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What would controversial abortion laws in New York, Virginia actually do?

FILE - In this Tuesday, Jan. 29, 2019 file photo, New York Gov. Andrew Cuomo meets with gun safety advocates in the Red Room during a news conference at the state Capitol in Albany, N.Y. (AP Photo/Hans Pennink, File)

Tempers continued to flare Thursday over efforts to loosen abortion restrictions in state legislatures as Republicans claimed Democrats were endorsing “infanticide” and Democrats accused Republicans of an “orchestrated ambush,” but advocates insist the changes are less drastic than the heated rhetoric suggests.

“Do you remember when I said Hillary Clinton was willing to rip the baby out of the womb? That’s what it is. That’s what they’re doing. It’s terrible,” President Donald Trump said in an interview with The Daily Caller Wednesday.

Some Republicans called for Virginia Gov. Ralph Northam to resign after comments he made about third-trimester abortions while discussing a bill proposed by Del. Kathy Tran.

“If a mother’s in labor, I can tell you exactly what would happen. The infant would be delivered, the infant would be kept comfortable, the infant would be resuscitated if that’s what the mother and the family desired. And then a discussion would ensue between the physicians and the mother,” Northam told WTOP Wednesday.

Vice President Mike Pence called this idea “morally reprehensible and evil.” Northam’s office later issued a statement claiming critics mischaracterized his words, which were not intended to suggest ending the life of a delivered baby.

"Republicans in Virginia and across the country are trying to play politics with women’s health, and that is exactly why these decisions belong between a woman and her physician, not legislators, most of whom are men," a spokesperson said.

In the wake of the controversy, the state House tabled the legislation with no future plans to consider it. Tran, who acknowledged in a floor debate video shared widely by Republicans that the bill could hypothetically allow an abortion during labor, said she was surprised by the backlash.

“Right now, women are able to access an abortion in the later stages of pregnancy under certain conditions with the approval of medical doctors,” she said in a video posted on Twitter Thursday. “I’ve done nothing to change that.”

New York Gov. Andrew Cuomo has been under fire as well since he celebrated the passage of a law removing some limits on abortions late in pregnancy there.

"Our governor and legislative leaders hail this new abortion law as progress. This is not progress," the Catholic bishops of New York wrote in a letter condemning the bill. "Progress will be achieved when our laws and our culture once again value and respect each unrepeatable gift of human life, from the first moment of creation to natural death."

Experts say third-trimester abortions are incredibly rare and are typically only carried out in extreme circumstances. According to the Guttmacher Institute, which supports abortion rights, less than 2 percent of abortions are performed after 20 weeks.

“It’s important to remember we’re talking about a situation where there’s a severe life or health complication involved,” said Elizabeth Nash, senior state issues manager for the Guttmacher Institute.

"When abortions occur in the third trimester it's because of tragic scenarios like fetal anencephaly--absence of a major part of the brain--or a maternal condition for which continuing the pregnancy may end the woman's life, like severe pulmonary hypertension," said Dr. Jenn Conti, a fellow with Physicians for Reproductive Health.

Advocates say these laws do not provide “abortion on demand” and still restrict procedures late in a pregnancy to cases where it is medically necessary. Critics question whether an abortion is ever truly medically necessary in the third trimester.

“Make no mistake, this bill functionally renders third-trimester abortions generally legal. It takes nothing more than the agreement of a mother and doctor that there is any degree of even mental impairment to kill a child,” David French said of the Virginia bill in the National Review.

According to Nash, the debate over of abortion laws is hindered by misinformation and misconceptions.

“I’m afraid that conservatives have created a narrative that does not accurately reflect the issues at play in the legislation and does not reflect what happens on the ground,” she said. “But it does allow abortion opponents to paint abortion as dangerous and derail conversations about the kind of care that needs to be available and accessible to pregnant people.”

Rep. Phil Roe, R-Tenn., an OB/GYN who has delivered thousands of babies, said he was “appalled” by the New York law.

“There are no medical indications whatsoever for the life of the mother for a third trimester termination, period,” he said. “Just deliver the baby. We do it all the time. you don’t have to kill the baby, you don’t have to terminate the baby to help the mother. You can deliver the baby, take care of the baby, and take care of the mother.”

Roe also criticized Northam, a former pediatric neurologist, for backing the proposed Virginia law.

“He is a physician, and I don’t know what kind of physician he must be if he thinks that’s the right thing to do,” he said.

Northam has defended his career and his commitment to children.

“I have devoted my life to caring for children and any insinuation otherwise is shameful and disgusting,” he tweeted Wednesday.

Rep. Denver Riggleman, R-VA., said Wednesday morning he is pro-life and worries these laws could create a “slippery slope” to unfettered abortion, but he acknowledged circumstances in which an abortion late in pregnancy should be allowed. He added, however, that he had not yet reviewed the verbiage of the Virginia bill.

“If the baby is stillborn, that’s appropriate,” Riggleman said. “Or if the life of the mother is in danger or if she’s going to die or if the baby could die, I think there are ways that’s appropriate... I think the fear from pro-life people is, it’s going to be abused.”

In a tweet later in the day, he called the legislation "a blatant and unacceptable attack on human life."

New York and Virginia are just two of many states reassessing their abortion laws in response to an ideological shift on the Supreme Court. Republicans in Tennessee and Ohio are pushing bills that would make abortion illegal after a heartbeat is detected, which could be as early as six weeks into a pregnancy.

“For conservative state policymakers, there is this anticipation the court will soon undermine or overturn Roe v. Wade if given the right case,” Nash said, and progressive lawmakers see a new urgency to protect abortion rights in their states for the same reason.

Here is what the bills say:

VIRGINIA

The proposed Virginia bill would have made three notable changes to the existing restrictions placed on third trimester abortions:

  • The procedure would need to be approved by one physician instead of three, as is currently required.
  • The physician must determine the continuation of the pregnancy would result in the death of the woman or impair her mental or physical health, removing a specification that continuing the pregnancy must be “substantially and irredeemably” damaging to her health.
  • It would have eliminated informed consent provisions imposed in 2012 that required doctors to provide extensive information on the benefits, risks, and alternatives to the procedure and perform a fetal ultrasound at least 24 hours beforehand.

The bill also would change the wording of a clause requiring life support measures be provided if there is evidence the fetus is viable from stating such measures “must be available” to “shall be available.” Life support measures would still be required.

Current Virginia law does not set a limit on how late in a pregnancy an abortion can occur, and the proposed bill would not have changed that. Supporters say the legislation would eliminate unnecessary bureaucratic hurdles for women already facing difficult circumstances.

“Right now, in Virginia, an archaic law stipulates that three separate doctors are required to verify that a person’s pregnancy is urgently threatening their health or life in order to obtain an abortion in the third trimester, which not only delays access to that abortion, but further endangers any person whose pregnancy is urgently threatening their health,” Nash said.

Opponents say removing the “substantially and irredeemably” language would enable a woman to have an abortion in the third trimester because of any minor physical or mental stress.

“Under the bill’s actual text, virtually any claim of impairment would suffice to meet the act’s requirements. Anxiety? Depression? The conventional physical challenges of post-partum recovery? Any of those things could justify taking the life of a fully formed, completely viable, living infant,” French wrote.

According to Nash, the new language would allow women to seek care before the point where their lives are at risk.

“What I have understood that to mean in the past is that providers were unable to provide the care they needed until there was a life-endangering situation,” she said.

NEW YORK

Unlike the controversial Virginia legislation, the contested New York bill has become law. After the Reproductive Health Act was signed earlier this month, Gov. Andrew Cuomo ordered One World Trade Center and other landmarks to be lit pink in recognition of it.

The RHA eliminates a 1970 statute criminalizing abortions after 24 weeks unless the mother’s life was at risk, moving abortion from the criminal code into public health law. Abortions are now allowed late in pregnancy if the fetus is not viable or if there is a threat to the mother’s health.

"The New York Reproductive Health Act allows abortions after 24 weeks for two reasons: fetal non-viability and severe maternal indications wherein continuing the pregnancy would potentially result in her death," Conti said. "Bills like the RHA ensure that when serious medical complications arise later in pregnancy, doctors have access to the full range of medical treatment options, including abortion if that is the safest course."

She emphasized that viability is not determined by the number of weeks the mother has been pregnant but whether the fetus has reached a developmental stage where it can survive outside the uterus using standard medical support measures.

“The U.S. Supreme Court has ruled that states cannot ban abortion before viability, and if a state bans abortion at viability, the law must include exceptions to protect the life and health of the pregnant person,” Nash said. “The New York law mirrors this approach. It limits abortion at viability except when necessary to protect the patient’s life or health.”

Republicans warned it will no longer be possible to charge someone with harming an unborn child in New York, but Democrats argued other statutes like assault and domestic violence would be applicable in such situations. The bill also allows other licensed medical professionals to perform abortions in addition to doctors.

Rep. Roe predicted allowing people who are not doctors to perform the procedure will be dangerous.

“That was incredible to me when I heard that. I think there are going to be problems with that,” he said.

However, Nash stressed this provision was meant to apply to midwives, nurses, and others who have advanced degrees and training.

“They oftentimes are providing care already that is comparable or even more complicated than abortion,” she said.

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