This article originally appeared in The Federalist, dated February 1st, 2019.
According to Gallup, 87 percent of Americans believe abortion should be strictly illegal in the last three months of a pregnancy. Among this extraordinarily large share of Americans is a fair share of New York doctors. So what happens when the New York state legislature passes a law that makes it a “fundamental right” for patients to receive a third-trimester abortion?
That’s exactly what happened last week, when New York redefined a legal “person” as someone who has already been born, and gave patients extensive license to request doctors perform late-term abortions for them.
For doctors who share the opinion with the vast majority of Americans that third-trimester abortions should be illegal, the passage of this law can only be extremely upsetting. What if a patient––or worse, a pro-choice advocacy organization on behalf of a patient––walks up to them and demands they perform a procedure on them that they deem horrific and murderous? What do they do when every move they make with regard to this issue will be recorded and watched by the rest of America?
Three issues could emerge from the impending fight in New York State between pro-choice advocacy groups and conscientious doctors.
Doctors Left to Fend for Themselves
We hire doctors to save lives, not play political games. But the New York abortion law will shine the (probably unwanted) national political spotlight on medical professionals like never before.
According to Bill S2796, a health care practitioner may perform a third-trimester abortion when he or she believes that an abortion is necessary “to protect the patient’s life or health.” The law specifically states it is the doctor who is ultimately responsible for advising the patient to abort or not abort her child, while leaving extremely little and vague guidance as to how a doctor should make this gut-wrenching decision.
After all, “health” is a suspicious reason to request a third-trimester abortion. A study by the Guttmacher Institute (a pro-choice think tank) in 2013 revealed that out of 272 women surveyed who had received an abortion after 20 weeks of pregnancy, none of them received it for any kind of clinical endangerment to the health of the mother.
This means doctors in New York will face severe scrutiny from the public over how they decide to interpret what’s best for the patient’s “health.” Is the law talking about the patient’s physical health? Economic health? Emotional? Doctors are given zero guidance on this issue, except to use their “professional judgment.”
Yet these doctors are expected to carry the entirety of the political burden of deciding whether to abort a fully formed, viable human being––a burden that was supposed to be carried by the people we elect to make those decisions. Bill S2796 will expose individual doctors to the harsh winds of public scrutiny without so much as a blanket.
Doctors’ Freedom Of Conscience Is at Stake
Pro-life doctors will have to stand up for themselves against a law that violates their most sacred principles. Fortunately, they won’t be alone.
The Masterpiece Cake Shop and Hobby Lobby rulings of years past will help their cases. These previous Supreme Court cases decided that businesses and individuals had certain rights of conscience if they could prove sincere devotion to a certain religion or way of looking at the world. Doctors who object to third-trimester abortions have these rulings, as well as “conscience clauses” in 46 states that support a doctor’s right to refuse performing abortions if he disagrees morally with the procedure. These laws will help protect a doctor in case he objects to third-trimester abortion.
But the new law in New York could throw a wrench in these conscience clauses. The law now gives the patient a discrimination clause, which directly competes with conscience clauses over a patient’s right to a late-term abortion. It explicitly states: the patient “should be able to… [seek and obtain] abortion care, free from discrimination in the provision of health care.”
What does discrimination have to do with refusing to provide an abortion? Potentially a lot. In 1978, Congress passed the Pregnancy Discrimination Act, creating a new protected class for pregnant women. Although that law was passed mostly to curtail employment discrimination, it wouldn’t be too much of a stretch to see a state like New York expand the scope of this law to encompass consumer discrimination and require that doctors who perform abortions not discriminate based on the stage of pregnancy.
The NY abortion law sets the stage for yet another battle between conscientious freedom and anti-discrimination laws. Doctors who refuse third-trimester abortions might have to brace themselves for the possibility of an extended court fight––but they have precedent on their side.
Doctors Will Be Given An Unprecedented National Platform
All this public and legal scrutiny on pro-life medical professionals may eventually prove beneficial, because it gives these doctors an opportunity to explain to their patients and the wider world how the facts and science about abortion make it impossible to deny the personhood of those inside the womb.
Remember how Roe v. Wade was settled: by claiming that there are competing views to the life and personhood of the fetus, the Supreme Court could simply state that none of these views trump the other and therefore the woman’s right to privacy (which they interpreted to mean abortion) wins out against the potential human being’s right to life.
But now, pro-life doctors have the opportunity of a lifetime. They should use the public attention to explain to the public why they chose life for their patients. They should point out the wealth of post-natal options for mothers who can’t afford to keep their child. They should point out how science supports the idea that from the very first zygote, the cell created by a sperm and an egg is a completely unique cell, capable of forming a living, breathing human being in a way no other single cell could. They should use ultrasound technology unavailable to doctors in 1973 (the year Roe was decided) to show that a baby’s heartbeat can be detected as early as eight weeks. Stating this evidence with clarity and precision will do wonders to convince the public about Roe’s outdated utility.
Medical professionals are on deck for a greater role in the abortion debate than ever before, whether they like it or not. The New York abortion law and its abortion advocates seeks to isolate pro-life doctors and have them endure public scrutiny in the hopes they will cave and allow third-trimester abortion to be normalized across the state.
But doctors should not fear: they have science and Supreme Court precedent to support their case. This law should galvanize doctors across America to draw a line in the sand, stating what the vast majority of Americans already believe: that no society where third-trimester abortion is the law of the land could ever be considered “healthy.”