Cuomo's crusade

NEW YORK—Staffers accused him of reusing bloody tools, of keeping a 6-month-old aborted baby in a freezer, and botching dozens of abortions. A woman died after one of his abortions, according to the state health department. He was found guilty of performing a late-term abortion and nearly killing a woman in a botched abortion.

This was in 1993 in New York City, not at recently convicted late-term abortionist Kermit Gosnell’s Philadelphia clinic. Dr. Abu Hayat, who ran an abortion clinic on the Lower East Side, faced criminal charges after he severed a baby’s arm in the course of a botched late-term abortion. Rosa Rodriguez testified that she had second thoughts about the abortion at the clinic, but Hayat told her it was too late and put her under anesthesia. She testified that she awoke and saw blood everywhere. The next day Ana Rosa Rodriguez was born alive, without an arm, weighing in at 3 pounds, 1 ounce. After Rodriguez came forward, 30 other women accused Hayat of botching their abortions.

The story sounds familiar. Gosnell was convicted of three counts of murder, all babies born alive whose spines he severed. He was convicted of involuntary manslaughter in overdosing a patient, who died. Less covered was Gosnell’s conviction for aborting 21 babies after Pennsylvania’s 24-week limit.

In New York too, doctors can face criminal charges for abortions of babies older than 24 weeks and for manslaughter of a patient in the midst of an abortion. Hayat was convicted and sentenced to up to 29 years in prison for assault charges (on both Rodriguez and her unborn baby) and for performing a late-term abortion.

The statutes that resulted in Hayat’s conviction could change by the end of June because New York Gov. Andrew Cuomo, a Democrat, is seeking to pass a bill that would expand the legality of late-term abortions and remove certain criminal penalties associated with abortion. A proposed bill would legalize abortions after 24 weeks for the physical or emotional health of the mother.

“It would eliminate the ability to have that trial,” said Anna Franzonello, a lawyer with Americans United for Life and an expert on New York abortion law, referring to Gosnell’s trial.

The crafters of the proposed law disagree. In the preamble to the bill, the Reproductive Health Act (RHA), they write, “Sufficient protections still exist to address abortions which are performed by healthcare practitioners under circumstances that constitute unprofessional, tortuous, or criminal conduct.” But the RHA goes further, offering legal protection only to infants born alive.

Even Gosnell’s attorney Jack McMahon, in a recent interview with Fox News, said he thought abortion should be illegal after 16 weeks. “I’ve come out of this case realizing that 24 weeks is a bad determiner,” he said. “It should be like 16, 17 weeks. That would be a far better thing, because the babies would not even be arguably viable at that time, and I think the law should be changed to that … [women would] still have the right to choose, but they’ve got to choose quicker.”

As many states are passing more restrictions on late-term abortions and abortion clinics, Cuomo is one of the only governors looking to loosen restrictions. New York already has some of the most relaxed rules—NARAL Pro-Choice America gives New York’s abortion laws an A-minus (see sidebar below). Concurrently New York has one of the highest abortion rates in the country at 33 percent, and in New York City itself, 41 percent of pregnancies end in abortion. In 2009, the city reported 87,273 abortions.

“There was a time when abortion supporters claimed they wanted to make abortion ‘safe, legal, and rare.’ Yet this measure is specifically designed to expand access to abortion, and therefore to increase the abortion rate,” Cardinal Timothy Dolan, archbishop of New York, wrote Cuomo in a letter in January. “I am hard pressed to think of a piece of legislation that is less needed or more harmful than this one.” Cuomo responded to Dolan recently, “We agree to disagree, respectfully, and that is where we are.”

Cuomo has said the proposal would simply bring New York’s laws into alignment with Supreme Court precedent. The court in Doe v. Bolton allowed abortions at any point for the sake of the life or health of the mother. But no court has overturned New York’s abortion laws, so they remain enforceable, according to lawyer Mary Spaulding Balch, who heads up the National Right to Life Committee’s department on state legislation.

New York has rarely enforced its own laws against abortions after 24 weeks, but Planned Parenthood acknowledges that abortion clinics operate under the assumption that they could be prosecuted for violating the laws. In a recent statement in support of the proposed legislation, Planned Parenthood said, “Fear of criminal prosecution deters healthcare providers from offering the best reproductive health care under certain circumstances.”

In 1995, another New York abortionist was convicted of murder and sentenced to 25 years in prison under New York’s criminal statutes. Dr. David Benjamin was found guilty after he aborted a 19- or 20-week-old child and left the mother to bleed to death. The murder charge was shocking because doctors in that situation would typically face malpractice suits. New York law allows for stiffer penalties—a doctor can be convicted of homicide for committing “upon a female an abortional act which causes her death.” The proposed law would strike that clause, but it asserts that Benjamin could still be convicted under other statutes.

In 2001, a man pleaded guilty to attempted second-degree abortion, which is also a criminal act under current New York law, after he put a drug in a friend’s drink that he thought would abort her child (it didn’t work). The proposed law would remove criminal penalties for second-degree abortion.

Cuomo first unveiled the proposal in his January State of the State speech as part of the Women’s Equality Act (WEA), a 10-point initiative that has the abortion measure rolled in with measures addressing women’s equal pay and trafficking. The governor hasn’t yet introduced the actual legislation for the WEA, so he could amend the RHA before introducing it in the larger bill. But Cuomo’s office told me that he does not plan to change any of the 10 points, including the abortion portion. Democrats are hopeful that rolling the abortion measure in with other more popular measures will ease the act’s passage. Cuomo wants to pass the WEA before the legislative session ends in June.

For now the measure has one roadblock: Senate Republican Leader Dean Skelos, who effectively controls the Senate with a coalition of Republicans and some breakaway Democrats. Skelos said he wouldn’t let the abortion measure come to the floor, and mentioned after Gosnell’s conviction that the law would “open the door to similar horrors.” Still, on gun control and gay marriage, Cuomo has shown skill at flipping Senate Republican votes.

At a recent press conference a reporter asked the governor, “With the 10 points—is it all or nothing?”

“There is no reason not to pass all 10,” Cuomo said. “I want all 10 passed.”

“Considering the block over abortion,” the reporter returned, “is that realistic?”

“You’re stating their position today,” Cuomo said. “There’s tomorrow and the day after and the day after. We have several weeks.”

“Considering how strongly they’ve opposed this, do you expect to change their minds in six weeks?” the reporter said.

“Revelations happen all the time,” Cuomo said.

Skelos’ office did not respond to a request for comment on the governor’s assertion.

New York rules

New York’s current abortion laws get an A-minus from NARAL Pro-Choice America, while Americans United For Life ranks it 48 out of the 50 states. The state has no laws requiring parental consent for minors seeking abortions, no waiting period for abortions, and it publicly funds abortions for women who receive public assistance.

The proposed Reproductive Health Act removes late-term abortions from the criminal code, so illegal late-term abortions would be treated as malpractice. The RHA removes manslaughter penalties for doctors who might unintentionally kill a patient in the course of an abortion (though manslaughter charges remain for someone who “recklessly causes the death of another person”).

Under current law, if someone murdered a woman who was more than 24 weeks pregnant, he or she could be prosecuted for two homicides. The RHA would remove the homicide statute for unborn babies. Also, in the section of the criminal code that gives the coroner or medical examiner authority to investigate suspicious deaths, the RHA deletes this provision: “A death caused by suspected criminal abortion.” The law’s preamble says that removing abortion from the criminal code will ensure that abortion is “treated like any other medical procedure.”

The Supreme Court might disagree. In its 1980 ruling Harris v. McRae, the court wrote, “Abortion is inherently different from other medical procedures because no other procedure involves the purposeful termination of a potential life.” —E.B.