Posts Tagged ‘Abortion’

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.

When Ignorance and Arrogance Collide with Truth

Thursday, May 9th, 2019

There is an expression (oddly enough, coined by the heavy metal band Mettalica) that “ignorance and arrogance go hand in hand”. When those two fellow-travelers collide with truth, it can produce a moment of exceptional clarity.

First, the truth. Last Saturday, thanks to Focus on the Family, an extraordinary event took place in Times Square — a pro-life rally. The mere occurrence of the rally was remarkable enough. But what made the day truly special was the climax of the event. Thanks to the amazing technology of 4D sonography, live pictures of a baby in her mother’s womb were broadcast to the thousands present in New York and many more watching online.

You can’t get more of the truth than this. Before the age of science, people could have professed ignorance about what is going on inside a mother’s womb. But now the truth is right there before our eyes, available to anyone with an open heart or mind.

Alas, we must move on to the ignorance. Only two days after the unequivocal display in Times Square, there was a spectacle on television that truly shocks the conscience. Old-time New York politico and current abortion shill Christine Quinn actually made the following statement: “When a woman is pregnant, that is not a human being inside of her.”

Yes, you read that correctly. A human being who managed to emerge from her own mother’s womb, and who otherwise gives every appearance of being educated and intelligent, failed Biology 101 and Common Sense 101 on world-wide television. This is far beyond the point of arguing about the legal concept of “personhood”, or about whether the child is “wanted” or has some kind of “defect”, or what effect the child will have on her mother’s life. This can only be attributed to an act of willful ignorance, driven by an ideology that cannot bear to recognize even the basic humanity of an unborn child and that has created an implacable enmity between  mothers and their children.

An ideology that is so deeply rooted in the denial of reality is a very dangerous thing, particularly to vulnerable human beings whose lives hang in the balance. It is no wonder that pro-abortion advocates are becoming more and more extreme and more and more angry — the persistent denial of reality can’t help but cause great mental distress to them.

And so we must speak of the arrogance. The other day, a federal judge in Virginia — the kind whom I often refer to as a Black-Robed Platonic Guardian Ruler on the Bench — struck down a law that required that only doctors could do abortions. This is truly breath-taking, for many reasons. It is bad enough that anyone would be foolish enough to think that a surgical procedure or the prescription of potentially dangerous drugs should be done by a non-doctor. Our abysmal State Legislature and Governor have already gone that far off the deep end. It is even worse that an unelected judge would be so bold as to overturn a validly-enacted provision that has been the law of the jurisdiction for decades. We truly are far past the point of what Thomas Jefferson warned about when judges arrogate absolute power to themselves — “the despotism of an oligarchy”.

But perhaps the worst thing is that this one single federal judge saw fit to ignore two specific Supreme Court decisions that explicitly upheld the authority of legislatures to limit abortions to doctors only ( Planned Parenthood v. Casey and Mazurek v. Armstrong). It is clear that in the eyes of the Imperial Judiciary, no law regulating abortion is safe from being erased, no matter how old or sensible it might be, and no matter how unambiguous the judicial precedent. A long time ago, in dissenting from a Court decision that eviscerated the First Amendment to protect abortion clinics, Justice Antonin Scalia said this: “Today’s decision… makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion” ( Madsen v. Women’s Health Center).

Many pro-lifers hold on to a cherished belief that if only people knew the truth about what abortion really is, they will change their heart and mind and reject it. That truth was on display in Times Square for all to see. Christine Quinn and other abortion advocates are able to see that truth any time they want. Federal judges, too, are not barred from finding the truth.

But ignorance and arrogance are very deeply seated in the contemporary legal and political ideology. We must remember that “we are not contending against flesh and blood, but against the principalities, against the powers, against the world rulers of this present darkness, against the spiritual hosts of wickedness in the heavenly places” (Eph 6:12). Cardinal John O’Connor, the great pro-life hero, was very wise in saying that when it comes to the pro-abortion mindset, we need to heed the words of Jesus about why the Apostles could not cast our a particular demon: “this kind never comes out except by prayer and fasting” (Mt 17:21).

So we must keep proclaiming the truth about the reality of abortion and of the humanity of unborn human beings. But we must also pray and fast for a spiritual renewal and conversion of heart for those who are in the grips of the demonic pro-abortion ideology that has produced so much ignorance and arrogance — and that has cost so many lives.

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.

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.

On the Precipice of Abortion Expansion

Thursday, January 10th, 2019

With the beginning of the new session of the New York State Legislature, we are now on the verge of having the most radical and extreme abortion law in the United States, if not the world. It’s the latest version of a bill that we have been fighting against for over a decade, the “Reproductive Health Act” (S.240/A.21). It’s more aptly called the “Abortion Expansion Act”.

The leaders of our Legislature, thanks to the wide majority of newly-elected Democrats, are totally committed to passing this bill as soon as possible. The Governor, whose appetite for abortion expansion seems to have no end, has pledged to have it pass this month and has even gone so far as to promise to have the New York State Constitution amended to enshrine abortion as a basic right. Barring a miracle, the bill will be signed into law later this month.

How much more abortion do our elected officials want? There were over 82,000 abortions reported in 2016 (the most recent official statistics). We already have highest abortion rate of any state —double the national average. Over 1,700 of these abortions took place at 20 weeks gestation or later – after a baby can feel pain. In over 2,600 abortions, the mother had at least five previous abortions. Do we really want even more of that suffering and death?

As New York is about to plunge even deeper into the Culture of Death, we must be very clear about what this bill would do:

It is designed to allow more late-term abortions — killing babies through all nine months of pregnancy.

The promoters of this legislation frankly admit that its main goal is to expand late-term abortion.  Current state law already permits abortions through 24 weeks of pregnancy for any reason whatsoever, but only after that if it is necessary to save a woman’s life.  This bill would permit a “health” justification for late-term abortions. But the term “health” has been interpreted by the Supreme Court to include pretty much anything related to a woman’s physical, psychological, emotional health, including things like age and economics.

In other words, it’s such a broad term that this bill will allow abortion for any reason whatsoever at any time during a pregnancy even up to the moment of birth.

It would allow non-doctors to perform abortions.

New York law right now is clear that only licensed physicians can do abortions. This bill would eliminate that requirement, by allowing the state government to permit other health care professionals to do abortions — which could include nurse practitioners, physician assistants, midwives, as well as other non-physicians. Let’s say that again so it’s perfectly clear — this bill would allow people to do surgical abortionswho haven’t gone to medical school, haven’t served as an intern, haven’t done a medical residency.

That’s how extreme this bill is. And that’s exactly the goal of the advocates — because so few doctors want to get involved in the grisly business of killing children, they want to expand the pool of potential abortionists.

It is designed to guarantee a dead baby.

Currently, New York law gives full legal protection to any child who might be born alive as the result of an abortion, which can happen during a late term abortion. It also requires that a second doctor be available during a late-term abortion to care to a child born alive. This bill would repeal these protections, leaving a child born alive at the mercy of the doctor and staff who were just minutes ago trying to kill her. We’ve seen how that turns out, thanks to the horrific Kermit Gosnell case from Pennsylvania.

How callous have we become that we are passing a bill that would permit – and even require – doctors to stand by and let a baby to die of neglect?

It will leave women and babies vulnerable to back-alley abortions and domestic violence.

This bill would completely decriminalize any kind of abortion. Currently, the crime of “abortion” is the only way to prosecute unlicensed abortionists, people who coerce women into having an abortion, and domestic violence attacks against pregnant women that are intended to harm the unborn child. These crimes happen all the time. Just last month a man in upstate New York was arrested after pushing his fists into the belly of a 26-week pregnant woman to try to cause a miscarriage. This bill would give him a free ride for such a heinous act.

At a time when violence against women is being given so much more scrutiny, how can our legislators be so blind as to pass such a bill?

It could compel health professionals and institutions to cooperate in abortions.

The bill declares that abortion is a “fundamental right,” and that the state may not “discriminate, deny or interfere with” this right. The result may be that doctors and other health providers may be required to perform or refer for abortions or risk losing their license to practice. This has happened in other countries and there’s no reason to think that it couldn’t happen here. Medical facilities, even religious ones, could be also be forced to allow abortions on site or risk fines, penalties, or loss of licenses.

So much for the “right to choose”.

What can we do about this?

First, please contact your legislator and urge them to reject this radical bill. The easiest way is to use the New York State Catholic Conference’s Action Center.

Second, we need to step up our efforts to support women who are pregnant and are at risk of choosing abortion. A wonderful example of this is the Sisters of Life Visitation Mission. We also need to reach out to the women who have had abortions and now need healing. Two great programs are the Sisters of Life Hope and Healing Mission and Lumina.

Third, we need to pray. For conversion of heart of our elected officials and advocates for abortion. For hope and support for pregnant women. For an increase in a culture of sexual purity and respect for the sacredness of every human life. For God to withhold his hand of judgment against our wicked society.

New York, and indeed our entire society, is on the precipice. In times past, society looked the other way when unwanted children were abandoned or killed. With this Abortion Expansion Act, we are reverting to a state of barbarism.

Abortion and Elections

Tuesday, November 13th, 2018

The election last week was a watershed event for the pro-life cause in New York. For the first time in years, the Democratic Party gained control of the Senate, giving it complete control of both houses of the Legislature and all of the State-wide offices, and also of appointments to the Court of Appeals and intermediate appellate courts.

Our blue state has gotten even bluer. This is the result of long-term trends, including the increased share of the Latino vote, the increased activism of young voters, growing numbers of people who do not practice any faith, and shifts in political views among college educated people (particularly women) and those who live in the suburbs. The deep unpopularity of the President was a major factor. No Republican has been elected to a state-wide office since 2002, and the likelihood of the GOP staging a significant comeback are bleak.

Why does this matter so much for the cause of life? Because the Democratic Party in New York has become the Extremist Pro-Abortion Party. The Governor ran a campaign that highlighted his support for a vast expansion of abortion under the guise of “codifying Roe v. Wade“. Remember, this is the man who once said that pro-lifers “have no place in the state of New York, because that’s not who New Yorkers are.” The new Democratic majority in the State Senate has promised to pass the Reproductive Health Act as one of their first priorities in the upcoming legislative session, and we expect more anti-life bills to follow — like discriminatory measures targeting pregnancy centers and mandated coverage of contraception and abortion in all health insurance policies.

Make no mistake. This is an extremist agenda. The reality is that New York already has one of the most liberal abortion laws in the nation, one that pre-dates Roe and which permitted thousands of abortions prior to Roe. Abortion is available on demand, for any reason whatsoever, at any time prior to 24 weeks of pregnancy, and afterwards if the life of the mother is at risk. Overturning Roe will have no effect whatsoever on that – the vast majority of abortions will still be legal in New York.

The official statistics tell the horrible story of abortion in our state. 86,627 abortions in New York State in 2015; 367 abortions per 1,000 live births (so over a quarter of all pregnancies in our state ends with an abortion); 505 abortions per 1,000 live births in New York City (so over a third of all pregnancies in the City ends with an abortion); 1,038 abortions per 1,000 live births for African-Americans in New York City (so there are more abortions than live births among African-Americans); 2,106 abortions in our state after 20 weeks, after the time when unborn children can feel pain. The current abortion regime in our state has decimated entire swaths of our population and has left millions in post-abortive pain. It is the very definition of a gross dereliction of duty by our government.

The legislation being promoted by the Governor and the Democrats would make things even worse. It would expand the availability of late-term abortions on demand; it would permit non-doctors to do abortions, including late-term abortions; it would virtually eliminate the ability of the State or local governments to regulate the practice of abortion; it would immunize from criminal prosecution any person who directly tries to cause the death of an unborn child (e.g., in a domestic violence incident); and it would eliminate the legal obligation to have a doctor on hand to care for a baby born alive after an abortion. That’s not a “pro-choice” bill, it’s the abortion industry’s dream list.

I am in the middle of reading the book Gosnell: The Trial of America’s Biggest Serial Killer. The recently-released movie is based on this book. It’s the story of how Kermit Gosnell was brought to justice, almost by accident, for running an atrocious abortion mill in Pennsylvania. The book is a harrowing read. The clinic was filthy, staffed by unprofessional morally depraved incompetents, and the patients were treated worse than animals. The doctor was a psychopath who kept body parts and intact dead babies as trophies of his work. He and his staff routinely and callously killed any baby born alive and threw them in the garbage. It is horrifying and stomach-turning reading.

The worst thing about the Gosnell case is that it was permitted to happen because of the pro-abortion ideology of the state government of Pennsylvania, who were criminally negligent in responding to complaints and inspecting the clinic. The “pro-choice” governor of that state made it clear that abortion clinics were off limits to government regulators. Gosnell was permitted to commit mass murder with impunity because of the complicit inactivity of the government.

Now that the Pro-Abortion Extremist Party is in full control of the New York government, the Gosnell case stands as a vivid warning of what may happen here. We’ve already seen the results of an abortion industry that has no accountability. We’ve seen videos of women being taken from clinics in ambulances due to complications from abortions, the State Health Department inspects virtually no abortion clinics, and they have never shut down an unlicensed clinic in recent memory. Neither the State government nor local law enforcement has been interviewing women who have been coerced into abortions, or who were the victims of sex traffickers or child rapists who were never reported by abortion clinics.

Elections obviously have consequences. Voters obviously were unaware of or indifferent to the current Culture of Death that exists in our state. St. John Paul, in The Gospel of Life, spoke of a “a war of the powerful against the weak” and a “conspiracy against life”. New York is deeply in the grips of this conspiracy. We need to become even greater prayer warriors, defenders of women who are vulnerable to abortion, and promoters of the truth of the beauty and dignity of every human life. We have powerful adversaries, and we have our work cut out for us.

The Truth is on Trial

Tuesday, October 9th, 2018

[On October 4, I was honored to receive the Great Defender of Life Award from the Human Life Foundation. The following is the text of my acceptance address.]

As we’ve all seen in recent weeks, one of the greatest challenges of our time is that the truth is on trial. We’ve heard that we live in a post-truth and post-moral society. But nothing could be more dangerous than to fall for the pernicious lie that there is no such thing as objective, eternal moral truth.

We see this all around us. Academia has long peddled the idea that “everything is relative”, and that we can define our own “truth”. In the public square we see the truth subordinated to political ends or distorted by “spin” and ideology. I don’t have to cite specific examples. Just pick up the newspaper.

We can see this in the sufferings of the Catholic Church that I love and serve. We see it especially when we listen to the victims of abuse, as I do. We see what happens when people betray the truth, ignore it, hide it or hide from it. For the longest time we didn’t realize — and in some places we still don’t realize — that the only way to address the problem is with the truth, by living according to it and accepting the consequences. If you want to see the case study of what happens when we fail to uphold the truth, look at the Church.

The denial of truth is certainly not a new phenomenon. But in the communication age, it is spreading like a virus and is having a corrosive effect on society on all levels — from our public institutions down to our own individual lives.

Truth is on trial, and the vulnerable are at risk. In reality, we are all at risk.

My particular focus is on the degradation of the law. Up in the Bronx, at the majestic County Courthouse, you can see inscribed above the north portico: “The administration of justice presents the noblest field for the exercise of human capacity.” That certainly presupposes that there is such a thing as justice, and that there is nobility in serving it.

Does anyone believe this anymore? I do, but I certainly wasn’t taught that in law school, and it’s hard to see it anywhere in our politics or government. It has been replaced by legal positivism — the idea that there is no objective morality, that the law is nothing but an expression of power, special interest, and domination, and that there is no law but man’s law.

You can see the danger. If there is no law but man-made law, then nothing is safe and, as my first-year Contracts professor told us — “It’s all up for grabs”. Pope Benedict warned us about this, “A purely positivistic culture… would be the capitulation of reason, the renunciation of its highest possibilities, and hence a disaster for humanity, with very grave consequences.”

How far we have come from the day, when in the midst of the slavery debate, the great statesman William Seward said “there is a higher law than the Constitution, which regulates our authority over the domain, and devotes it to the same noble purposes.”

Instead we have a Supreme Court that echoes the infamous Dred Scott decision by holding that unborn human beings have no rights that born people are bound to respect. A Court that says that absolute personal autonomy is the highest value, and that everyone can somehow define the meaning of the universe for himself. A Supreme Court Justice who cynically instructed his law clerks that the most important thing to know about the Court is five — the bare majority needed for a decision.  A series of nominees who are forced by the confirmation process to talk about decisions that were wrong the day they were decided – Roe and Casey in particular – and call them “settled law” that have to be respected as “precedent”.  Not much has changed since Frederick Douglass said of the Dred Scott Supreme Court, “[they] can do many things, but [they] cannot change the essential nature of things — making evil good, and good, evil”. But they certainly are still trying, and will continue to try.

We see this in every issue we face in the pro-life movement, where the powerful first devalue, then dehumanize, and then dispose of the weak. For the past few years I’ve spent a lot of time on the issue of assisted suicide. People with disabilities and elderly people are being told their lives have no value because they lack some kind of quality or capability or because they are too costly to maintain. They are being told that they are better off dead. Insurance companies won’t pay for treatment but they will pay for suicide drugs. Doctors become killers, laws put people in danger rather than protecting them, the advocates hide behind phony terms like “medical aid in dying”, they claim that it’s not really “suicide” and they call it “compassionate”. This is what the denial of the truth brings us to.

Yes, the truth is on trial. We are on trial. The stakes are very high. But we have an answer because our movement is at its heart a truth-teller.

One of the fundamental truths we hold is that there is a law that governs us all — the natural law.

It is a universal objective moral order that God wrote in our hearts and in our very nature, but it is discernible by reason also. The truth of this law does not depend on power, identity, feelings, culture, or the whims of courts or legislatures. It is real, eternal, binding on us all and essential for our safety and happiness. All human laws must conform to it, or at least not contradict it, or they are not binding on us, and we must try to correct them. James Wilson, Founding Fathers and one of the first Supreme Court Justices, said “it should always be remembered, that this law, natural or revealed, made for men or for nations, flows from the same divine source: it is the law of God… Human law must rest its authority, ultimately, upon the authority of that law, which is divine”. All the Founders of our nation believed this. Abraham Lincoln believed it. Can you imagine any Supreme Court nominee saying this now?

This higher law stands against any abuse of power, whether by individuals or governments. Under this law, abortion and euthanasia would be unthinkable – nobody can take into their own hands the absolute, unaccountable power over life and death.

The natural law and its objective moral truth are the cure for the pessimism and nihilism of the legal positivists.  It gives us the foundation to uphold what is right and good and most human — polices that embody justice, charity, and the common good, and laws that protect the most vulnerable, and defend religious freedom and human rights.  How much better life would be, if these fundamental truths were embodied in our law. How much more happiness there would be in our world.

This is why our movement is so important. We are the advocates for the weak and vulnerable who are most at risk when the powerful act as if there is no truth, no eternal law, and “it’s all up for grabs”. In the end, we know that we will be judged — as individuals and as a nation — not according to man’s “settled law”, or the Supreme Court’s precedents, but by God’s eternal law.

And we prove these truths by how we love — from the mother vulnerable to abortion, to the single parent struggling to survive, to the disabled person living in loneliness. Including loving those who oppose us. Love is the most powerful argument for the truth.

Our society has lost sight of these truths. But we are here to remind them.

We hold these truths to be self-evident:

  • Every human being has been endowed by God with dignity and rights that cannot be taken away by anyone.
  • The first and foremost of these rights is the right to live.
  • Every unique individual human being has inestimable value that is not dependent on productivity or ability or usefulness or convenience.
  • It is a fundamental injustice to hurt or kill an innocent person no matter their age or condition.
  • The government has a solemn duty to protect and defend everyone.
  • It is a disgraceful dereliction of duty for the government to stand by and do nothing while innocent lives are taken, or, even worse, to encourage it or pay for it.
  • We are all united in one human family — what hurts one hurts us all.
  • Because either everybody’s life matters or nobody’s life matters.

Our challenge is the same it has always been, in every movement to eliminate injustice and oppression — from abolitionism to the civil rights movement to our pro-life movement. Abraham Lincoln once said, “[T]he real issue… is the eternal struggle between these two principles—right and wrong—throughout the world.  They are the two principles that have stood face to face from the beginning of time; and will ever continue to struggle.”

This is our struggle, our trial, in our time – to defend every human life.

We do this because have an unshakable confidence. We are not be discouraged by the powerful forces that oppose us. We will speak the truth with love. We will uphold the law that God has written into every human heart. We will lift up the weak and vulnerable. We will dare to do our duty to them.

And we know that by the grace of God and our hard work, our cause — our glorious cause — will triumph in the end.

The Supreme Court Nominee’s Error about Roe v. Wade

Wednesday, August 22nd, 2018

We are once again in the midst of the circus leading up to confirmation hearings for the new Supreme Court nominee. Judge Brett Kavanaugh is making the rounds of the Senate, speaking to the Senators who will consider his nomination, and seeking to woo some of the potential swing votes in his favor. It’s the standard ritual, with all the usual photo ops, pre- and post-meeting press comments, etc. Little of any substance usually comes of these things.

But today, something of significance came out of the meeting between the nominee and a Republican Senator who considers herself to be “pro-choice”. After the meeting, the Senator said that the nominee called the infamous Roe v. Wade decision to be “settled law”. Presumably this is an accurate account of their conversation, because neither the nominee nor his handlers have disputed the Senator’s account.

This is very unsettling to hear from a Supreme Court nominee. We have heard it before, and it is a clear indication that the nominee has no real interest in overruling Roe. Chief Justice Roberts and Justice Gorsuch both called Roe “settled law” during their own confirmation hearings, and Justice Alito has said that it has added strength as a precedent because it has survived prior challenges and people have come to rely on it.

This is a terrible way of thinking, and it fails to recognize the fundamental duty of a judge to do justice and to decide cases correctly. An unjust law, or one that is clearly wrongly decided, can never be considered “settled”. And there is no question that Roe v. Wade was wrong as a matter of morality and legal reasoning, and that it is profoundly unjust. Its progeny, Planned Parenthood v. Casey (which really is the controlling law now, not Roe), was also wrongly decided. Both of these cases ruled that there is an entire class of human beings who have no constitutional rights – they have been judicially defined as non-persons, in effect outlaws, and they can be subjected to violence and killing with impunity. It is deeply troubling that the nominee has signaled that he would uphold such a law.

The nominee likes to consider himself an “originalist”, meaning that he believes that the Constitution should be interpreted according to its original public meaning at the time of its ratification. Unfortunately, he doesn’t seem to understand that judges of that time would never have viewed a wrongly-decided case as “settled”. Instead, they would have understood it to be their duty to correct the injustice.

The giant of English legal thinking, William Blackstone, wrote that prior decisions are not controlling if they are “flatly absurd or unjust” or “contrary to reason”. In the words of an great American legal scholar, Chancellor James Kent, “If, however, any solemnly adjudged case can be shown to be in error, it is no doubt the right and the duty of the judges who have a similar case before them, to correct the error”. Throughout our history, the Supreme Court has overruled prior decisions when it is clear that they were wrong or poorly reasoned. Judge Kavanaugh’s originalism clearly is not in keeping with these “settled” legal principles.

In another interview with a Senator, the nominee declined to say whether he thought Roe and Casey were correctly decided. One can understand his reticence, given the politicization of the confirmation process. But his failure to take a stand is incoherent. To believe that a case is “settled law” necessarily means that one believes that it was correctly; if one does not believe that a case was correctly decided, then it cannot be “settled law”. The nominee’s failure to take a stand is simply illogical – it violates the Law of Contradiction (a thing can’t be both A and not-A at the same time) that even lawyers understand very well. In any event, the nominee’s non-position certainly does not show any burning desire to overturn Roe.

So what is the final significance of all this? I have long been certain that the Supreme Court is not going to overrule Roe any time soon. Only Justice Thomas has ever said that he would do so, and all the other “conservatives” are now all on record saying that they believe Roe to be “settled law” or binding precedent. So, regardless of the assurances and wishful thinking of his supporters, I don’t believe that the confirmation of Judge Kavanaugh brings us to the verge of Roe’s much-deserved demise.

That is not to say that I think Judge Kavanaugh will make things worse. I fully expect that he will show respect for the separation of powers and federalism, and that he will vote to permit states to have greater leeway in regulating abortion. That may begin the process of at least limiting the malign effects of RoeCasey. It may also contribute, in the long term, to the rebuilding of a culture of life in the law.

But in the meantime, the idea that the abortion decisions are “settled law” is an awful way of thinking, one that violates the fundamental duty of everyone – including judges – to do justice and act in accordance with the universal natural moral law. That law is “settled” – one may never deliberately take the life of an innocent person and the government has a solemn duty to ensure that all lives are protected from unjust violence.