Legislative Memo: Reproductive Health Act

Update 1.23.2019:

The state legislature passed the Reproductive Health Act and Gov. Cuomo signed the legislation into law minutes later. The RHA should send a message to lawmakers throughout the country — that the time to protect reproductive freedom is now.  

What you need to know about RHA

The right to decide when, whether, and how to have a child is fundamental to women’s autonomy, dignity, and equality.[1] 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.[2]

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,[3] 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.[4]

The consequences of the current legal framework put women in dangerous, unnecessary, and often untenable positions. For example, in the summer of 2012, Sophia,[5] 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.