New York abortion rights back in focus
In Empire State, procedure still technically a crime
New York stunned the nation when it legalized abortion in 1970, according to the New York Times, becoming the second state to broadly legalize the procedure and the first to allow it for out-of-state residents.
It was a liberal abortion law at the time; women flocked to the state to end unwanted pregnancies and in just a few years, three out of every five abortions in New York were performed on women from out of state. The U.S. Supreme Court would make it legal across the land three years later with its landmark Roe v. Wade decision, affirming at the time a now familiar sentiment that where New York leads, others would follow.
But just how liberal are New York’s abortion laws by today’s standards? According to legal scholars and advocates — not very. And that matters, they say, as the nation gears up to fill a vacancy on the Supreme Court that many believe could pivot the court in unprecedented favor of the anti-abortion cause.
“There has been a dramatic increase by states in the last decade to try to test the boundaries of the nation’s abortion law, and it seemed to be in anticipation of changes on the Supreme Court,” said Andy Ayers, director of Albany Law School’s Government Law Center.
Though a common
assumption is that New York is generally safe from federal rollbacks on progressive issues, a policy brief authored by Ayers and published last week by Albany Law School and the Rockefeller Institute of Government highlights exactly why that might not be the case when it comes to abortion rights.
Where New York falls short
It helps to understand that under New York penal law abortion is technically a crime. The 1970 law that legalized the procedure simply made it a “justifiable” crime under two specific circumstances: when it is performed within 24 weeks of conception or when it is performed to save a woman’s life.
The Supreme Court, in its 1973 Roe decision, expanded on this — legalizing abortions in instances when the mother’s health, and not just her life, was at risk. This was important to abortion rights advocates, who noted that women can face health complications during pregnancy, such as preeclampsia or heart issues, that can easily turn life-threatening if action isn’t taken early.
New York’s law contains no such exception, nor does it contain an exception for late-term abortions when a fetus is “nonviable” — or unable to survive outside the womb.
That right was solidified on a federal level in 1992, with a second landmark abortion case, Planned Parenthood v. Casey. In that decision, the Supreme Court reaffirmed Roe and barred states from placing “undue burdens” on women seeking abortions. One of those burdens, it decided, was forcing women to carry nonviable fetuses to term.
Do the discrepancies matter?
While New York’s abortion law was not quite as progressive as Roe or Casey, legal minds argued that it didn’t matter, Ayers said. Supreme Court rulings trump state law. Roe and Casey were the law of the land, and that included New York.
The state’s highest court confirmed as much, too. In 1994, the Court of Appeals stated that “the fundamental right of reproductive choice, inherent in the due process liberty right guaranteed by our state constitution, is at least as extensive as the federal constitutional right,” and went on to cite both Roe and Casey.
“In lawyer terms, this was ‘dicta,’ meaning non-binding,” said Ayers, who is an adviser to the Rockefeller Institute’s Center for Law and Policy Solutions. “But to me, it’s very, very hard to imagine that our Court of Appeals would find it permissible to restrict abortion in a way that Roe would not have allowed.”
Even if Roe or Casey is overturned?
“Even then,” he said. The question sometimes debated by legal scholars, could become the subject of litigation in New York if the state ever attempts to limit abortion rights, he added.
A crime or a medical decision?
Although legal experts agree it’s unconstitutional for New York to deny lateterm abortions to women to protect their health or when the fetus is nonviable, those exceptions remain a gray area to some medical professionals.
The law governing abortion in New York exists within the state’s penal code, meaning violators could face criminal punishment rather than civil liability. That’s worrisome to some doctors, who have urged some women to seek a late-term abortion in another state.
“When courts strike down a statute, they don’t erase it from the law books,” Ayers said. “So there’s a chilling effect on doctors, and we know this from testimonials from women, who’ve said, ‘Look, my doctor refused to do this because he says it’s a crime and a gray area.’ ”
The Reproductive Health Act, a bill that was introduced in the state Legislature in 2017 to bring New York’s abortion law in line with Roe and Casey, would lessen this effect by moving abortion statutes out of state penal law and into health law. It would also expand the types of medical professionals allowed to perform abortions to include nurse practitioners and physician assistants.
As President Donald Trump prepared to announce Brett Kavanaugh as his Supreme Court nominee this summer, Gov. Andrew Cuomo came out hard against Republican state senators who have refused to pass the bill.
Other states have had better luck amending their abortion laws as the ideological makeup of the Supreme Court faces its greatest test since World War II. Massachusetts recently amended its laws to bolster abortion protections, while at least 15 states have passed laws in recent years that would prohibit abortion should the Supreme Court overturn Roe.
While legal experts predict that a full overturning of Roe or Casey is highly unlikely, Ayers and others speculate that an incremental chipping away of abortion protections is likely to occur under a majority pro-life Supreme Court.
“If a significant number of other states start prohibiting abortion or making it hard to access,” he said, “we may see people come into New York to get abortions again, just like they did in the ’70s.”
“When courts strike down a statute, they don’t erase it from the law books. So there’s a chilling effect on doctors, and we know this from testimonials from women, who’ve said, ‘Look, my doctor refused to do this because he says it’s a crime and a gray area.’ ” — Andy Ayers, director of Albany Law School’s Government Law Center