What does ‘for the life and health of the mother’ mean in abortion law?

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New York's newly-signed abortion law permits abortion for any reason up until the 24th week of a pregnancy, and then afterwards in cases to protect the "life and health" of the mother, but what does this mean?


Opponents of the Reproductive Health Act, signed into law Tuesday, say it will result in the killing of healthy, viable, unborn babies. The law's supporters point to the "life and health" clause as a protection of real medical discretion. What exactly is the "life and health of the mother" in law? One Catholic law professor told CNA that it adds up to near abortion-on-demand.


According to Professor Lucia A. Silecchia of the Catholic University of America's Columbus School of Law, the term is "one of the most notoriously vague provisions in abortion jurisprudence," and is included in various opinions and laws without any sort of clear definition as to what it actually means.


Because of the ambiguity, Silecchia said, the phrase is "amenable to widely-varying definitions and interpretations" that "leave enormous discretion to the professional judgment of an individual healthcare provider." Under the new law in New York, which permits non-doctors to perform abortions, this person does not necessarily even need to be a licensed physician.


Silecchia told CNA that she believes the New York law is "as close to an abortion-on-demand statute that can be found in the United States today," even beyond the 24 week limit.


The 1973 Supreme Court case Doe v. Bolton, which was decided the same day as Roe v. Wade, determined that what was "necessary to protect life or health of the mother" is for the physician to decide based on factors like "physical, emotional, psychological, familial, and the woman's age--relevant to the wellbeing of the patient."


"The court believed then that consideration of all these factors was necessary to give the physician wide discretion in this matter," Silecchia told CNA.


"However, these factors have not been clearly defined and attempts to define them have been criticized as interfering with the exercise of medical discretion," she added. She said that there is no requirement for a doctor to even consider whether or not there exists an alternative to abortion that could solve the medical crisis.


"It does not seem to require that the physician even ask whether good counseling, material support, or comprehensive mental health care can be provided to the woman facing this difficult time in her life," said Silecchia.

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"While it is true that the statute says that after that point it must be necessary to 'protect life or health' of the woman carrying a child, this is a phrase that is so amorphous that it is not a meaningful standard," she said.


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