Promoted from the diaries by streiff. Promotion does not imply endorsement.
As everyone should be painfully aware, New York recently passed and had signed into law one of the most liberal abortion laws in the country prompting the Governor, Andrew Coumo, to request that the Empire State Building be adorned in pink light. This law does several things. First, and most importantly, it allows an abortion to be performed up to 40 weeks of pregnancy which, if my math is correct, is birth. These third-trimester abortions would be performed in the “absence of fetal vitality” or if the mother’s “life or health would be at risk.” Finally, licensed nurse practitioners and physician assistants would be authorized to perform abortions.
As one can tell, “absence of fetal vitality” and “life or health would be at risk” are intentionally ambiguous terms open to interpretation. Secondly, a human life in the third trimester is well past the phase of being a “fetus.” Under federal law, late-term abortions are banned and only performed if the mother’s life (not necessarily health) are in danger. Like any good Leftist out there, the phrase “maternal health” has now expanded beyond the physical and into anything that may disrupt the life of an expectant mother.
The pro-death crowd holds up as sacrosanct Roe vs. Wade which is the reason people dress up like vaginas and don pink hats every time a judicial nomination is announced, especially if they are for the Supreme Court. Yet this New York law and the ones proposed in Vermont, Virginia, New Mexico and elsewhere are actually an attack on Roe. Why? Because that decision allows the state to regulate abortion after the moment of fetal viability. Roe also requires that the abortion be performed by a physician. In Oregon, their abortion laws already codifies abortion as a Constitutional right.
So why the sudden rush to introduce these laws all of a sudden and why the pushing of the envelope? There are two components to the answer to that question- one political and one legal. Overlooked in the midterm elections were gains made by Democrats at the state legislative level in these states seriously considering a New York style permissive abortion law. Republicans never really had much of an advantage in either Massachusetts or Rhode Island so Democratic gains made no difference. In Vermont, the loss of 10 Republican house members emboldened Democrats to take action now while in New Mexico although Democrats made gains, the partisan makeup of their legislative chambers is relatively close. Assuming Republican lawmakers in New Mexico hold strong and pick off a few Democrats, permissive abortion laws in New Mexico would appear a long shot at this point. Further, New Mexico now has a Democratic governor and the legislature fully knew that any attempt previous would result in a veto with a Republican governor (Susana Martinez) and they did not have the votes to override that veto.
In both New York and Virginia one can see the politics at work. Prior to the midterms, Democrats in New York held a big advantage in their House, but a precarious one person advantage in their senate. The loss of eight Republican senators shifted the balance significantly enough allowing them to take this action now. It also helped they had a Democratic governor. Virginia is significantly different. Since there were no state legislative races there, Republicans held the advantage in both their state senate and house (although those advantages are tenuous). That is why, despite having a Democratic governor, their recently introduced bill was tabled and given the controversy will likely die a quick death. As a practical matter, one should expect Rhode Island to enact a New York-style law. As for Vermont, Democrats certainly have large enough majorities in their legislature, but have to get past a Republican governor. Unfortunately, Phil Scott has signaled a willingness to sign such a bill into law (NOTE: If he does, he should be kicked out of the GOP). Charlie Baker is the Republican governor of Massachusetts and Democrats clearly have enough of a partisan advantage to override his veto should it come to that. However, Baker’s popularity may be his ace in the hole…if he plays that card. As for New Mexico, the Democratic advantages are slim in both houses. I have already discussed the unlikelihood of the Virginia law ever coming to fruition in the near future.
The second component is the legal aspect. Liberals are great at waging lawfare against conservative initiatives. However, most of the lawfare is defensive in nature. It works thus: Trump initiates a policy and liberal lawyers immediately go to a favorable court, win an injunction, the policy is put on hold and not implemented and then tied up in litigation. Likewise, as we have seen in North Dakota, Texas and Mississippi, the state passes a law restricting abortion and liberal lawyers find a willing “victim” or injured party and likewise play the injunction/tie-up-in-court game. Defensive lawfare is an action taken in response to conservative laws and initiatives.
In the current instances, the Left is playing offensive lawfare. They are, in effect, almost baiting conservatives to challenge these permissive laws in court to (1) push the issue and test the boundaries and/or (2) ironically, have conservatives challenge the laws by supporting Roe v. Wade since some of the restrictive provisions allowable under Roe are in stark contrast to these permissive laws. It is no coincidence that these laws are being proposed in mainly liberal states with liberal judges.
The issue is further complicated by the pro-life insistence and the liberal fear that Roe v. Wade be overturned. If that were the case and that day ever came, the issue of abortion laws would be thrown back to the states and their political and legislative process. In effect, there would be a Balkanization of abortion laws with restrictive laws in deep red states and permissive ones in deep blue states. Either way, the issue will never be resolved and neither side will be satisfied. The battles will shift from Washington to fifty state capitals.
Hence, the question is whether, as a country, we should be satisfied with this state of affairs? On the one hand, the premise that abortion is a fundamental Constitutional right would be undermined. On the other hand, you would have states placing their stamp of approval on infanticide and engaging in de facto eugenics. For a country founded and predicated on the principle of “life, liberty, and the pursuit of happiness,” that would be a sad commentary. Even sadder, it may take one instance or one video of a crying baby being slaughtered to prove the callous inhumanity of the Left and resolve the issue once and for all. Simply stated, abortion is murder.