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As many of you know, FCLNY helped spearhead an historical U.S. Constitutional lawsuit against NY's Reproductive Health Act (RHA), Smith vs. Hochul (2021). This case was initiated by plaintiff - victims of the RHA, represented by Special Counsel to the WOMEN'S ALLIANCE AGAINST VIOLENCE, an initiative of the Thomas More Society. The Women’s Alliance Against Violence was created to challenge state laws that increase violence against women and children, including unborn children. Among several claims, the case asserted, in brief, that the RHA's repeal of NY's long-standing 'fetal homicide' law incentivized violence against pregnant women, and violated the constitutional rights of near-term unborn children- as did the RHA's applied broad health exception for aborting viable unborn children.
The United States District Court for the Northern District of New York dismissed the case for lack of standing, ruling that the proposed representatives of the class of unborn children had not shown a close relationship to the children. The court acknowledged however that: "[T]he RHA reduced disincentives for violence against pregnant women, making it more likely that third parties will inflict violence against pregnant women."
Portions of the lawsuit were appealed to the United States Court of Appeals for the Second Circuit, which only some weeks ago rendered its decision, affirming the district court's ruling. HOWEVER, the appellate court left the door open for future constitutional challenges to the RHA clarifying the categories of individuals who may legally represent the interests of children, including unborn children, in New York, Connecticut, and Vermont.
The Second Circuit explained that a person "truly dedicated" to the interests of a viable unborn child—who faces imminent risk of harm due to the RHA—may have standing to bring a legal challenge on the child’s behalf. The Appeals court made it clear that this person could include an "expectant father," a "close relative," "other relative," or even a "non-relative."
If all other requirements for standing are met, for example, such an individual could petition a court to recognize a U.S. Constitutional right to life for such an unborn child, and to declare that the RHA violates that right.
To learn more about the contours of legal standing, and the shape a new constitutional challenge to the RHA could take, please reach out, anytime, with any questions.
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