Second Circuit rejects challenge to NY abortion law

NEW YORK (CN) — A challenge to a New York law that permits abortion at any stage of pregnancy was rejected by the Second Circuit on Tuesday, with the court holding that a social worker can’t bring a class-action lawsuit on behalf of all the viable fetuses in the state.

The anonymous social worker, dubbed Mary Doe, sued New York Governor Kathy Hochul and other elected officials and claimed that the law presents an “imminent danger” to fetuses and opens them up to “lethal attacks” akin to homicide, which violates the fetuses’ constitutional right to equal protection.

But she didn’t have standing to bring a lawsuit because “she failed to identify or otherwise describe any class member in the viable fetus class that she sought to represent,” wrote U.S. Circuit Judge Richard Sullivan in a 43-page decision.

The 2019 law, signed by former Governor Andrew Cuomo, was designed to protect abortion rights in anticipation that the Supreme Court might overrule Roe v. Wade , which it did three years later. The law allowed abortion at any stage of pregnancy and repealed a prior “fetal homicide” statute that said a person who assaulted a woman could be charged with a separate crime if the attack resulted in the loss of a viable fetus.

To have standing to sue, a plaintiff must be able to identify at least one aggrieved party so that there’s a clear clash of interests for a court to resolve, Sullivan wrote.

“Permitting plaintiff-less complaints like Doe’s would invite the very sort of advisory opinions that Article III seeks to safeguard against,” he said. “Any number of concerned bystanders could … challenge state or national laws they disagree with, even though they lack a personal stake in the dispute.”

Doe’s secondary argument was that she could identify a specific fetus, “Nicholas,” who was in danger from the repeal of the fetal homicide law because Nicholas’ mother had been assaulted in the past by a former partner and the partner might assault her again since there would be no legal repercussions if the fetus were killed.

But Sullivan rejected this theory as well.

“It is not sufficient to speculate that a traceable injury might happen some day; the plaintiff must plausibly allege a substantial risk that such an injury will happen in the near future,” he said.

And Doe hadn’t proved such a risk. Nor did she explain why repealing the fetal homicide law would invite an attack, inasmuch as the former partner could still face up to 25 years in prison just for assaulting the mother.

The ruling on the standing issue relieved the court from having to decide the much thornier question of whether a fetus is a person under the U.S. Constitution, which had led to a colorful discussion at oral argument. At one point, Doe’s lawyer, Teresa Collett, pointed out that “even hippopotamuses” are protected by the Constitution, citing a 2021 ruling from a federal court in Ohio involving hippos formerly owned by drug kingpin Pablo Escobar.

“We take no position today with respect to whether a fetus may otherwise meet the requirements for Article III standing,” Sullivan was careful to note.