New York's Abortion Law: Late-Term Access Explained

Abortion laws vary across the United States, with some states imposing restrictive bans. New York, however, has a long history of protecting abortion rights. Abortion was legalised in New York in 1970, three years before the Roe v. Wade Supreme Court decision, which legalised abortion across the country. In 2019, New York passed the Reproductive Health Act, which further protected access to abortion in the state. This legislation allows abortions after 24 weeks if a pregnant individual's life or health is at risk, or if the foetus is not viable.

The Reproductive Health Act (RHA)

The RHA permits abortions when, according to a medical professional's "reasonable and good faith professional judgment based on the facts of the patient's case", "the patient is within twenty-four weeks from the commencement of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient's life or health."

Previously, abortions after 24 weeks were only justified in cases where the mother's life was at risk, which was inconsistent with Roe v. Wade. The RHA removes abortion from New York's penal code altogether, and the homicide statute still defines a "person" as "a human being who has been born and is alive".

Proponents of the bill argued that abortion should be treated as a healthcare matter, not a criminal one. Some pointed to examples of women being forced to travel out of state to terminate pregnancies with fetuses that doctors said would not survive outside the womb. Opponents, however, said that the change removes an important prosecutorial power.

The RHA also repealed a section of the public health law that required abortions after 12 weeks to be performed in a hospital, and for an additional physician to be present for abortions after 20 weeks to care for "any live birth that is the result of the abortion".

RHA's impact on criminal statutes

New York's Reproductive Health Act (RHA) removes abortion from the state's penal code. Previously, New York criminalized abortion unless it was a "justifiable abortional act", meaning it was within 24 weeks of the commencement of pregnancy or necessary to "preserve" the mother's life.

The RHA permits abortions when, according to a medical professional's "reasonable and good faith professional judgment based on the facts of the patient's case", "the patient is within twenty-four weeks from the commencement of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient's life or health."

The RHA's impact on criminal statutes is significant. Firstly, it removes abortion from the penal code, which previously criminalized the procedure unless it met the narrow criteria of a "justifiable abortional act". This change aligns with proponents' arguments that abortion should be treated as a healthcare matter rather than a criminal one.

Secondly, the RHA expands the circumstances under which abortions are permitted. While New York's old law only allowed late-term abortions to save the mother's life, the RHA allows abortions after 24 weeks if a healthcare professional determines that the mother's health is at risk or the fetus is not viable. This change brings New York's law into alignment with the Supreme Court decision in Roe v. Wade, which held that states may not limit abortions before fetal viability, except in cases necessary to preserve the life or health of the mother.

The RHA's removal of abortion from the penal code does not affect the homicide statute, which continues to define a "person" as "a human being who has been born and is alive." Therefore, killing a baby once born is still considered homicide under New York law.

Defining 'health' and 'viability'

The definition of "health" in New York's Reproductive Health Act (RHA) is notably absent, and the term is left open to interpretation. However, the RHA does allow abortions after 24 weeks if a healthcare professional determines that the procedure is "necessary to protect the patient's life or health".

In the companion case Doe v. Bolton, the U.S. Supreme Court held that "medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman's age—relevant to the wellbeing of the patient. All these factors may relate to health."

The RHA's lack of a definition for "health" is in contrast to New York's previous abortion law, which only allowed late-term abortions in cases where the mother's life was at risk.

The term "viability" refers to the fetus's ability to survive outside the uterus after birth, with or without artificial support. The determination of viability is largely dependent on fetal organ maturity and environmental conditions.

In the U.S., viability is generally considered to be between 23 and 24 weeks of gestational age, but there is no sharp limit, and it can vary depending on various factors. The determination of viability is made by healthcare professionals and is based on the specific facts of each case.

The Supreme Court, in Roe v. Wade, defined viability as the "interim point at which the fetus becomes... potentially able to live outside the mother's womb, albeit with artificial aid". This definition was further elaborated on in Casey v. Planned Parenthood, where the Court stated that viability marks the point at which the state's interest in fetal life becomes constitutionally adequate to justify a legislative ban on non-therapeutic abortions.

The determination of viability is crucial in abortion cases as it establishes the point at which states can impose restrictions or bans on abortions.

RHA's removal of abortion from the state's penal code

New York's Reproductive Health Act (RHA) was signed into law by Governor Andrew Cuomo on January 22, 2019—the anniversary of the Roe v. Wade Supreme Court decision, which guaranteed a woman's right to abortion. The RHA removes abortion from the state's penal code, decriminalizing the procedure and eliminating it as a criminal offence.

Previously, New York criminalized abortion unless it was a “justifiable abortional act”, meaning it was within 24 weeks of the commencement of pregnancy or necessary to preserve the mother's life. Abortion was included in the penal code under homicide and could be prosecuted as such. The RHA removes this threat of criminal prosecution for medical professionals who perform abortions.

Proponents of the RHA argued that abortion should be treated as a healthcare matter, not a criminal one. They pointed to examples of women being forced to travel out of state to terminate pregnancies with non-viable fetuses. Some women had to borrow money and fly across the country to access abortion services, adding financial burden and stress to their situation.

The removal of abortion from the penal code was, however, controversial. Opponents argued that it removes an important prosecutorial power, such as being able to fully charge a domestic abuser for ending a woman's pregnancy. There were concerns that removing abortion from the criminal code could mean that if a fetus dies as a result of an assault on a pregnant woman, there would be no prosecution.

Supporters of the RHA countered that there are existing laws to punish domestic abuse and that this issue should be separate from abortion. They also argued that violence resulting in the loss of a pregnancy could still be prosecuted as first-degree assault.

Public opinion on the RHA

New York's Reproductive Health Act (RHA) was signed into law by Governor Andrew Cuomo in 2019. The RHA is a landmark piece of legislation that decriminalizes and safeguards abortion, ensuring greater access to reproductive healthcare in the state. The act has sparked intense debate and a range of public opinions.

On the other hand, opponents of the RHA have expressed concerns and criticisms. Some argue that the law removes important prosecutorial powers, such as the ability to fully charge a domestic abuser for ending a woman's pregnancy. They believe that the RHA goes too far in removing legal protections for the unborn. This perspective is often rooted in moral, ethical, religious, and political reasons that value the rights of the fetus over the autonomy of the pregnant person.

The public discourse surrounding the RHA has been influenced by a range of factors, including personal beliefs, political affiliations, and interpretations of medical data. For instance, some opponents of the RHA have pointed to statistics indicating that abortions after a certain gestational age are relatively rare, questioning the need for such legislation. However, supporters of the RHA emphasize that even if late-term abortions are less common, they are sometimes necessary to protect the health and life of the pregnant person.

Additionally, the public debate has been influenced by the broader political context, including the Trump-Pence administration's attacks on abortion rights and the subsequent efforts of advocates, legislators, and governors to push for proactive policies protecting reproductive rights. The passage of the RHA in New York has had a ripple effect across the country, with several other states following suit and enacting protections for abortion rights and access.

Overall, public opinion on New York's RHA has been diverse and passionate, reflecting the complex and deeply personal nature of the abortion debate. While some celebrate the RHA as a victory for reproductive freedom, others view it as a concerning overreach that undermines the value of fetal life. The ongoing dialogue surrounding the RHA highlights the ongoing need for constructive engagement and understanding between individuals with differing perspectives on this contentious issue.

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