Why New York Passed Abortion Law

New York's abortion law, also known as the Reproductive Health Act, was passed in 2019 to protect access to reproductive rights and make the right to abortion part of state law. The law permits abortions after 24 weeks if a health care professional determines the health or life of the mother is at risk, or the fetus is not viable. The Act also allows qualified health practitioners, not just licensed medical doctors, to perform abortions. The RHA was passed in response to the Supreme Court's decision in 2022 to overturn Roe v. Wade, which had guaranteed a woman's right to abortion.

Abortion was legalised in New York in 1970, three years before Roe v. Wade

In New York, the abortion law was passed by the Republican-controlled state legislature and signed by Republican Governor Nelson A. Rockefeller. The law decriminalised abortion in most cases and permitted physician-provided elective abortion services within the first 24 weeks of pregnancy, or to preserve the woman's life. It also allowed women, when acting upon the advice of a licensed physician, to perform an "abortional act" on themselves within the first 24 weeks of pregnancy, or to preserve their lives.

New York was the second state, after Hawaii, to enact landmark abortion law legislation. Unlike Hawaii, New York's abortion law did not have a 90-day residency requirement, which meant that in the first two years after the law was passed, two-thirds of the abortions performed in the state were on patients who had travelled from other states, most of which still outlawed abortion.

The New York abortion law was a significant step towards legalising abortion across the United States, which was achieved three years later with the Roe v. Wade decision in 1973.

The Reproductive Health Act, passed in 2019, allows abortions after 24 weeks if the fetus is not viable

Abortion has been legal in New York since 1970, and the state has been at the forefront of the battle for reproductive rights ever since. The Reproductive Health Act (RHA) was passed in 2019 to protect abortion rights and remove several restrictions on voluntary abortions in the state. The RHA repealed a previous New York law that banned abortions after 24 weeks of pregnancy, except when the pregnant woman's life was at risk. The RHA also decriminalized abortion, removing it from the state's criminal code and placing it under public health law. This change addressed concerns that the inclusion of abortion in the penal law, under homicide, could lead to criminal charges for those seeking abortions.

The RHA allows abortions after 24 weeks of pregnancy if the pregnant individual's life or health is at risk, or if the fetus is not viable. The terms "health", "at risk", and "viable" are not defined in the RHA, leaving these determinations to the discretion of medical providers. This lack of definition effectively makes abortion legal throughout pregnancy in New York. The RHA also expanded the pool of qualified medical providers who can perform abortions, allowing advanced practice clinicians (APCs), including physician assistants, nurse practitioners, and licensed midwives, to provide abortion services if they have the appropriate qualifications and it falls within their scope of practice.

The passage of the RHA in New York was a significant step toward codifying abortion rights in the state and ensuring that abortion remains safe, legal, and accessible for all who need it. The RHA was passed in anticipation of the potential overturn of Roe v. Wade, which granted nationwide abortion rights in 1973 but was later overturned in 2022. With the RHA, New York reaffirmed its commitment to protecting reproductive health and ensuring that individuals can make their own decisions about their bodies.

The RHA has been subject to criticism and debate, with some arguing that removing abortion from the criminal code could impact the prosecution of crimes against pregnant women. However, supporters of the RHA maintain that violence resulting in the loss of pregnancy can still be prosecuted as a separate offense. The RHA continues to be a topic of discussion and controversy, highlighting the ongoing battle for reproductive rights and the need to safeguard access to safe and legal abortions.

Abortion rights are under attack in certain states and at a federal level

Abortion has been legal in New York since 1970, three years before Roe v. Wade. However, New York is not immune to these attacks on abortion rights. In November 2024, New Yorkers will vote on Proposition 1, also known as the Equal Rights Amendment. This amendment aims to expand anti-discrimination measures to include ethnicity, national origin, age, disability, and "sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive health care and autonomy." While this proposal does not explicitly mention abortion, it would make it harder for future politicians who oppose abortion to limit these rights in New York.

Opponents of Proposition 1 argue that it is a case of constitutional overreach and that it could take away parents' say in their children's healthcare decisions. The state's Republican Party is against the proposal, believing that New York's existing anti-discrimination laws are sufficient.

Despite these attacks on abortion rights, New York Governor Kathy Hochul is fighting to preserve and strengthen abortion rights in the state. New York will ensure that abortion remains safe, legal, and accessible for all who need it, regardless of federal decisions to limit access.

At the federal level, the Hyde Amendment and a federal abortion ban limit abortion access nationwide. The Hyde Amendment withholds federal Medicaid funding from abortion, with very few exceptions, interfering with access to safe and legal abortion. The federal abortion ban criminalizes abortions in the second trimester, going against over 30 years of precedent that prioritised patients' health.

In addition to these federal-level attacks, states have implemented various restrictions and bans on abortion. These include restricting insurance coverage of abortion, targeted restrictions against abortion providers (TRAP laws), mandatory ultrasounds, waiting periods, and biased counseling. These restrictions create barriers and burdensome hoops for people seeking abortions, taking away their ability to make personal medical decisions.

New York voters will decide on a referendum to amend the state constitution to protect abortion rights

In November 2024, New York voters will decide on a referendum to amend the state constitution to protect abortion rights. The ballot measure, known as Proposition 1 or the Equal Rights Amendment, has sparked intense debates and become a target for Republican opponents. While supporters argue that the amendment is necessary to safeguard abortion rights and expand anti-discrimination protections, opponents frame it as a constitutional overreach that could impact issues like transgender athletes' participation in girls' sports and parents' rights over their children's healthcare choices.

Proposition 1 seeks to update New York's Equal Rights Amendment, first passed in 1938, by adding new protected classes, including "pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy." This would codify legal protections for abortion rights and expand anti-discrimination measures to include ethnicity, national origin, age, disability, sexual orientation, gender identity, and gender expression. Supporters argue that this amendment will make it more difficult for future politicians who oppose abortion to restrict access to these rights.

However, opponents of the proposal argue that it goes beyond abortion rights and contend that the state already has anti-discrimination laws in place. They believe that adding protections for factors like age could take away parents' say in their children's healthcare decisions. The opposition's messaging campaign has also warned that barring discrimination based on "gender expression" would create a constitutional right for transgender athletes to participate in girls' sports, a claim that supporters of the amendment dispute.

The referendum has faced challenges, including fundraising troubles and a legal fight over the ballot measure's description. Supporters of the amendment wanted the words "abortion" and "LGBT" included in the description, arguing that it would make the amendment's purpose clearer to voters. However, a judge ruled against this, stating that the amendment's impact on abortion is complex and subject to future court interpretations.

The outcome of the referendum will have significant implications for abortion rights and anti-discrimination protections in New York, and it remains to be seen whether voters will choose to approve the proposed amendment.

New York's Proposition 1, or the Equal Rights Amendment, aims to expand anti-discrimination measures

The amendment would also protect abortion rights and access to reproductive healthcare, including birth control and IVF, by preventing future state laws from banning abortion or punishing pregnancy outcomes like miscarriages. While the term "abortion" is not specifically mentioned in Prop 1, this protection is covered by the amendment's language.

In addition, Prop 1 would protect LGBTQ+ New Yorkers by preventing future state laws from rolling back current LGBTQ+ rights to equal treatment. It would also protect older, disabled, pregnant, and LGBTQ+ individuals from government discrimination in hiring, pay, and promotion, and ensure that older and disabled individuals have access to voting and public spaces and facilities.

The proposal has sparked debates, with supporters arguing that expanding anti-discrimination protections will make it harder for future politicians to limit rights like gay marriage or abortion in New York. Opponents, including the state Republican Party, argue that the state already has anti-discrimination laws and that the amendment goes too far by adding abortion rights to the list of protected groups.

On November 5, 2024, New Yorkers will vote "yes" or "no" on Proposition 1, which will amend Article 1, Section 11 of the New York Constitution. A “YES” vote adds these protections to the State Constitution, while a “NO” vote leaves them out.

Frequently asked questions