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Zeldin voted for a bill that prohibited abortions after 20 weeks with narrow exceptions.
The bill included an exception to preserve the life of the pregnant woman. It did not include an exception if the woman’s health was at risk.
Gov. Kathy Hochul has stepped up her attacks on Rep. Lee Zeldin, the Republican primary winner and her opponent in the November election.
A Hochul campaign advertisement on Facebook accuses Zeldin of having views that are out of step with New York voters.
"He’s voted for abortion bans even when the mother’s health is at risk," the ad states.
The bill passed in the House, with Zeldin's support, and has not passed the Senate.
Voted on during the 115th Congress, the "Pain-Capable Unborn Child Protection Act" would have banned abortions after 20 weeks and outlined circumstances where exceptions to protect the life of the pregnant woman and for rape and incest would be allowed.
The exception to protect the life of the mother stated: "In reasonable medical judgment, the abortion is necessary to save the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself, but not including psychological or emotional conditions."
When abortion bans allow exceptions to protect a mother, the legal distinction between "life" and "health" is important.
We asked Hochul’s campaign about the claim that Zeldin favors bans that don’t take into account the health of the mother. Jerrel Harvey, a Hochul spokesperson, provided a section of the Congressional Record where Democrats put forth an amendment during a floor debate that would have considered a mother’s health - not only her life - which Zeldin and other Republicans voted against.
"As currently written, H.R. 36 shows no concern for the long-term health of the mother, her future ability to bear children, or her ability to care for her family," Rep. Julia Brownley, D-CA, said during debate before the bill was voted on in 2017. "This bill would force women to carry pregnancies to term, even when their health is at risk."
Zeldin’s campaign spokesperson, Katie Vincentz, said that Brownley’s amendment wasn’t a substantive one, and that Zeldin’s vote was on a motion to recommit, which is a procedural vote that is typically voted on along party lines. Vincentz said the bill already had an exception to protect the life of the mother.
An exception in abortion laws allowing consideration for the health of the mother, in addition to her life, had been an established precedent. In a case in 2000, Stenberg v. Carhart, the U.S. Supreme Court found that a Nebraska statute that lacked a health exception was unconstitutional, and Justice Stephen Breyer, writing for the majority, rejected arguments that there was no need for a health exception. In 2007, however, the court upheld a federal partial birth abortion ban that did not include a health exception.
Experts said that without a health exception, health care providers can be fearful about what treatment they provide.
Doctors work hard to care for patients and stay within the bounds of the law, and bans offer language that is often incorrect, not clinically meaningful, and is therefore confusing to health care providers, said Dr. Jen Villavicencio, of the American College of Obstetricians and Gynecologists, which supports abortion rights.
"The progression of pregnancy is gradual, as are the complications associated with it, whether they are newly emergent complications or the worsening of chronic conditions," Villavicencio said. "In some cases, the life of a pregnant person may indeed be imminently in danger, but in other cases, that line may be harder to identify."
Cary Franklin, a law professor at UCLA and faculty director of the Center on Reproductive Health, Law, and Policy, said that the life exception to H.R. 36, as written, does not protect the health of the pregnant person.
"There’s a chilling effect when you have a life exception that doesn’t include health," she said. "A lot of doctors are worried and fearful that if they provide the best care in a given circumstance, that they will be hauled into court."
In congressional testimony in 2013, Dr. Anthony Levatino, a former abortion provider who speaks out against abortion, said that abortion isn’t necessarily required later in pregnancy, and that he was able to save patients whose lives were threatened by their pregnancies by delivering their babies.
"In most such cases, any attempt to perform an abortion ‘to save the mother's life’ would entail undue and dangerous delay in providing appropriate, truly life-saving care," he said.
Critics of the bill said that it did not take into account mental health conditions, such as suicidal thoughts, and puts the threat of penalties in place for doctors, which can limit care in urgent situations.
In her ad, Hochul said Zeldin voted in favor of abortion bans even when the health of the expectant mother is at risk.
For the bill cited in the ad, that's true if the health concern for the expectant mother wasn't life threatening.
The bill he voted for included an exception to the ban when the life of the expectant mother was in peril.
Zeldin voted in favor of a ban after 20 weeks gestation, which included an exception to protect the life of the pregnant woman. The ban did not allow exceptions for considerations of the long-term health or the mental health of the pregnant person.
PolitiFact's ruling on the governor's claim requires understanding the distinction between the expectant mother's life and her health.
Simply put, in this legislation, Zeldin was OK with an exception to the abortion ban if the expectant mother's health problem put her life at risk. He wasn't OK with an exception if the health problem wasn't life threatening.
Given that distinction, we rate this Mostly True.
Kathy Hochul campaign ad, via Facebook, July 5, 2022. Accessed July 11, 2022.
Congress.gov, H.R. 36, 115th Congress. Accessed July 11, 2022.
Congress.gov, Congressional Record, 115th Congress, Oct. 3, 2017, p. H7726. Accessed July 12, 2022.
Clerk of the House of Representatives, Roll Call #548, H.R. 36, Oct. 3, 2017. Accessed July 12, 2022.
Clerk of the House of Representatives, Roll Call #549, H.R. 36, Oct. 3, 2017. Accessed July 12, 2022.
Email interview, Jerrel Harvey, spokesperson, Kathy Hochul campaign, July 12, 13, 2022.
ACLU, Letter on H.R. 36, the "Pain-Capable Unborn Child Protection Act," Oct. 2, 2017. Accessed July 12, 2022.
National Women’s Law Center, news release, "H.R. 36 is an Unconstitutional Ban on Abortion That Would Harm Women’s Health and Rights," Oct. 3, 2017. Accessed July 14, 2022.
Statement, Jen Villavicencio, MD, MPP, FACOG, lead for equity transformation, The American College of Obstetricians and Gynecologists, July 12, 2022.
House of Representatives Judiciary Committee hearing transcript, "District of Columbia Pain-Capable Unborn Child Protection Act," May 23, 2013. Accessed July 14, 2022.
The Washington Post, "Abortion foes push to narrow ‘life of mother’ exceptions," May 13, 2022. Accessed July 14, 2022.
Email interview, Katie Vincentz, spokesperson, Lee Zeldin campaign, July 14, 2022.
Phone interview, Cary Franklin, McDonald/Wright Chair of Law, faculty director, The Center on Reproductive Health, Law, and Policy, UCLA School of Law, July 14, 2022.
Congressional Research Service, "Abortion: Judicial History and Legislative Response," Jan. 26, 2018. Accessed July 13, 2022.
Society for Adolescent Health and Medicine, letter, "Opposition to H.R. 36," Oct. 2, 2017. Accessed July 14, 2022.
Notre Dame Law Review, Vol. 80, Issue 1, Article 13, "Post-Viability Abortion Bans and the Limits of the Health Exception," Michael J. Tierney, Nov. 1, 2004. Accessed July 14, 2022.
Pro-Life Wisconsin, "Can there be exceptions?" undated. Accessed July 15, 2022.
UCLA Law Review, "Mental Disability, Exceptional Abortion, and the Pain-Capable Unborn Child Protection Act," Beth Ribet, Feb. 2, 2019. Accessed July 15, 2022.
House Committee on the Judiciary, news release, "FACT-SHEET: H.R. 36, The So-Called Pain Capable Unborn Child Protection Act," Oct. 3, 2017. Accessed July 15, 2022.
U.S. Supreme Court majority opinion, Stenberg v. Carhart, decided June 28, 2000, via Cornell Law School, Legal Information Institute. Accessed July 15, 2022.
National Institutes of Health, National Library of Medicine, "US Supreme Court approves ban on ‘partial birth abortion,’" April 28, 2007. Accessed July 15, 2022.
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