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Federal lawsuit challenges NYS' Reproductive Health Act

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Demonstrators march against Roe v. Wade in Syracuse Saturday.

Abortion protesters marched in Syracuse over the weekend on the 48th anniversary of the Supreme Court’s Roe v. Wade ruling that legalized abortion in the U.S. With Joe Biden in the White House, a federal lawsuit challenging New York's Reproductive Health Act could be more difficult to win.

Syracuse Right to Life Association President Christina Fadden said while former President Donald Trump was able to appoint conservative judges and Supreme Court justices, she’s less optimistic about the pro-life movement now that Biden has taken office. The White House released a statement Saturday saying Biden’s administration is committed to codifying Roe v. Wade into federal law.

“There’s a lot of thinking that President Biden – he’s Catholic – that there’s sort of sensibilities to abortion, but the statement that the Biden-Harris administration released about Roe v. Wade shows that there is really no common ground that they’re willing to seek over the abortion issue unfortunately,” Fadden said.

Fadden’s group is encouraged, though, about a new lawsuit that is targeting the Reproductive Health Act, the law New York passed two years ago to codify the Roe v. Wade decision into state law. It permits abortions up to six months into the pregnancy and afterward if the woman’s health or life is in danger or if the fetus is in danger.

Michele Sterlace, one of the attorneys in the lawsuit, claims the RHA did more than codify Roe. She says it took it into unconstitutional territory.

Roe v. Wade provided the right to abortion pre-viability. Absent a threat to a mother’s life or serious risk to her physical health, there’s nothing in U.S. abortion jurisprudence, including Roe, that confers upon any person a right to kill a viable unborn child,” Sterlace said. “The focus of the lawsuit is the rights of viable unborn fetuses that are capable with or without medical intervention of living outside the womb.”

The Roe v. Wade decision affirmed a woman’s right to an abortion as a constitutionally protected interest, but later Supreme Court rulings have recognized that states can pass regulations restricting abortions in the interest of the woman’s health, as well as that of the unborn child, as long as it doesn’t create an undue burden or substantial obstacle to the procedure.

The new lawsuit also claims that New York’s law endangers mothers because abortion is no longer included as an offense in the state criminal code, a move state leaders said would de-criminalize access to these medical procedures and protect the doctors who perform them.

Sterlace argues that it leaves women vulnerable.

“When you have the removal of fetal homicide for viable unborn children, a woman in later stages of pregnancy could be attacked,” she said. “If that attack results in the loss of her wanted viable child, there’s no recourse for her in terms of relief and we see that as demeaning to women in terms of their status as mothers.”

Proponents of the law, like State Sen. Liz Krueger, disagree. Krueger says there are criminal charges that can be brought to prosecute such a crime.

“Before the RHA, first and second degree abortion charges carried a penalty of 2-7 and 1.5-4 years respectively,” Krueger said. “Physical assault on a woman resulting in the loss of pregnancy qualifies as a charge of first degree assault, which carries a much higher penalty of 5-25 years. If a woman is killed in such an attack, a murder charge carries a sentence of 25 years to life. Furthermore, judges have discretion when sentencing to increase the penalty for particularly violent or brutal crimes. Finally, additional charges may be pressed as well, such as kidnapping, depending on the circumstances of the crime.”

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