Earlier this year, New York passed the Reproductive Health Act, updating its abortion laws that had been in place even before Roe v. Wade determined abortion rights for women across the country. As expected with any law that doesn’t roll back on abortion rights, the anti-abortion movement threw a tantrum over it. Six months later, anti-abortion supporters still falsely argue that it allows for infanticide and “abortion on demand” right up until birth.
Previously, New York allowed abortions up to 24 weeks gestation and anything after was banned except when necessary to save the life of the mother. It didn’t cover women with nonviable pregnancies or women with health problems that were worsened by pregnancy yet wouldn’t kill her. With the Reproductive Health Act, elective abortions up until 24 weeks remained unchanged, but added exceptions for “absence of fetal viability” and “when necessary to protect a woman’s life or health” that would need a medical provider’s approval.
Anti-abortion supporters and articles claim that it is this inclusion of the mother’s health that makes it possible to get an abortion on demand up until birth. The law itself doesn’t explicitly define “health” and Doe v. Bolton upheld that “health” includes psychological and emotional health. Therefore, it is argued that women in New York can abuse a loophole in the law by claiming emotional or psychological stress and get approval for an abortion.
We could argue there aren’t throngs of women who wake up one morning in their third trimester that their pregnancy is unwanted and would go as far as to manipulate abortion laws to their advantage because they are past the point of legally being able to terminate their pregnancies. But let’s just assume somewhere in the state of New York there is a woman attempting to get a late term abortion under the “health of the mother” exception by faking a mental illness. Would she be able to obtain that abortion as easily as the anti-abortion movement claims? Not exactly, for several reasons.
- It might raise red flags with medical staff
The hypothetical scenario anti-abortion supporters have imagined involves a woman 24 or more weeks into her pregnancy going to a doctor and demanding a specific and invasive procedure not normally used to treat depression before pursuing or even refusing other treatment options. It’s about as suspicious as a person coming into the emergency room demanding prescription pain killers to relieve their pain instead of taking higher doses of Ibuprofen or aspirin first.
- Viability and Delivery
If a woman seeking an abortion after 24 weeks gestation is able to get approved for an abortion for mental health reasons, there’s a reasonable chance abortion wouldn’t be used to terminate the pregnancy.
Jen Villaviencio, an OB-GYN in the Midwest who provides abortions, explained that “if a mother’s life is at risk and she is pregnant with a viable fetus, most often delivery is pursued, not abortion. The care becomes about saving both the life of the mother and the fetus.”
“Viable” refers to the point where the fetus is able to survive outside the womb, with or without artificial support. Most experts agree this is around 24 weeks gestation, which is when New York cuts off elective abortions and any abortions after this point require a doctor’s approval. Therefore, assuming the pregnancy itself is healthy and the fetus is developing normally with no defects, the hypothetical woman we’re talking about is carrying a viable fetus. If inducing a natural delivery or performing a C-section didn’t pose any major risks based on other factors, then those options could be pursued over an abortion.
- How mental health issues are treated
The anti-abortion idea that a woman can fake a mental illness and the doctor will be like “Okay. Here’s your abortion!” is not only a ridiculous theory, but an insulting one that shows how little the anti-abortion movement knows about mental health and how it is treated.
Depression isn’t “being sad” (and, yes, I’ve seen it described that way by some anti-abortion supporters in regards to RHA.) It’s a complex mood disorder that often, if not always, requires work to figure out the best treatment plan that will alleviate symptoms without creating new ones. In the past two years, I’ve been on four different medications in varying dosages before I finally found the right combination that not only works with my brain, but doesn’t make me want to puke out my guts and faint from dizziness. Even then, I have to make follow up appointments to check if they’re still working, inform my doctor if they ever stop working or made me feel worse, and make adjustments when and if they are needed. If it was discovered I had suicidal thoughts I planned to act upon, I could be placed in a mental health facility for up to 72 hours under Wisconsin’s Chapter 51 law. Anyone I’ve ever known seeking treatment for depression has ran the gauntlet through this same hit-or-miss process to find out what actually works for treating their depression.
Why would a pregnant woman with no previous documented mental health history be able to bypass this process for treating a complicated illness that sometimes requires long-term treatment just because they are seeking abortion services? Mental illness is not something that can be cured instantaneously with a single use treatment or procedure and any doctor faced with a woman asking for an abortion late into her pregnancy to cure her depression should be aware of this.
- It still needs a doctor’s approval
Anti-abortion supporters talk about this loophole as if it guarantees that a woman will get an abortion if she just asks on the grounds of depression. The reality is the woman needs the approval for a medically indicated abortion from a medical provider, who can refuse approval if he or she found it unnecessary for treatment or even detrimental to the woman’s health health. It’s not exactly “abortion on demand until birth” when after a certain point the entire decision hinges on the expressed approval of a specific person. Additionally, several New York laws also allow for religious refusals to provide abortion care, which the RHA does not interfere with.
But that’s between a woman and her doctor…as it should be.
5. The number of doctors that can perform third trimester abortions
If a woman heading into her third trimester gets approval for a medically indicated abortion, there has to be a doctor qualified to perform a third trimester abortion. How many doctors can perform that procedure? Currently, there are a total of four doctors that openly practice abortions into the third trimester.
Not four doctors in the state of New York, but four doctors in the entire country spread across three clinics in Colorado, Maryland, and New Mexico. For women living in New York’s most famous city, New York City, its an almost 4 1/2 hour drive to get to the closest clinic in Bethesda, Maryland.
If there aren’t any doctors in New York that can perform the procedure then the woman may have to travel to another state to have it done. If money or travel is an issue, an abortion may not be possible for our hypothetical “woman in the later stages of pregnancy faking mental illness to obtain approval for a medically indicated abortion”.
It is within the realm of possibility that women could exploit a perceived loophole in the Reproduction Health Act and fake a mental illness to obtain a post-viability point abortion, but it seems unlikely with several road blocks a woman would have to go through in order to do so. At the very least, it likely isn’t as easy as the anti-abortion crowd makes it out to be.