

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:

This means that the application of this law is entirely in the discretion of the abortionist. Since there are no penalties for violating the law, this standard is meaningless.

the patient is within twenty-four weeks from the commencement of pregnancy, or

This means abortion on demand for any reason at all for the first twenty-four weeks of pregnancy, including times when the infant has a heartbeat (about eight weeks), and can feel pain (about twenty weeks).

there is an absence of fetal viability, or

This term is undefined in the law, meaning that it is entirely up to the abortionist to determine the application of the law, with no third party (e.g., another doctor) having to concur. The doctor can therefore decide that an infant isn’t “viable”, for example, because she has a developmental problem that would require medical treatment for her to survive – in other words, virtually any kind of disability.

the abortion is necessary to protect the patient’s life or health.

This is the heart of the matter. This term “health” has been defined by the Supreme Court as meaning “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient” ( Doe v. Bolton, the companion case to Roe v. Wade). In effect, it means any reason whatsoever, if the woman and the abortionist consider it relevant to her emotional or psychological or family health. Notice also that the bill considers only the mother to be a “patient”. The unborn child is a target.

§ 3. Section 4164 of the public health law is REPEALED.

This provision repeals the law that gave full civil rights protection to a child born accidentally in a post-twenty-week abortion, required that such abortions be done in a hospital, and that a second doctor be available to provide care to the infant. By repealing it, the bill guarantees that the infant will receive no care and will be allowed to die untreated. After all, the infant isn’t the doctor’s patient – just the mother. And the doctor has no obligation to provide treatment that he considers futile. And in the end, the entire purpose of the abortion is to produce a dead baby, so this part of the bill guarantees that.

§ 5. Sections 125.40, 125.45, 125.50, 125.55 and 125.60 of the penal law are REPEALED

This provision repeals all the criminal statutes that would penalize illegal abortions. It thus would prevent a serious criminal prosecution for a direct attack on the unborn child, an abortion by an unlicensed person (the “back-alley” practitioner), and a coerced abortion.

Many of the advocates for this bill – including the Governor and other elected officials – continue to spread falsehoods and deny what it really does. So let’s turn the question around on them. Take our worst-case scenarios, and ask, “where in the bill does it prohibit that?” The fact is, there is absolutely nothing in the bill, or the state of the law after its enactment, that would prohibit any of these following things.

  • Abortion up until the moment of birth for any reason – because of the broad definition of “health” that could include virtually anything the mother and the abortionist want it to mean.
  • Non-doctors doing surgical abortions (e.g. vacuum aspirations) – because it repeals the physician-only provision of the old law and leaves it entirely up to the Education Department to decide who can do abortions.
  • Pharmaceutical abortions prescribed online (the term is “telemed”) – again, because the scope of practice of the abortionist is entirely in the discretion of the Education Department.
  • New York becoming an abortion destination – because we will be one of the few states in the nation that permits late-term abortions for any reason without any regulation.
  • Aborting an infant with a disability who would need medical care to survive out of the womb – because of the vagueness of the term “viability”, and also because of the broadness of the term “health”.
  • Not treating an infant born alive accidentally – because it repealed the law that granted legal protection to such children, and because abortionists are not going to treat the child that they were in the process of killing in the womb moments earlier.
  • Prosecutions of non-licensed persons performing abortions (the old “back-alley” abortion) – because prosecuting the offense of practicing medicine without a license is up to the discretion of the Education Department and the Attorney General, and it’s very unlikely that New York’s staunchly pro-abortion government is going to do much about this.
  • An attack on an unborn child that does no harm to the mother but causes a miscarriage – because the unborn child is not a “person” under our law, the only possible crimes to prosecute might be misdemeanor assaults on the mother, a woefully inadequate remedy for such a heinous offense.

Much has been made of the idea that this bill only “codified Roe v. Wade“. But here’s what the Supreme Court actually said in Roe:

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion

This new law rejects the idea that the state has any interest whatsoever in protecting the life or health of an unborn child at any stage, much less the time when the baby can survive outside of the womb. That is a gross dereliction of one of the fundamental duties of any government, and it marks a return to barbarism.

That’s what the law says.  It is perverse to claim otherwise.

The Battle is Far From Over

Friday, January 25th, 2019

The catastrophic enactment of the Reproductive Health Act has left pro-lifers, both in New York and beyond, feeling numb, angry and dispirited. The bill legalizes abortions up until the moment of birth, allows non-doctors to do abortions, removes any legal penalty for a domestic violence attack against an unborn child, and eliminates protections for babies born accidentally in an abortion. Perhaps the better name for the law is the “Guaranteed Dead Baby Act”.

It was the most devastating defeat for the pro-life cause in New York since the original legalization of abortion in 1970 and the failure to repeal the law in 1972. It came at the end of twelve years of fighting, in which we were able to hold off the passage of various versions of the law, including one specifically drafted by the Governor’s office and slipped into his budget. But after last fall’s election, which swept away the GOP control of the Senate, the passage of the bill was foreordained.

We never gave up – our bishops issued strong statements of opposition, we sent information to our parishes, our allies in the Evangelical churches fought hard, and about 40,000 emails were sent to the Legislature through the Catholic Conference’s Action Center. But elections have consequences. If it wasn’t clear before, it certainly is now. This is what happens if Catholics, other Christians, and all good people fail to make life a priority in their voting decision. And that means voting only for pro-life candidates and refusing to vote for anyone who favors legal killing of unborn children.

The injury was compounded by the insult of Governor Cuomo’s celebratory mood, climaxed by his decision to have state facilities lit up in pink to mark the passage of the bill. The obscenity of that decision is best seen in the lighting of the Freedom Tower’s pinnacle in pink. Remember, the Freedom Tower is built on a grave – the last resting place for the victims of 9/11, which included several unborn children. Every day in the United States, more children are aborted than the number of people who were murdered on 9/11. The Governor took a war memorial that belongs to all Americans, and perverted it into a beacon of the Culture of Death.

But the battle is far from over. The pro-abortion advocates who pushed for this horrific bill are powerful, rich and arrogant. They think we’re going to give up or that they can force us to conform, but they’re seriously mistaken. We will never stop working to create a Culture of Life and Civilization of Love. So what do we do now? Here are some thoughts.

The real question of abortion is not up to any legislature or governor. It will be decided one pregnancy at a time. The pro-abortion message relies on fear of all kinds — losing autonomy or lifestyle, the opposition of families, abandonment by the baby’s father, and so on. Every pregnant woman’s situation is unique, and we must be ready to respond to them as individuals, not as puppets in a political theater, and help them through their fears to hope and joy.

This is where our pregnancy assistance programs are so important. We clearly need to make a massive new investment in supporting pregnant moms and post-natal moms and babies. We have many great pregnancy support initiatives. One example is the wonderful Mother Theresa Home in Buffalo. Another is the Visitation Mission of the Sisters of Life. There are many, many more.

These pregnancy centers are in the cross-hairs of the pro-abortion movement, which desperately wants to shut them down. After all, they can’t handle it if women actually hear the truth and feel the love of people who will support a decision for life. The Supreme Court recently upheld the free-speech rights of  pregnancy centers, but they didn’t resolve the issue definitively. We expect further legislative and enforcement threats to the centers, so we have to be ready to defend them.

That leads to another key issue – the protection of religious liberty and conscience rights. Our resistance to abortion is grounded in the truth. We can never compromise with lies, and we can never permit anyone to force us to accept them. New York already has robust anti-discrimination protections for people who oppose abortion for religious or moral reasons. But people don’t know their rights and the government isn’t going to tell them. A major publicity campaign has to be undertaken to ensure that people know that they don’t have to knuckle under to the pressure to cooperate in abortion, and that they can’t be punished for their religious beliefs. This can lead to a wonderful legal irony – filing complaints and making our hostile state and local governments enforce the anti-discrimination laws to protect us.

We also have to keep our eyes open for the next big pro-life battle front – this time, at the other end of life. We are not a one-issue movement that only cares about abortion. There is a serious, well-funded and relentless effort to legalize assisted suicide and euthanasia, and they have set their sights on New York. This battle has been going on for a while, but it’s going to move to center stage now.

This is a spiritual battle, not just against political adversaries but against the powers and principalities (see Eph 6:11-18). On the anniversary of Roe v. Wade, the Cathedral of St. Patrick was filled for a Holy Hour and Mass for life. The Holy Spirit uplifts us, even in our dark hours, and nothing can prevail against Him. We have to convert our anger against this bill and its supporters into prayer. Remember what Jesus told us: “In the world you have tribulation; but be of good cheer, I have overcome the world” (John 16:33).

The rich and powerful people in our society like to call themselves “the resistance” because they oppose the President and march wearing silly hats. But they’re just oligarchs in exile who want to recapture power. We are the real resistance. Our goal is not power, but conversion of heart for those who are appalled by injustice. Our message is “come, join us”, and not “we will force you to agree”. The most important tactic is our willingness to testify to the truth by our words and our actions, and our refusal to cooperate with injustice and lies.

We are in the epicenter of the Culture of Death, so if anyone really wants to fight it, this is the place. It’s easy to be pro-life in the deep red states, where they’ve already enacted every pro-life law imaginable and there are few abortion clinics. If you want to go where the action really is, come to New York.

We will never give in to the Culture of Death. We need to keep on our lips the brave words of the prophet Daniel when he stood up against the powerful people who wanted him to conform: “Be it known to you, O king, we will not serve your gods or worship the [pink] image which you have set up” (Daniel 3:18). Amen to that.

Can We Talk About War?

Monday, December 3rd, 2018

At today’s Mass, we heard Isaiah’s famous lines about the coming kingdom of God and the reign of the Messiah:

He shall judge between the nations,
and shall decide for many peoples;
and they shall beat their swords into plowshares,
and their spears into pruning hooks;
nation shall not lift up sword against nation,
neither shall they learn war any more. (Is 2:4)

So can we talk about war and peace in this age of ours, two thousand years after the coming of the actual Messiah?

We just survived a long and grueling national election campaign in what was called, with typical political hyperbole, “the most important election of our lives”. I follow politics pretty closely. I don’t recall much, if any, talk about war and peace during this allegedly monumental campaign. How strange, considering:

  • The United States is currently in our seventeenth year of war — by far, the longest period of war in our history — with no end in sight.
  • We are currently involved in armed conflict in seven countries: Afghanistan, Iraq, Syria, Lybia, Yemen, Somalia, and Niger. Our soldiers may also be involved in secret combat operations in several other African counties. We have combat troops and active military bases in many more nations as well.
  • The Defense Department estimates the cost of the wars in Iraq, Afghanistan and Syria at $1.5 trillion. The monthly cost is about $3.4 billion. Other estimates, which include projected future costs for veteran health care, have been as high as $5.6 trillion.  By way of comparison, the annual defense budget is about $700 billion.
  • The human cost of the wars — according to one estimate from Brown University, approximately 500,000 people have died in these wars, including about 6,300 US military members and contractors. This doesn’t include people who died due to indirect results of the conflicts or the millions of people who have been displaced from their homes.

There are many policy arguments we can have about the legitimacy and conduct of these wars. But our nation hasn’t had that discussion, and virtually none of our public officials seems interested in having it — on all sides of the political spectrum. It is truly bizarre, in a democratic nation at war, that it isn’t even on the political radar. Are these wars worth the cost? What policy goals are they pursuing? Are we doing more harm than good? Can those goals be achieved by other, non-military means? Aside from ritual incantations about “support the troops”, the silence is perplexing and troubling.

Can we also talk about the legality of the wars? Since Congress hasn’t declared war on anyone, the only legal leg for these wars to stand on is the Authorization for the Use of Military Force Resolution, passed by Congress in the immediate aftermath of 9/11. That resolution provides that “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons…” Three Presidential Administrations have interpreted this to permit military operations against forces that not only had nothing to do with 9/11, but didn’t even exist at that time. The last Administration proposed an amended AUMF, but efforts by some Senators and Congressional representatives to open a debate about it have been consistently stymied by the leadership of both houses. Can we at least talk about this?

There have also been credible charges that war crimes and crimes against humanity are being committed in the Yemen war by Saudi and allied forces. America supports their war effort with intelligence and material, raising the question of whether the US is complicit in those crimes. There have been attempts recently in Congress to end US support for that war, but there is little hope that they will succeed. Is anyone talking about this?

It is vitally important that we have a serious debate about this. For pro-lifers, this is a critical issue. God cherishes every human life, regardless of nationality. We cannot be consistent or coherent in our defense of life unless we defend life everywhere. For Catholics, the need for the debate, and for our unique faith-based contribution, is even more essential. The Church has long been an eloquent advocate for peace. Pope Benedict and Pope Francis have been salient voices for an end to armed conflict. In his last Message for the World Day of Peace in 2013, Pope Benedict said,

[T]he Church is convinced of the urgency of a new proclamation of Jesus Christ, the first and fundamental factor of the integral development of peoples and also of peace. Jesus is indeed our peace, our justice and our reconciliation (cf. Eph 2:14; 2 Cor 5:18). The peacemaker, according to Jesus’ beatitude, is the one who seeks the good of the other, the fullness of good in body and soul, today and tomorrow. From this teaching one can infer that each person and every community, whether religious, civil, educational or cultural, is called to work for peace. Peace is principally the attainment of the common good in society at its different levels, primary and intermediary, national, international and global. Precisely for this reason it can be said that the paths which lead to the attainment of the common good are also the paths that must be followed in the pursuit of peace.

In this Advent season, we listen to the Prophet Isaiah and the other prophets in their longing for the coming of the Kingdom of God and the Prince of Peace. We have to remember that these are not just pious sentiments about “pie in the sky” someday in the distant future. Working for peace in our time is an essential part of the Gospel message of redemption, and is a specific obligation for every Christian to work tirelessly for it. We cannot stand by and do nothing while the world burns. We need to talk about war.