What's Up in Virginia and New York?

Jeremy Gorr

February 1, 2019

There have been a lot of scary headlines about what some new abortion bills in Virginia and New York will allow. I wanted to get past the hype and look into the actual facts around these bills myself.

Virginia HB 2491 – Bill to eliminate certain abortion restrictions

This bill became national news when Governor Ralph Northam, in a TV interview, seemed to argue for killing children after they were born in some cases.

Ralph Northam, Attribution: Lee District Democratic Committee CC BY 2.0, via Wikimedia Commons

I don’t think this bill is worth examining because it is probably dead – it is tabled with no current plans to bring it back. We can probably thank the fact that extreme comments about this bill went viral for that. As Virginia’s legislature currently stands, even if it advanced, it would not be approved by the House of Delegates, which has a Republican majority.

House of Delegates Majority Leader C. Todd Gilbert, a Republican, sent WSLS 10 News this statement:

"I think what my Democratic colleagues are most concerned about is what this moment actually revealed. It was a moment of unbridled honesty about their agenda."

New York Reproductive Health Act (RHA)

Unfortunately, most of the horror stories about this law that I’ve seen in the news seem to be true!

Here is the text of the bill itself. This bill is now law in New York. Reading the bill itself is very difficult, because it references dozens of different penal codes. I have answered some pertinent questions below. Most of my answers come from this great article. I personally confirmed these answers with what the bill says, and they seem to match. Most of the quotes below come from the article, not from the bill itself. Because the bill itself explains very little about what it is actually doing, you have to analyze the penal codes to understand what it is getting at. So in this case, a fair analyst can come up with better answers than the text of the bill itself can provide.

Does the bill allow abortion up to the moment of birth? Yes. “Abortion is allowed without any restrictions during the first and second trimesters. Later than that, the question is how fetal viability and protection of the life and health of the mother are determined. The RHA says that those judgments are to be made according to ‘the practitioner's reasonable and good faith professional judgment based on the facts of the patient's case’; it does not impose any objective medical standard.”*(1)
Does the RHA allow non-physicians to perform abortions? Yes. Licensed nurse practitioners or physician assistants can now perform abortions.
Does the RHA eliminate any prosecution of fetal death resulting from violence against the mother? Yes. “There is no longer any reference whatsoever to unborn children as possible victims of homicide, the law now effectively excludes them from the definition of ‘human person.’”*(1) See this article by Charles Camosy on the possible implications of this.
Can doctors and nurses be forced to perform abortions? Unknown. “The RHA does not contain any explicit provision requiring anyone to perform or provide abortions, but neither does it explicitly provide any exemption for conscientious objection by health care professionals regarding abortion. In other words, it is not yet clear what precise legal effect the ‘fundamental right’ language may have.”*(1)
Are there any legal protections for aborted children who are born alive? No. The RHA repealed Section 4164 (which legally protects children born alive), so “the public health law is now silent on the status of an infant born alive during an abortion.”*(1) There is now no criminal punishment in New York for doctors who kill children outside the womb if they are a result of a failed abortion! New York had a section of law to prevent this, but they specifically repealed it.
Wouldn't the Federal Born-Alive Infant Protection Act (BAIPA) give penalties to doctors for killing children born alive? No. BAIPA imposes no criminal penalties. Here is a great article on that act by Hadley Arkes. Regarding why there were no criminal penalties in the act: “By the time it was put in legislative form, the penalties were dropped, in part to avoid a veto from President Clinton (in 2000), but in part also to make the bill a pure ‘teaching’ bill: The bill would break to the public news that most people would find jolting.”*(2) Ben Sasse is now proposing a federal bill which would add penalties for this, the Born Alive Abortion Survivors Protection Act.
What good is BAIPA if it doesn't impose any criminal penalties? “Even without civil penalties attached to the Born-Alive Act, it remains one of the most powerful tools in the arsenal of the pro-life side. For it is a real statute, and therefore any hospital or clinic performing a live-birth abortion would not be “in accord with the public policy” of the United States. On that ground, it could lose its tax exemption and all supporting federal funds, a prospect that could be enough in itself to induce people to back away from this business.”*(2)