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Op-Ed: New Yorkers Need to Upgrade Abortion Laws (On the Issues Magazine)

By Galen Sherwin — Laurel Simons, (not her real name) who lives in a small town in Western New York, was pregnant with her first child when she got the call that every pregnant woman dreads: routine testing revealed a serious problem. The fetus had a genetic anomaly, Trisomy 18, which has an extremely low survival rate. Only five percent of fetuses with this condition reach full term, and half of those don’t survive past two months.

Faced with such terrible odds, Laurel made the difficult decision to terminate the pregnancy. But for her, it was too late –New York’s law contains a criminal ban on abortion after 24 weeks of pregnancy, and Laurel was just 24 weeks pregnant. Although the federal constitution still guarantees a woman’s right to terminate a pregnancy under such circumstances, local doctors, quite simply, feared prosecution because of the criminal ban on the New York statute books.

Laurel considered flying to Colorado to terminate the pregnancy but ultimately could not face the stress of travel, and instead remained in New York where she suffered a stillbirth several weeks later.

Laurel’s case demonstrates that even though New York doesn’t have dangerous restrictions on abortion that exist in other states, such as waiting periods or parental involvement requirements for minors, the laws are out-of-date and badly need revision. New York last changed its laws on abortion when the procedure was legalized in 1970 –three years before Roe v. Wade was decided. New York laws have not kept pace with the times, and fail to incorporate fundamental protections that would have prevented situations like Laurel’s.

For example:

1. There is no affirmative guarantee of women’s right to obtain an abortion.

2. New York law allows abortion only through an exception in the criminal law.

3. After the second trimester a woman cannot terminate a pregnancy when her health is at risk, or when the pregnancy is not viable.

4. Treating abortion as a crime stigmatizes abortion providers and deters health care professionals from offering the procedure.

The U.S. Supreme Court’s recent decision in Gonzales v. Carhart heightened the need to reform New York’s laws. In that case, the Supreme Court upheld a federal ban on a medically approved abortion procedure — the method that likely would have been the safest procedure for Laurel. This decision sent a clear signal that New Yorkers can no longer afford to rely solely on federal constitutional law to protect our rights and our health.

Luckily, the Reproductive Health Act is pending in Albany. It is sensible legislation that would strengthen New York’s laws governing family planning and abortion. The Reproductive Health Act explicitly affirms women’s right to make their own decisions about whether and when to become pregnant and have children. It ensures that women’s health will always be paramount in state regulation of abortion. And it guarantees that, no matter what happens to Roe, women’s rights will be protected in New York.

New Yorkers must draw a line in the sand. No woman should have to face Laurel’s dreadful dilemma. The state must act now to ensure that women’s health and rights are protected — for women, their sisters, daughters, and for future generations.

Galen Sherwin is the director of the New York Civil Liberties Union’s Reproductive Rights Project.

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