Abortion Legislation: A Wild Card Issue in 2019 NJ Elections

Former EPA Regional Administrator Alan J. Steinberg discusses how the controversial new state legislation in 2019 in Alabama and New York regarding abortion will play a pivotal role in national and state elections over the next two years, at least.

With the passage of new controversial state legislation in 2019 in Alabama and New York regarding abortion, this issue will play a pivotal role in national and state elections over the next two years, at least.   

The New York Reproductive Health Act, signed into law by Governor Andrew Cuomo this past January, legalized abortion at any time “when necessary to protect a woman’s life or health,” or in the absence of fetal viability.  The act allows licensed health care practitioners other than physicians to perform abortions if doing so falls within their lawful scope of practice. 

The Alabama Human Life Protection Act, signed into law by Alabama Governor Kay Ivey on May 15, was intended to be a direct challenge to all previous US Supreme Court decisions legalizing abortion.  The law strictly prohibits abortion and only allows exceptions to avoid a serious health risk to the unborn child’s mother, for ectopic pregnancy and if the unborn child has a lethal anomaly.  It does not even make an exception for rape and incest victims. 

In this November’s New Jersey 2019 legislative elections, abortion can best be described as a “wild card” – an issue whose impact is unpredictable and uncertain. 

The 2011 New Jersey legislative redistricting commission plan was basically an incumbent protection program.  In the 2019 Legislative elections, which is for the most part limited to Assembly races, the four most competitive contests are the following: 

1)The First Legislative District, comprised of portions of Cumberland, Atlantic, and Cape May counties, where a Democratic incumbent slate of Senator Bob Andrzejczak and his two fellow incumbent legislatorsDemocrat Assemblymen Bruce Land and Matthew Milam will face a challenger slate of GOP Senate candidate Mike Testa, Jr. and his two GOP Assembly running mates, Erik Simonsen and Antwan McClellan. 

2) The Sixteenth Legislative District, comprised mostly of portions of Somerset and Hunterdon Counties, with several towns in Middlesex and Mercer County.  For the first time in decades, the Assembly incumbents are both Democrats, Andrew Zwicker and Roy Freiman.  They will face Republican challengers Mark Caliguire and Christine Madrid. 

3) The Twenty-First District, comprised of parts of Union, Somerset and Morris counties and representedby two prominent incumbent Republicans, Assembly Republican Leader Jon Bramnick and Nancy Munoz.   They will face Democratic challengers Lisa Mandelblatt and Stacey Gunderman, victors in yesterday’s primary and two Independent Conservatives, Martin Marks and Harry Pappas. 

4)  The Twenty-Fifth District, comprised of twenty Morris County municipalities and one Somerset County municipality, Bernardsville Borough.  Incumbent Assemblyman Anthony Bucco and his running mate, Brian Bergen, winner of yesterday’s primary, will face Democratic challengers Dr. LisaBhimani and Darcy Draeger. 

Before analyzing these races and the impact of the abortion issue on them, it is essential to briefly review four factors: 1) Current federal law; 2) the history of the politics of abortion in New Jersey; and 3) recent legislative proposals regarding same. 

The prevailing law on abortion is the 1992 US Supreme Court decision in Planned Parenthood v. Casey, which modified its 1973 Roe v. Wade decision.  While reaffirming Roe’s holding that a woman’s right to abort a nonviable fetus is constitutionally protected, it abandoned Roe‘s trimester framework in favor of a standard based on fetal viability and overruled Roe‘s requirement that government regulations on abortion be subjected to the strict scrutiny standard.  The Roe decision defined “viable” as “potentially able to live outside the mother’s womb, albeit with artificial aid.”  The Court in Casey acknowledged that viability may occur at 23 or 24 weeks, or sometimes even earlier, in light of medical advances. 

It is conventional wisdom to think of New Jersey as a “pro-choice” state, but that is an over-simplification of the issue.  The majority of New Jersey voters favor basically the continuation of the Casey decision, maintaining abortion as an option in the case of a nonviable fetus, but strictly prohibiting abortion in cases of fetal viability, except in cases of rape, incest, and protection of life and health of the mother. Whenever there is a federal or state development which may impact the Casey framework, abortion becomes a statewide issue.  The gubernatorial elections of 1989 and 1997 stand out in this regard. 

In 1989, pro- choice Democrat Jim Florio would have comfortably defeated his pro-life Republican opponent, Jim Courter in any event.  A US Supreme Court decision immediately following the June primary, however, which gave the states greater latitude in determining how and when abortions may be restricted, helped to transform the race into a massive political landslide for Florio, magnified by Courter’s clumsy waffling on the issue. 

In 1997, Republican Governor Christie Whitman conditionally vetoed a partial birth abortion ban passed by the legislature.  She did not defend this abortion procedure but instead pointed to the bill’s constitutional flaws and offered ways of remedying them.  Her veto, however was overridden by the then Republican controlled Legislature.  

The Constitutional basis of Governor Whitman’s veto was vindicated by a unanimous Federal Third Circuit Court of Appeals 1999 decision which struck down this statute, emphasizing that it had no exception for the life and health of the mother. The opinion was written by Maryanne Trump Barry, sister of our current president, and supported by a separate yet concurring opinion written by Samuel Alito, currently a US Supreme Court Justice. 

Whitman, however, paid a major political price in the 1997 gubernatorial election for her principled decision.  Normally, she would have been reelected by a close but comfortable margin over her Democratic opponent, Jim McGreevey.  Her veto of the partial birth abortion ban resulted in substantial Republican defections to the pro-life Libertarian candidate Murray Sabrin, resulting in her winning reelection by a paper-thin margin of less than one percent. 

Recently, there have been two significant New Jersey legislative measures regarding abortion. 

Assembly Resolution AR 181 memorialized Congress and the President of the United States to take certain actions to ensure that a woman can freely make reproductive health decisions and access reproductive health care, including abortion.  It passed the Assembly on September 27, 2018 by a vote of 47-15, with 11 abstentions and 7 members not voting. 

In December, 2016, a bill was introduced in the State Senate by Republican Senators Joe Pennachio and Steve Oroho, the “Pain-Capable Unborn Child Protection Act,” prohibiting abortions after 20 weeks, based upon the fact that medical studies have shown unborn children can feel pain in the womb at least by 20 weeks, if not before.  

My personal view is that this is well-crafted legislation.  The woman who receives the abortion cannot be prosecuted. The bill provides an exception in cases of rape against an adult woman as long as she has received medical care or counseling outside of the abortion industry. There is also an exception for cases of rape or incest of a minor as long as the abuse has been reported to social services or law enforcement to prevent ongoing abuse of a child. There is also a life of the mother exception.  The legislation is supported by Marie Tasy, Executive Director of New Jersey Right to Life, who assisted in its crafting. 

I also believe that this legislation, which is currently pending as S537/A1686 has the capability of receiving support of pro-choice voters.  Yet it will almost certainly will never receive consideration by either the Assembly or Senate, as long as they continue to be controlled by Democratic pro-choice leadership.  The legislation will serve, however as a focal point for the ongoing debate in New Jersey on the abortion issue. 

Keeping in mind the foregoing and the fact that the politics of abortion can differ from district to district, the following is an analysis on how the abortion issue could affect this November’s four competitive New Jersey legislative races described herein above.  

The First Legislative District 

In a bleak year for the GOP in New Jersey, largely due to brand damage from Trump toxicity, Mike Testa is a bright star in the Republican firmament.  He will win the Senate seat and carry his two Assembly running mates with him to victory.  

And in this traditionally Republican legislative district, where the GOP has a slight registration edge, Testa’s unequivocal pro-life position is a definite positive. 

Testa is right out of central casting for the ideal GOP candidate for this seat.  A highly regarded lawyer, he is a scion of one of the most respected families in the Cumberland County legal community.  His grandfather, Frank Testa was a venerated judge.  His highly regarded service as Cumberland County Republican chair has given him a comprehensive knowledge of the imperatives of the ground game in this district.   He is both pro-Second Amendment and pro-life, and he is much in tune with the ideological tendencies of the First District. 

Mike Testa is most out in front with his pro-life views.  He has superb social media, including videos of his setting forth most cogently his anti-abortion positions.  His superb communication skills enhance his social media as well. 

Testa’s victory this November will be the best Election Night news for the GOP in New Jersey.  And it will be a significant triumph for the New Jersey Right-to-Life as well. 

The Sixteenth Legislative District  

The Republicans are attempting to regain two Assembly seats they controlled as recently as 2015.  But the odds are highly against it.   While unaffiliated voters comprise the largest political voting segment, the Democrats lead the GOP in registered voters by over seven points. 

And the strong pro-choice orientation of this district will be an additional obstacle to a GOP takeover.  In 1989, the abortion issue was a major factor in Jim Florio carrying Somerset County, then a Republican stronghold, but one tending strongly pro-choice.   

Somerset County is no longer a Republican County, and the association in most voters’ minds of the GOP with the pro-life movement will be a major factor in unaffiliated voters supporting the Democratic incumbents, regardless of what position the Republican challengers take on the issue.  It appears that Jack Ciattarelli, who left the Assembly in January, 2018, will be the last Republican to represent this District for quite a while.

The Twenty-First Legislative District 

This race in this district offers the Democrats the best opportunity in this election cycle to pick up two Assembly seats.  The Democrats now have a registration edge, and Senator Tom Kean, Jr.  will not be at the top of the GOP ticket this November.  Trump toxicity is a cancer with a particularly destructive impact on the Republican brand in Legislative District 21.  The independent conservative Martin-Pappas candidacies have the potential of causing substantial defections from the GOP Bramnick-Munoz Assembly ticket. 

And to top it off, the abstention by Bramnick and Munoz on AR181, while claiming to be pro– choice has earned them the distrust of both pro-life and pro-choice voters.  The stage is set for a Bramnick -Munoz defeat in which apparent inconsistency on abortion on the part of the incumbents plays a significant role. 

The Twenty-Fifth Legislative District 

The Democrats are targeting this district, based upon the outstanding showing in Morris County by Mikie Sherrill in her successful 2018 campaign for Congress.  In my view, they are being over-optimistic.  

Sherrill’s strong showing was due to two factors: 1) the midterm backlash against Trump; and 2) her unique qualities and background as a candidate.  Her victory did not signal an end to GOP dominance in the 25th District. 

The pro-life record of incumbent Republican Assemblyman Anthony Bucco may actually be a positive for his campaign.  He is a prime Assembly sponsor of the New Jersey Pain Capable Unborn Child Protection Act, described hereinabove.  Given the fact that the bill only prohibits abortions of fetuses over twenty weeks old, the bill could gain growing acceptance, even among pro-choice voters, as a measure to eliminate late term abortions.  Public opinion in recent years has moved steadily in a pro-life direction on the late term abortion issue.  If Bucco’s running mate, Brian Bergen supports this legislation, the two could present a united front on the issue.  

Bucco and Bergen are likely to prevail, and the abortion issue may prove to be a plus for them.  

Conclusion:   While abortion will be a “wild card” campaign issue, it looms as a major factor in the legislative elections in the Democratic incumbent First and Republican incumbent Twenty-First district races, two legislative districts likely to flip in Campaign 2019.  It also will assist the Democrats and Republicans in keeping control of their Assembly seats in the Sixteenth and Twenty-Fifth district races, respectively.

Alan J. Steinberg served as Regional Administrator of Region 2 EPA during the administration of former President George W. Bush and as Executive Director of the New Jersey Meadowlands Commission under former New Jersey Governor Christie Whitman. 

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