The right to decide when, whether, and how to have a child is fundamental to women’s autonomy, dignity, and equality. This right affects every aspect of a woman’s life – her economic status, her educational aspirations, her career goals, her health, and the well-being of her family.
New York law does not adequately protect this right; the law actually deters health care providers from offering the best reproductive health care possible. The Reproductive Health Act (A.1748 / S.2796) would amend New York law to ensure that every woman has the ability to make the personal family planning decisions that are best for her and her family.
A.1748 passed the Assembly on January 17, 2017. This reform is critical and long overdue, and the NYCLU urges lawmakers to approve S.2796.
The Reproductive Health Act Removes Abortion from the Criminal Code and Ensures Constitutional Protections are Reflected in New York Law
The Reproductive Health Act would fix a troubling gap in New York’s abortion law. New York reformed its abortion law in 1970, three years before the Supreme Court issued its landmark decision in Roe v. Wade.
While New York’s abortion statute allows abortion throughout a pregnancy when necessary to preserve a woman’s life, the statute does not allow abortion care after 24 weeks from the commencement of pregnancy to preserve a woman’s health or in cases of fetal non-viability. Thus, although the U.S. Constitution requires state law to allow for abortion in each of these circumstances, New York law does not comport with Supreme Court jurisprudence and the law is inconsistent with current medical guidelines.
Consequently, the law is not only constitutionally deficient, it is a barrier to effective and affordable care for women in New York.
A woman can experience serious complications throughout pregnancy. Indeed, severe fetal anomalies and maternal health risks are more likely to occur, and be detected, later in pregnancy – past the 24 week time limit in New York law. Although rare, when these circumstances do arise, a fear of criminal prosecution often deters health care providers in New York from offering medically necessary abortion care.
As a consequence, New York law jeopardizes women’s health and safety. When a doctor in New York is reluctant, or unwilling, to provide abortion care in these circumstances, a woman may be forced to travel to another state to get the care she needs – and if she can’t afford to travel, she must forego care altogether.
In this circumstance a woman may feel compelled to delay medical care until her health deteriorates to the point where her life is in danger, or she may feel she has no choice but to carry a non-viable fetus to term, with potentially catastrophic consequences for her own health and safety.
The consequences of the current legal framework put women in dangerous, unnecessary, and often untenable positions. For example, in the summer of 2012, Sophia, a patient in her late 20s, was battling five types of cancer – the result of a rare genetic disorder. The chemotherapy and medications made her menstrual cycle irregular, and because her doctors told her that pregnancy was all but impossible while undergoing treatment, Sophia was stunned to find out she was pregnant.
Sophia learned that the fetus had multiple severe anomalies as a result of her cancer treatment, and was unlikely to survive after birth. However, because Sophia’s pregnancy was beyond New York’s 24 week legal limit, providers would not take the apparent legal risk associated with performing an abortion. Sophia’s only option to get the care she needed was to travel outside of New York. Her illness made traveling risky and required expenses beyond her means.
The cost of the abortion was $12,500, not including travel and lodging expenses. After an emergency fundraising campaign for Sophia, she was ultimately able to travel 2,000 miles across the country to receive the care she needed. No woman should have to jeopardize her health and life and leave New York to get the health care she needs.
The Reproductive Health Act would align New York law with federal constitutional law, ensuring that a woman would have the explicit right under New York law to access the care she needs when her health is at risk or the fetus is not viable. Further, by removing abortion from the criminal code, the legislation ensures that health care professionals can provide women with appropriate health care without fear of criminal consequences.
The Reproductive Health Act Clarifies that Licensed and Qualified Health Care Practitioners May Provide Early and Safe Care to Patients
The Reproductive Health Act ensures that medical practitioners who are licensed, certified, and trained to provide abortion care may lawfully do so, thereby improving access to care. At present, because of amendments from 1970, a “justifiable abortion” is an abortion performed by “duly licensed physicians” within 24 weeks from the commencement of pregnancy.
While this language does not prohibit other health care providers from performing abortions, it has generated confusion among providers, their lawyers, and their insurers as to whether advanced practice clinicians (e.g., nurse practitioners, physician assistants, licensed midwives) may legally provide abortion care.
Advanced practice clinicians play an important role in increasing access to early and safe abortion care, particularly for women in rural and low-income communities. The largest, most influential and well-respected medical and health policy organizations in the United States have issued statements in support of appropriately trained clinicians providing abortion care.
The Reproductive Health Act clarifies that licensed, trained advanced practice clinicians may provide early and safe abortion care consistent with their scope of practice.
To reclaim its status as a national leader and a champion for women, New York must enact the Reproductive Health Act. Across the country, and in our own state, women’s reproductive rights have become a political pawn in the legislative arena. Seven out of ten New York voters – across religious and party lines – support making these changes to our law. Lawmakers must not delay any further; the NYCLU calls on the legislature to pass this critical piece of legislation immediately.
 The use of the terms “women” and “female” in these comments is meant to capture anyone who is in need of abortion care, regardless of their gender identity.
 N.Y. Penal Law §125.05.
 Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v. Casey, 505 U.S. 833 (1992) (The United States Supreme Court has ruled that any outright state ban on post-viability abortions must contain a provision that allows for abortions necessary to preserve the life or health of the woman. Thus, states may not ban abortion care at any point in pregnancy in instances where a fetus is not viable or when a woman’s life or health is endangered.)
 Bodde, Katharine and Sebastian Krueger. Critical Conditions: How New York’s Unconstitutional Abortion Law Jeopardizes Women’s Health. New York Civil Liberties Union, Jan. 2017, available at https://www.nyclu.org/sites/default/files/field_documents/nyclu_critical.... (In 2013 the NYCLU began reaching out to hundreds of health care professionals and heard many stories from providers who felt that New York law tied their hands and left their patients with few, if any, options. The NYCLU report documents stories of women being denied care because of New York’s abortion law.)
 Weitz, Tracy A., et al. “Safety of Aspiration Abortion Performed by Nurse Practitioners, Certified Nurse Midwives and Physician Assistants Under a California Legal Waiver.” American Journal of Public Health, Vol.103 no.3 (2013).
 The following organizations have issued statements in support of appropriately trained clinicians providing abortion care: American College of Obstetricians and Gynecologists, the American Academy of Physician Assistants, the American College of Nurse-Midwives, the American Medical Women’s Association, the American Public Health Association, the Association of Physician Assistants in Obstetrics and Gynecology, the International Confederation of Midwives, the National Association of Nurse Practitioners in Women’s Health and Physicians for Reproductive Health.
 Siena Research Institute. “Voters: Pass 10-Point Women’s Equality Act, Including Abortion Provisions; Strongly Favor Making NY Law Consistent with Roe v. Wade & Current Practice.” Siena College Poll, June 17, 2013, available at https://www.scribd.com/document/170408490/Siena-Research-Institute-Relea....