Just What Right Is The New York Legislature Trying To Protect?

by
Julio Gonzalez, M.D., J.D.
 

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S. 240
Section  1. Legislative intent. The legislature finds that comprehensive reproductive health care, including contraception and abortion,is a fundamental component of a woman's health, privacy and equality. The New York Constitution and United States Constitution protect a woman's fundamental right to access safe, legal abortion, courts have repeatedly reaffirmed this right and further emphasized that states may not place undue burdens on women seeking to access such right.  
Moreover, the legislature finds, as with other medical procedures, the safety of abortion is furthered by evidence-based  practices developed and supported by medical professionals. Abortion is one of the safest medical procedures performed in the United States; the goal of medical regulation should be to improve the quality and availability of care services.

New York Reproductive Health Act
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When the New York legislature says generally that a woman has a right to an abortion, exactly what right is it that they are protecting?  It is important that the New York legislature and other pro-abortionists define specifically of what they are speaking because the implications of subtle variations in language may have significant ramifications.
 
First, the Reproductive Health Act states, "The New York Constitution and United States Constitution protect a woman's fundamental right to access, safe, legal abortion. . . "  This language may not be as accurate as it appears as the words "abortion," "reproductive care," or even "contraception" appear nowhere in the New York Constitutionor in the United States Constitution.  
 
In fact in Roe v. Wade and its progeny cases, the Supreme Court interpreted the Constitution to contain a "penumbra" of privacy that protects a woman's ability to undergo an abortion. It is this interpretation of the existence of a right to privacy, also not expressly mentioned in either constitution, that the courts then use to create a right to abortion access.  
 
But let us be clear, until and unless a right is expressly inscribed onto the constitution by amendment, the existence of such rights created by the Supreme Court are as ephemeral as the whims of the members sitting on the bench.  A court-created right lives and dies by the opinions of the court, a fact that the legislature conveniently leaves out of its predicate. 
 
The legislature also ignores that a state may regulate the manner, place, and circumstance under which an abortion is performed.  It is only "undue burdens on women seeking to access such right." that states may not enact.  (emphasis added)  
 
As we have seen, rather than avoiding the placement of undue burdens, the New York legislature does its best to remove any burden.  
 
Moreover, notice the legislature's continued uncertainty in referring to the abortion "right."   In S. 240 §1, the legislature says that the New York and United States constitutions protect a woman's "fundamental right to access safe, legal abortion. . . "  According to this language, the protected right is the access to certain abortions.  However, later in the same run-on sentence the legislature says that courts have emphasized that states "may not place undue burdens on this access to such right."  Notice that the "right" being referred to here has to be the abortion itself because it would be nonsensical to say that that the states may not place undue burdens on access to accessing abortions.  Ever so subtly, like the trickery from a master shell game player, the New York legislature changed the protected right from access to abortion to the abortion itself. 
 
So, what exactly is the constitutionally protected right according to the New York legislature?  Is it the right to an abortion, or the right to access an abortion?  The difference is fundamental.  If one possesses a right to an abortion then it is up to government to make sure a woman can get an abortion free of charge.  If it is the access to an abortion that is protected, then the state's responsibility in the matter is decidedly different. 
 
If you read the Supreme Court's language in cases like Roe, it is the right to pursue an abortion that is protected, not the abortion itself.  In other words, the Court is not ordering the states to provide abortion on demand to women. It is, rather, telling states that they cannot place undue burdens upon a woman wishing to seek one.  Moreover, it is not even the right to access an abortion that's protected in Roe,it is the right to keep the government from knowing whether she is having an abortion and interfering with the privacy of her decision to get it.  
 
Like most pro-abortionist leftists, the legislature here, probably purposefully, misrepresents the right that women have been ruled to have by the courts and might have unwittingly created a legal argument for all women in New York to demand that taxpayers arrange and pay for their abortions.  Regardless, it is of great interest that missing from the discussion is the right of the unborn child to live.  
 
 
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and served in the Florida House of Representatives. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.