New York's Abortion Law and Its Implications for Children's Rights – Sosamma Samuel-Burnett

By Sosamma Samuel-Burnett, J.D.
Founder/President, G.L.O.B.A.L. Justice

This week the State of New York passed The Reproductive Health Act, legislation that expands abortion to include full-term pregnancies if the woman’s health is at risk.  While the purpose of the expansion is to protect women’s rights, the result of this legislation may create a number of legislative, legal, moral, and societal challenges.

Abortion advocates have deemed this legislation as a method of protecting abortion rights should Roe v. Wade be overturned.  But if Roe v. Wade was overturned, that would then require the NY law also to be overturned.  Federal law stands when in conflict with state laws.  The idea of broadening abortion rights in a state to protect against a potential future federal prohibition is logically and legally flawed. This broadening raises further concerns for legality and morality should Roe be overturned or not. 

Abortion advocates regularly point to Roe v. Wade as the principal case upholding a right to abortion. But it is the more recent 1992 Supreme Court case Planned Parenthood of Southern Pennsylvania v. Casey that adds a significant element to this right.  In Casey the court decided 5-4 to reaffirm Roe but also allowed states to regulate abortion, particularly when the baby has reached viability, as long as there is not an undue burden on the woman – which would encompass the woman’s health.

What we should understand about abortion rights under Casey is that women are protected but this “right” is not limitless.  There are many good reasons to regulate abortion, especially later term abortions, including for the physical and psychological health of the woman, the child, and the common good.  And with the parameters of Casey, there isn’t a need for New York’s legislation other than to extend to full-term pregnancies.  That is the crux of the moral challenge of this legislation.  Abortions at full-term raise serious concerns for the rights of the child and for society. 

Abortion advocates underscore the importance of providing abortion access as a way of protecting a woman’s rights — especially the right to control what happens to her own body.  While that right is certainly primary for a woman, the right is also tempered by one significant and overriding factor.  The woman’s body during pregnancy is not only her own.  There is another body and another life housed within her own.  Unlike other circumstances related to a woman’s body, determining whether or not this other body, a child, lives or dies prior to birth is beyond the scope of a woman’s rights to control her body.  That may be a biologically troubling fact, but it is the reality of a pregnancy. As such, a woman’s rights to her body are not limitless if they infringe on another’s rights.  

Abortion advocates have characterized the developing baby as a fetus and not as a person and indicate that the unborn do not have rights.  But at viability or full-term, many of the previous ideas of a fetus not being able to have rights or survive without the mother, change.  At the point when a child can survive without the mother’s body, a woman deciding whether or not that child is born impacts whether that child can claim rights they would otherwise have. If the child could otherwise have the right to life, if not for the woman’s decision to terminate the pregnancy, then the women is denying that child’s fundamental human rights. The very nature of human rights, and right to life being paramount among them, is that the right is inherent and can’t be taken away without violation.  Further, even a third party can advocate on behalf of those who are not able to claim their human right.  So even if the woman making the decision to terminate the pregnancy at full-term, a doctor or others can protect the rights of the child. 

International human rights treaties particularly the international Convention on the Rights of the Child are aimed at protecting children, including against infanticide — the killing of children, usually by a parent.  This is a crime, while practiced in various lesser developed countries against young children that is universally condemned as a violation of life and children’s rights.  Abortions, especially late term, are as abhorrent as any of the forms of infanticide that we see in developing countries that we have condemned as human rights violators.   

As a woman, a mother, a human rights advocate, I urge New York and the American people to consider the protection of both our children and women in the context of pregnancy and in our pursuit of human rights for all.
— Sosamma Samuel-Burnett

Granted there may be extenuating circumstances such as the woman’s health which may impact the desire or need for abortion. But in instances where neither severe health nor severe conditions are involved, and when other medical procedures are available, personal choices made based on personal circumstances do not warrant such a severe decision.  While women may wish to make the choice to terminate a pregnancy for a myriad of reasons, terminating a child’s life and especially at the point of viability or at full term is tantamount to infanticide and a violation of the right to life of that child.

Abortion advocates would also point to a range of societal issues such as unwanted pregnancies, forced pregnancies, rape/incest, and even back-room abortions without medical care as reasons to allow abortions to be lawful.  But rarely do they discuss the societal issues raised by abortion, especially late term abortions.  Abortion in general has significant socioeconomic and racial elements.  Significant numbers of aborted babies are from poor women and women of color, particularly African Americans.  Some argue that abortion creates genocide against these populations and their potentials.  Even if a woman is permitted or chooses to have an abortion, the trauma from that, especially in late term, is significant for her and has implications for her lifetime. 

Further, as a matter of ethics and morality, we cannot address a societal ill or issue by permitting an even greater ill or issue.  Unwanted pregnancy can be mostly addressed by making more appropriate personal choices, severely criminalizing rape and other sexual misconduct, and providing adequate societal supports for pregnancy, child-rearing, foster care, and adoption. Our emphasis must be in the areas of civil society not in expanding abortion.  

With this expansion of abortion, New York seems to be playing a legislative chess match — trying to make a move that positions them in the event of the Supreme Court overruling Roe v. Wade.  But the reality is not like a chess match, but more like playing Russian roulette with human rights and morality.  Now or later, someone will lose.  In the name of women’s or other rights, we will lose not only the life of a child or many children, but also the loss to families, and the collective loss to society.  New York may lose the next Bogart, Gershwin, or Abdul-Jabbar. 

Abortion in general raises tremendous loss for the potentials for each life and for our world.  And late term abortion brings us to major human rights violations against the child.  As a woman, a mother, a human rights advocate, I urge New York and the American people to consider the protection of both our children and women in the context of pregnancy and in our pursuit of human rights for all.

The views and opinions expressed are those of the author(s) and do not imply endorsement by G.L.O.B.A.L. Justice. We are a faith-based, nonpartisan organization that seeks to extend the conversation about justice with a posture of dignity and respect.