Subject: Governor’s Program Bill No.
S. Stewart-Cousins / A. Glick

AN ACT to amend the public health law in relation to enacting the reproductive health act

Position: SUPPORT

The NYCLU strongly supports the Reproductive Health Act, which protects the autonomy, privacy, and dignity of the women of New York State. This legislation guarantees a woman’s right to control her reproductive health, ensures that a woman will be able to obtain an abortion if continuing the pregnancy would jeopardize her health, treats the regulation of abortion as an issue of public health and medical practice, rather than as a potential crime, and guarantees the right to use or refuse contraception. Because it codifies legal and constitutional requirements that currently exist, the bill would make little immediate difference in the day-to-day provision of medical care or abortion services in the state of New York. However, the legislation is critical to bring our laws up to date, and to protect these rights against erosion should challenges to Roe v. Wade brought in other states reach the Supreme Court

I. The Need for Reproductive Health Act
New York liberalized its abortion law in 1970—three years before the Supreme Court legalized abortion nationwide in Roe v Wade[1]. It was one of the first states in the country to do so. The law was groundbreaking at the time, but in light of cases decided in the intervening years, New York law governing reproductive choice is archaic and inadequate. For example, New York law does not contain an affirmative right to obtain an abortion, nor has the New York Constitution been definitively construed as including such a right.[2] Instead, the federal Constitution, as interpreted in Roe and the cases that have followed it, define the scope of women’s reproductive rights in New York State.

Reform of our current law is necessary for three principal reasons: (a) abortion should be regulated by state public health law, not by our criminal law; (b) existing law does not adequately protect women’s health or permit abortion in cases where a fetus is not viable; and (c) the federal courts cannot be counted on to uphold the constitutional protections that have historically safeguarded a woman’s right to choose an abortion.

A. Regulating abortion is a public health matter, not a criminal one.

Most New Yorkers would find it shocking to learn that family planning and abortion are still treated as crimes in our statute books. New York laws governing abortion are based on the pre-Roe presumption that abortion as a general matter is illegal. The regulation of abortion, which is still a provision of the Penal Code, bans all abortions, but carves out exceptions for “justified” abortions (defined as occurring before 24 weeks of gestation or when a woman’s life is in danger)[3]. New York is the only state in the country that still regulates abortion in this manner. Medical providers should not fear prosecution based solely on the type of health care services they provide.[4] The Reproductive Health Act would move the regulation of abortion from the criminal law to the public health law, where it belongs.

B. Current law fails to protect women’s health or permit abortion in cases where a fetus is not viable.

Almost ninety percent of abortions occur in the first trimester of pregnancy, and only 1.1 percent occur after 21 weeks of pregnancy.[5] Such late procedures are very rare, and usually occur under extreme circumstances, either where a woman’s health is at risk or the fetus has a serious genetic condition that means it would not survive to term or after birth. New York law currently fails to adequately protect women’s reproductive choices in such rare and tragic situations.

Current New York law criminalizes abortion after 24 weeks, but includes an exception when a woman’s life is at risk. There is no exception, however, to the ban on abortion after 24 weeks when a woman’s health is at risk. A long line of Supreme Court cases holds that a state may not ban abortions, even after fetal viability, without including an exception to permit termination of the pregnancy when it is necessary to protect either the woman’s life or her health.[6] Because our Federal Constitution trumps New York statutes, a health exception must be “read in” to our laws. However, in practice, the lack of an explicit statutory exception for health has made it extremely difficult, if not impossible, for women to obtain abortions when conditions develop later in their pregnancies that place their health at risk. Although such conditions are rare, when they do arise, they can profoundly impact a woman’s well being, her family, and her future. New York law must be reformed to afford women protection under such circumstances.

Our current law can also result in devastating consequences for women who learn late in pregnancy that the fetus has a fatal genetic anomaly. Consider the case of Laurel Simons (not her real name): Simons, a resident of Western New York, was 24 weeks pregnant with her first child when she learned that the fetus had a serious genetic anomaly[7], Trisomy 18—a condition that results in the fetus having a less than five percent chance of reaching full term, and almost no chance of survival past two months. Faced with such terrible odds, Laurel made the difficult decision to terminate the pregnancy. But it was too late. Although the federal constitution still guarantees a woman's right to terminate a pregnancy under such circumstances, local doctors feared prosecution should they perform the procedure after 24 weeks of pregnancy. Laurel considered flying to Colorado or Kansas, where she could find a willing doctor, but ultimately could not face the stress of travel. She continued to carry the pregnancy, even after the fetus had expired, and suffered a painful stillbirth several weeks later. No woman should have to go through what Laurel went through. New York law must be revised to protect women’s health and ensure that women will be able to terminate pregnancies under such tragic circumstances if they so choose.

C. Federal constitutional protections are no longer sufficient to safeguard reproductive freedom.

Because New York law does not contain an affirmative right to abortion, federal constitutional law provides the basis for determining whether any given regulation of the practice of abortion is lawful. The Supreme Court’s recent ruling in Gonzales v. Carhart[8], upholding a federal ban on one type of third-trimester abortion, is a strong indication that we can no longer rely on federal law to protect these rights in New York. Although the Court did not directly overrule the core principle that women must be able to obtain abortions, even after fetal viability, in order to protect their health[9], the ruling did significantly weaken this constitutional principle. What’s more, the Court clearly signaled its willingness reconsider the principle in future cases.

States around the country have enacted more than 450 bills that would ban or restrict abortion, some of which are a direct challenge to Roe. These challenges make their way to a Supreme Court that is still closely divided on these issues, and will remain so for the foreseeable future. For this reason alone, the legislature must act now to make clear that women will continue to have a fundamental right to decide whether to continue or terminate a pregnancy, and to ensure that women’s health is the primary concern in the regulation of abortion.

II. The Reproductive Health Act’s Modernization of Abortion Laws
The Reproductive Health Act would enact the following critically important reforms in New York’s laws governing women’s reproductive health:

• It adds language clearly delineating the right to privacy in reproductive decision-making, safeguarding not only the right to end a pregnancy but also the right to bear a child and the right to use or refuse birth control.
• It treats abortion and contraception as public health issues, rather than as criminal matters, by removing their regulation from the Penal Code and placing them where they belong—in the Public Health Law. Existing criminal sanctions for assaults on pregnant women are available to ensure that such crimes are adequately punished.[10]
• Consistent with current law, it allows abortion for any reason until the point of fetal viability, which is defined as occurring at 24 weeks of pregnancy. After that point, abortion is permitted: (1) in cases where the fetus is not actually viable, such as in cases of fatal fetal anomalies; or (2) where continuation of the pregnancy would jeopardize the woman’s life or her health. These determinations are left to the health care practitioner’s good faith medical judgment, based on the application of generally accepted medical standards to the facts of the particular case.
• It contains important protections for women’s health and safety, mandating that only qualified, licensed health care practitioners, operating within their scope of practice[11], may provide abortion services, and that later abortions must be performed in state-licensed health care facilities. Existing legal protections, such as penalties for professional medical misconduct or the unlicensed practice of medicine[12], and tort liability for negligence, remain undisturbed in law. Thus abortion is regulated in the same manner as the provision of any other type of medical care.
• It explicitly preserves existing “conscience” protections for health care professionals who object to participating in abortion care on religious or moral grounds.
In short, this important and necessary legislation would strengthen the foundation for reproductive freedom across New York State, preserve women’s rights from further erosion at the federal level, and reaffirm this State’s commitment to women’s autonomy, privacy, and dignity. Every member of the legislature, Democrat and Republican alike, owes it to the women of New York to enact this important and timely legislation.

[1] 410 U.S. 113 (1973).

[2] Although the Court of Appeals has acknowledged that the protections for reproductive privacy in our State Constitution may be as least as extensive as the protection afforded by the Federal Constitution, see Hope v. Perales, 83 N.Y.2d 563 (1994), the court has never directly held that the protections in our State Constitution specifically cover a right to abortion.

[3] See N.Y. Penal Law §§ 125.05, 125.40 et seq.

[4] For example, a criminal ban on the sale of contraceptives to minors that was held unconstitutional by the Supreme Court in Carey v. Population Services International, 431 U.S. 678 (1977), is still on the books. See N.Y. Educ. Law § 6811.

[5] See Guttmacher Institute, In Brief: Induced Abortion in the United States, http://www.guttmacher.org/pubs/fb_induced_abortion.pdf (July 2008).

[6] Roe, 410 U.S. 113; Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992); Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006).

[7] Fatal fetal anomalies are rare conditions, such as severe Hydrocephaly, Anencephaly, Holoprosencephaly, Trisomy 13, and Trisomy 18, that essentially eliminate the chances of fetal survival. See, e.g., F. Gary Cunningham et al., Williams Obstetrics 939-71 (21st ed. 2001) (discussing fetal abnormalities); World Health Organization, Basic Newborn Resuscitation, http://who.int/reproductive-health/publications/newborn_resuscitation/ba... (last visited June 1, 2009) (listing anomalies considered incompatible with life).

[8] 550 U.S. 124 (2007).

[9] Although the Supreme Court’s ruling in Gonzales for the first time upheld a federal ban on a particular abortion procedure that did not contain an exception for women’s health, it did not determine whether an outright ban on all abortions without a health exception would survive constitutional scrutiny. Because the Court did not directly overrule its longstanding precedent that a total ban on all abortions without a health exception would be unconstitutional, that precedent still stands.

[10] See People v. Vercelletto, 514 N.Y.S.2d 177, 180 (County Ct., Ulster Cty. 1987) (loss of seven month fetus and rupture of woman’s placenta as result of defendant’s driving while intoxicated constituted allegation of serious physical injury sufficient to sustain vehicular assault charge); see also People v. Thompson, 637 N.Y.S.2d 855, 856 (App. Div. 4th Dept. 1996) (evidence of miscarriage in attempted murder charge was admissible toward establishing serious physical injury).

[11] A health care professional must operate within his or her “scope of practice,” which means that he or she must have the proper training to perform the procedure and it must be appropriate for the profession. Operating outside of one’s scope of practice is professional misconduct under New York State law. See N.Y. Educ. Law §§ 6509, 6530.

[12] See N.Y. Educ. Law § 6512(1) (making the unauthorized practice of medicine and other licensed professions a class E felony); N.Y. Educ. Law § 6530 (defining professional misconduct for physicians and physician assistants to include practicing the profession fraudulently or beyond its authorized scope, practicing with a suspended or inactive license, and practicing or offering to practice beyond the scope permitted by law); N.Y. Educ. Law § 6509 (defining professional misconduct for other medical professionals to include practicing the profession fraudulently or beyond its authorized scope and practicing with a suspended license); see also N.Y. Educ. Law § 6511 (enumerating penalties for individuals found guilty of professional misconduct under N.Y. Educ. Law § 6509); N.Y. Pub. Health § 230-a (enumerating penalties for individuals found guilty of professional misconduct under N.Y. Educ. Law § 6530).