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Opposition To Monroe County Resolution ‘Adopting Monroe County Policy Opposing Partial Birth Abortions’

Testimony presented by New York Civil Liberties Union In Opposition To Monroe County Resolution ‘Adopting Monroe County Policy Opposing Partial Birth Abortions’

The NYCLU defends civil liberties including a woman’s right to make her own decisions about childbearing, free from government interference.

The NYCLU opposes the proposed resolution. It is a thinly veiled attempt to deny women the fundamental right to get an abortion by punishing doctors, health centers, hospitals and community organizations that make abortions accessible.

The NYCLU will take whatever legal steps are necessary to stop this policy from taking women’s health and liberty hostage to an anti-choice agenda.

The resolution is unconstitutionally vague and violates fundamental rights.

The proposed policy is unconstitutional and in direct violation of state law. It is patterned after similar bans that have been enjoined by virtually every federal court that has reviewed them. They have found that the laws are too vague and that they violate women’s constitutional right to privacy. The courts have rejected the hype that so-called partial birth abortion bans are limited to a single late term procedure. Doctors have already gone on record to say they cannot be sure which abortions fall within the term.

This resolution is even vaguer than the laws already struck down by the courts. It does not even define so-called “partial birth” abortion. This is not surprising. It is not an accepted medical term.

No amount of political posturing can negate the fact that this resolution seeks to stop all abortions without regard to women’s health and to prevent physicians from exercising their best medical judgments based on an individual patient’s circumstances. You are not doctors. You have no business trying to interfere in women’s medical decisions.

Inflammatory terminology may temporarily deceive the public. But the courts, which must read the fine print, have not been fooled. And they will not be fooled by this resolution.

You will all remember that the Roe v. Wade case, handed down by the Supreme Court twenty five years ago, marked a commitment by this nation to guarantee that women’s lives would no longer be at risk by illegal, back alley abortion and unwanted pregnancies. Since that case was decided, need I remind you that women’s lives have been enhanced, the rate of maternal mortality has dropped and children’s lives have improved. This resolution would cast aside that landmark decision and put women’s health in danger.

The resolution violates state and federal Medicaid laws.

This resolution also violates the State and Federal Medicaid Law. The State of New York funds medically necessary abortions under its Medicaid program. Moreover, federal law requires every state to fund abortions in the case of rape or incest. Federal law also requires that a state’s Medicaid program provide uniform benefits statewide. Monroe County does not have the authority to disqualify its citizens from Medicaid benefits to which recipients in every other part of the state are entitled.

This resolution would affect Medicaid Managed Care contracts between the county and Health Maintenance Organizations, as well as smaller county contracts for services such as rape crisis intervention and teen pregnancy prevention services. It would apply to hospitals where abortions are performed or which are affiliated with abortion providers.

Monroe County has many agencies serving people who are in need of medical and public health services. This resolution puts these public health services — and the individuals who need them — in jeopardy.

The resolution imposes unconstitutional conditions on funding

This resolution doesn’t only prohibit the county from meeting its legal obligations under the state’s Medicaid program. It prohibits an agency from receiving any government funds if it or its affiliates perform the proscribed procedures for private patients or through some other funding mechanism.

A hospital or clinic that employs a physician who performs this procedure in his or her private practice could very well be disqualified from a County rape crisis intervention or sexually transmitted disease (STD) prevention contract. The resolution thus crosses the line clearly established in Rust v Sullivan when it sustained the Title X gag rule. There the United States Supreme Court held that while the government could put restrictions on the use of its money, it could not constitutionally dictate what recipients of government funding do with non-governmental funds. That is precisely what this resolution does. For this reason, this resolution is an unconstitutional restriction that should be struck down in court.

The NYCLU urges you to reject this invitation for the county legislature to practice medicine without a license. This resolution puts women’s health in serious jeopardy. It is illegal and unconstitutional. And, as attorneys fees awards in similar cases amply demonstrate, it will be very expensive to defend in court.

The New York Civil Liberties Union urges the Monroe County Legislature to vote yes for womens health and liberty: vote no on the resolution.

October, 1998

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