Governor Cuomo keeps wrongly insisting that the abortion provision of his so-called “Women’s Equality Act” aligns with “federal law.”
The “amended” bill Cuomo introduced yesterday contains the same problems as his first attempt. Americans United for Life has repeatedly explained that the bill’s reference to the 1973 case Roe v. Wade, and Roe alone, pointedly ignores important cases which have modified the controversial decision in significant ways.
But Cuomo does not need to take AUL’s word for it. Representative Jerry Nadler, a liberal Democrat representing New York’s 10th congressional district, recently made the same point during a committee mark-up of a federal bill that would ban abortions after 20 weeks.
In Rep. Nadler words, “Since Roe and Doe the Court has narrowed the constitutional protections available to women to protect their right to choose.”[1] Specifically, Rep. Nadler noted that the 1992 Supreme Court case Planned Parenthood v. Casey created an “undue burden” standard of review for abortion-related legislation.
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The Casey opinion held that, by applying a harsh “strict scrutiny” analysis, cases following Roe did not give sufficient weight to the state’s interest in regulating abortion to protect the health of the woman and life of the unborn. By reverting to Roe, the Cuomo bill signals an intention to move away from “federal law” and use strict scrutiny to invalidate any common-sense regulations on abortion that currently exist or are proposed in the future.
Rep. Nadler’s quip “so that’s the law, whether some people like it or not,” was meant to admonish Republicans on the committee who voiced disagreement with the U.S. Supreme Court’s abortion doctrine. But his commentary is one that Governor Cuomo should heed. Codifying Roe is not the same as aligning with “federal law.” To borrow a phrase from Rep. Nadler – this is true whether Governor Cuomo likes it or not.
