Motus Mentis

New York’s governor, Andrew Cuomo, has just signed into law a bill called the Reproductive Health Act. (You can read it here.)

The principal effects of the bill are a) to remove all mention of abortion from the New York State penal code; b) to permit licensed heath-care practitioners to conduct abortions; and c) to codify the discretion of such providers to justify abortions up to the moment of natural birth.

Here are some salient points:

Section 125.00, which defines homicide, used to say:

Homicide means conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks under circumstances constituting murder, manslaughter in the first degree, manslaughter in the second degree, OR criminally negligent homicide, abortion in the first degree or self-abortion in the first degree.

Now it will read:

Homicide means conduct which causes the death of a person under circumstances constituting murder, manslaughter in the first degree, manslaughter in the second degree, OR criminally negligent homicide.

What’s a “person”? The definition is in section 125.05 of the code:

“Person,” when referring to the victim of a homicide, means a human being who has been born and is alive.

The change in the definition of homicide, then, means that someone who attacks a pregnant woman and causes her to miscarry can no longer be charged with murder for the death of her unborn child. The unborn are thus excluded, by act of law, from the circle of morally protected beings — giving them lower legal status, as far as I can make out, than the dwarf wedge-mussel or the pine-pinion moth.

The Act removes the following two subsections of the homicide code:

2. “Abortional act” means an act committed upon or with respect to a female, whether by another person or by the female herself, whether sheis pregnant or not, whether directly upon her body or by the administering, taking or prescription of drugs or in any other manner, with intent to cause a miscarriage of such female.

3. “Justifiable abortional act.” An abortional act is justifiable when committed upon a female with her consent by a duly licensed physician acting (a) under a reasonable belief that such is necessary to preserve her life, or, (b) within twenty-four weeks from the commencement of her pregnancy. A pregnant female`s commission of an abortional act upon herself is justifiable when she acts upon the advice of a duly licensed physician (1) that such act is necessary to preserve her life, or, (2) within twenty-four weeks from the commencement of her pregnancy. The submission by a female to an abortional act is justifiable when she believes that it is being committed by a duly licensed physician, acting under a reasonable belief that such act is necessary to preserve her life, or, within twenty-four weeks from the commencement of her pregnancy.

Gone, then, is the 24-week limit for abortions that are not deemed necessary to save the mother’s life. This is replaced with a new section 25-A in the Public Health Law. which includes the following (my emphasis):

§ 2599-BB. ABORTION. 1. A HEALTH CARE PRACTITIONER LICENSED, CERTIFIED, OR AUTHORIZED UNDER TITLE EIGHT OF THE EDUCATION LAW, 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: THE PATIENT IS WITHIN TWENTY-FOUR WEEKS FROM THE COMMENCEMENT OF PREGNANCY, OR THERE IS AN ABSENCE OF FETAL VIABILITY, OR THE ABORTION IS NECESSARY TO PROTECT THE PATIENT’S LIFE OR HEALTH.

This new “or health” wording is carefully chosen; it reflects the language of the United States Supreme Court in Doe v. Bolton, in which the Court explicitly unpacked the legal meaning of the word “health”:

[M]edical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.

What all this means is that abortions are now legal right up to the moment of delivery, as long as a practitioner, who must no longer even be a physician, decides that snuffing out the unborn child is OK “in light of all factors — physical, emotional, psychological, familial, and the woman’s age”.

The humanity of the unborn, all moral obligation toward them, and any legal protections they once had have now been methodically and explicitly defined out of existence.

(Some have been saying that the new law even removes protections for those unwanted babies who somehow manage to survive the abortion procedure, and emerge into the world alive. I have not been able to find this in the bill, so far — but I’m sure it’s on the Governor’s wish-list.)

Today Governor Cuomo ordered that the spire of the Freedom Tower be lit up in pink — in celebration.

 
UPDATE: I’ve found the section of the bill that removes protections for babies who survive the attempt to abort them. It is only one line in the bill:

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

What did the repealed part of the public-health law say? I had to poke around a bit to find it, as that section of the law had already been removed from the first couple of sites I checked. But it’s still online at FindLaw.com, and here’s what it used to say. Read it slowly and carefully, and reflect on the fact that these provisions were explicitly and intentionally deleted, and replaced with nothing at all:

1.”ƒWhen an abortion is to be performed after the twelfth week of pregnancy it shall be performed only in a hospital and only on an in-patient basis. ”‚When an abortion is to be performed after the twentieth week of pregnancy, a physician other than the physician performing the abortion shall be in attendance to take control of and to provide immediate medical care for any live birth that is the result of the abortion. ”‚The commissioner of health is authorized to promulgate rules and regulations to insure the health and safety of the mother and the viable child, in such instances.

2.”ƒSuch child shall be accorded immediate legal protection under the laws of the state of New York, including but not limited to applicable provisions of the social services law, article five of the civil rights law and the penal law.

3.”ƒThe medical records of all life-sustaining efforts put forth for such a live aborted birth, their failure or success, shall be kept by attending physician. ”‚All other vital statistics requirements in the public health law shall be complied with in regard to such aborted child.

4.”ƒIn the event of the subsequent death of the aborted child, the disposal of the dead body shall be in accordance with the requirements of this chapter.

 
ADDITIONAL UPDATE: I’ve also just noticed that the bill repeals section (d) of Article 675 of the county law, which until now authorized a coroner to investigate deaths apparently caused by criminal abortion. I suppose this is because the very concept of a criminal abortion no longer exists in New York.

 
In the wake of the signing of this bill into law, the following image has been making the rounds. It seems about right.