The Abortion Law: Nys Constitution's Controversial Clause

Abortion has been legal in New York since 1970, three years before the Roe v. Wade decision permitted abortion throughout the United States. In 2023, the New York legislature passed an amendment to the state constitution that would enshrine abortion rights and other protections in the wake of the U.S. Supreme Court's decision to overturn Roe v. Wade. The amendment will be put to a referendum in November 2024, where New Yorkers will vote on whether to add the Equal Rights Amendment (ERA) to the state constitution.

Abortion rights in New York State law since 1970

Abortion has been legal in New York since 1970—three years before the Roe v. Wade decision, which permitted abortion throughout the United States. In 1970, New York became the second state to enact landmark abortion legislation, allowing abortions within the first 24 weeks of pregnancy.

In 2019, New York's Reproductive Health Act further strengthened abortion rights, allowing abortions past the 24th week of pregnancy if the pregnant individual's life or health is at risk, or if the fetus is not viable. The Reproductive Health Act also allows qualified health practitioners, not just licensed medical doctors, to perform abortions.

In 2023, Governor Kathy Hochul announced new actions to solidify New York's status as a safe harbor for those seeking abortion care. These actions included increasing reimbursement rates for reproductive health providers, implementing over-the-counter contraception access, safeguarding abortion access through data privacy protections, and ensuring abortion access at public colleges and universities.

In 2024, the New York legislature passed an amendment to the state constitution to enshrine abortion rights and other protections in response to the U.S. Supreme Court's decision to overturn Roe v. Wade. This amendment will go to voters in November 2024.

New York State law protects the right to abortion for all pregnant people, including minors, transgender men, and non-binary individuals. Abortion services in New York are confidential, and health care providers are generally prohibited from sharing medical records or information about reproductive health care services without the individual's permission. Additionally, New York requires insurance coverage of abortion and prohibits discrimination based on reproductive health care decisions.

The Roe v. Wade decision legalized abortion in 1973

The Roe v. Wade decision of 1973 was a landmark ruling by the U.S. Supreme Court, which held that the Constitution of the United States generally protected a person's right to have an abortion. The case was brought by Norma McCorvey (under the legal pseudonym "Jane Roe"), who, in 1969, became pregnant with her third child and wanted an abortion but lived in Texas, where abortion was illegal except to save the mother's life. Her lawyers filed a lawsuit on her behalf in a U.S. federal court against the local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional.

The Supreme Court's decision in Roe v. Wade ruled that a set of Texas statutes criminalizing abortion in most instances violated a constitutional right to privacy, implicit in the liberty guarantee of the due process clause of the Fourteenth Amendment. The Court formulated a timetable based on the notions of trimester and fetal viability, ruling that:

• During the first trimester of pregnancy, the state could not intervene in a person's decision to have an abortion under normal circumstances.
• During the second trimester, the state could regulate abortion procedures to protect the health of pregnant persons but could not prohibit abortions altogether.
• From the end of the second trimester, which the Court identified as the starting point of viability, the state could regulate or prohibit abortions to protect the pregnant person's health or preserve fetal viability.
• In no case could the state criminalize abortions necessary to protect the life or health of the pregnant person.

The Roe v. Wade decision legalized abortion throughout the country, and abortion rights were further strengthened in New York State in 2019 with the Reproductive Health Act. This meant that federal decisions to limit access to abortion would not impact abortion rights in New York State. Governor Kathy Hochul has taken action to ensure abortion remains safe, legal, and accessible for all who need it, and non-residents can also receive abortion care in New York State.

New York's Reproductive Health Act strengthens abortion rights

New York has a history of being proactive in protecting abortion rights. Abortion has been legal in New York since 1970, three years before the Roe v. Wade decision permitted abortion across the United States.

In 2019, New York's Reproductive Health Act (RHA) further strengthened abortion rights in the state. The RHA was enacted on 22 January 2019, the 46th anniversary of the Roe v. Wade ruling. The Act protects abortion rights, decriminalises abortion, and eliminates several restrictions on voluntary abortions.

The RHA repealed §4164 of the state Public Health Law, which banned abortions after 24 weeks of pregnancy, except when necessary to save the pregnant woman's life. Abortion was also included in the penal law under homicide and could be charged as a criminal offence prior to the RHA. The RHA permits abortions on demand up to 24 weeks of gestation and beyond 24 weeks if the woman's life or health is at risk, or if the foetus is not viable.

The Act also allows advanced practice clinicians (APCs), including physician assistants, nurse practitioners, and licensed midwives, to provide abortion services if they are qualified and if it falls within their scope of practice. This has increased the number of medical practitioners who can provide safe abortions, making abortion more accessible.

The RHA has been criticised for removing abortion from the criminal code, with some arguing that it could have consequences for crimes against pregnant women. However, supporters of the Act argue that it was necessary to codify abortion rights in the state and take abortion out of the state criminal code.

In addition to the RHA, New York has taken other actions to protect and expand access to reproductive healthcare. Governor Hochul has increased reimbursement rates for reproductive health providers, proposed legislation for over-the-counter contraception access, and worked to safeguard abortion access through data privacy protections. New York has also joined the Reproductive Freedom Alliance, a coalition of states committed to protecting and expanding reproductive freedom.

The New York Equal Rights Amendment to protect abortion rights

Abortion has been legal in New York since 1970—three years before the Roe v. Wade decision permitted abortion throughout the United States. In 2019, New York's Reproductive Health Act further strengthened abortion rights.

In July 2022, the New York State Legislature passed a resolution in support of the state Equal Rights Amendment (ERA), the first step toward amending the New York State Constitution to protect abortion rights. The resolution passed a second time in January 2023, and the amendment will now go to the voters on the ballot in November 2024.

The New York State Equal Rights Amendment is a proposed amendment to New York’s State Constitution that would add to the existing constitutional protections for race and religion, and create explicit protections for people who experience discrimination. It would explicitly prohibit discrimination by the government based on a person’s ethnicity, national origin, age, disability, and sex—including their sexual orientation, gender identity, and gender expression—in addition to pregnancy and pregnancy outcomes.

The ERA would also protect against any government actions that would curtail a person’s reproductive autonomy or their access to reproductive health care. For example, it would prevent the state from implementing a state abortion ban, stopping state funding for abortion via Medicaid, banning private insurance coverage of abortion, or prosecuting or criminalizing miscarriage.

If voters approve it, the ERA will be added to New York’s State Constitution. While New York has broad legal protections for abortion, supporters of the ERA say that enshrining those protections in the state constitution would make it harder to restrict abortion rights if the political situation were to change. According to Sarah Steiner, a New York-based election attorney who supports the proposal, if there were to be a federal abortion ban, this amendment would provide a stronger protection for New Yorkers’ right to the procedure than a mere law would.

Governor Hochul's actions to preserve abortion rights

Abortion has been legal in New York since 1970, three years before the Roe v. Wade decision. In 2019, New York's Reproductive Health Act further strengthened abortion rights. In the face of threats to abortion rights across the country, Governor Kathy Hochul has taken several actions to preserve and strengthen these rights in New York State.

On June 13, 2024, Governor Hochul signed a comprehensive, six-bill package to further preserve, protect, and strengthen abortion rights for patients and providers in New York. The legislation addresses a variety of legal concerns, including the establishment of a cause of action for unlawful interference with protected rights and the inclusion of abortion providers and patients in the Address Confidentiality Program. The new bills also prohibit misconduct charges against healthcare practitioners for providing reproductive services to patients who reside in states where such services are illegal and disallow medical malpractice insurance companies from taking adverse action against an abortion provider who provides legal care.

Governor Hochul has also taken other significant actions to strengthen abortion protections and access as part of the FY 2024 Budget. These include enacting protections for the personal data of women seeking abortion care, increasing Medicaid reimbursement rates for reproductive health care services, and allocating $100.7 million in new funding to support abortion providers and reproductive health care. The Budget also includes a measure that requires private insurers to cover recognized medication abortion methods, regardless of FDA approval.

Governor Hochul has also implemented a multi-platform public education campaign to ensure New Yorkers—and all Americans—know that in New York State, abortion remains safe, legal, and accessible. The campaign includes multi-platform advertising efforts and a new website that serves as a central source of information about abortion rights, providers, supports, and payment options in New York.

In addition, Governor Hochul has urged the federal government to take action to guarantee the right to abortion in federal law. She has appealed to Congressional leadership to pass the Women's Health Protection Act (WHPA), eliminate the discriminatory Hyde Amendment, and protect access to telehealth abortion services across the country.

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