Second Circuit takes up challenge to NY reproductive health law

MANHATTAN (CN) — An anti-abortion advocate on Friday sought to revive a proposed class action against New York officials claiming state abortion laws violate the 14th Amendment rights of “viable unborn children.”

“This is the only group of human beings in the United States that have not been afforded some level of protection,” said Teresa Stanton Collett, a well-known anti-abortion lawyer and member of the Federalist Society, to a panel of Second Circuit judges.

Collett is representing Mary Doe, an unnamed advocate looking to be appointed as a legal representative for a proposed class of fetuses. Doe brought the lawsuit last year against New York Governor Kathy Hochul and other elected officials, claiming the state’s Reproductive Health Act presents an “imminent danger” to fetuses, opening them up to “lethal attacks” akin to homicide.

But after a lower court dismissed the action, Collett argued Friday to the Second Circuit panel that fetuses should be afforded the same rights to personhood as born children. 

She claimed that “undocumented aliens” and “even hippopotamuses” are afforded protections under the U.S. Constitution, referencing a 2021 ruling from a federal court in Ohio that deemed hippos owned by drug kingpin Pablo Escobar to be recognized as “interested persons.”

Former Governor Andrew Cuomo passed the Reproductive Health Act in 2019 to safeguard state abortion access from potential federal decisions. But Collett argued the act’s impact on fetal homicide law shows that it’s a slippery slope.

“There were charges of a homicide that were having to be dismissed, where a woman and her unborn child had been killed, and the prosecutor originally brought dual homicide charges,” Collett said. “But once the law went into effect, the prosecutor had to drop the second charge.”

U.S. Circuit Judge Steven Menashi, a Donald Trump appointee, pushed for clarity. “The second charge, but not the first charge, right? It’s still being penalized,” Menashi said. “The assault on the pregnant woman is being penalized and the effect on the unborn child is aggravating circumstances that could lead to a more severe penalty.”

Collett didn’t entirely accept that premise, however. She argued that doing so would violate the 14th Amendment’s equal protection clause, citing a nondescript article published in an American medical journal.

“In that article, two doctors argued that, in fact, it should not be considered homicide when a small child under the age of two, who is disabled, is killed,” she said. “It’s possible that the state could adopt that; that would clearly violate the 14th Amendment. This case is no different.”

Menashi asked: “Why would it obviously violate the 14th Amendment?”

Collett answered, “Your honor, the purpose of the 14th Amendment was to ensure equal protection of the laws. And in that instance, a two-year-old would be treated differently for purposes of protection of his life through criminal law than a two-year-old and one day.”

The state claims otherwise. Assistant Solicitor General Laura Etlinger told the court Friday that “a fetus is not a person within the meaning of the 14th Amendment.”

“They’re not persons within the meaning of the Constitution,” Etlinger said. “They would not be in a position to assert constitutional rights, which can also be viewed as a standing question because there is no cognizable, constitutional injury.”

But Menashi shot back that this argument is exactly what the plaintiffs seek to litigate.

“If one were to conclude that unborn children are persons under the Constitution, would that entail the conclusion that states cannot allow abortion?” the judge asked.

“It would be a troubling question,” Etlinger replied.

It’s perhaps a question the judges won’t need to answer, though — at least not in the near future. The plaintiffs only seek enough leeway for the case to be argued in court. 

U.S. Circuit Judges Richard Sullivan, a Donald Trump appointee, and Debra Ann Livingston, a George Bush appointee, rounded out the panel, which did not indicate when or how they would rule.

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