By Galen Sherwin — As we celebrate the 35th anniversary of Roe v. Wade, the landmark decision that legalized abortion, it is time for us to take a hard look at the state of reproductive freedom, both across the country and closer to home.
New York is one of the few remaining states where abortion is relatively accessible; our legislature is not trying to ban it, and the dangerous government restrictions that exist in other states are absent. Many New Yorkers think that no matter what happens nationally, our own laws will continue to protect women's right to make these difficult and complex decisions without interference from the government.
What most New Yorkers do not know is that if Roe is overturned everyone is at risk—not only in states such as South Dakota (which has proposed yet another ban on nearly all abortions), but in our own backyard.
Although New York was one of the first states to legalize abortion—it did so three years before Roe—our laws have failed to keep pace with the times.
We rely on Roe to guarantee women the right to obtain an abortion because New York law does not explicitly contain any such guarantee. In fact, New York law defines abortion as a crime, but creates an exception for abortions that are performed within the first two trimesters of pregnancy, or when a woman's life is at risk.
Our state statutes do not even allow exceptions for when a later abortion is necessary to end a non-viable pregnancy, or to preserve a woman's health. These protections derive from Roe.
The problems in our state's law leave us vulnerable, both now and in the future.
First, treating abortion as a crime stigmatizes abortion providers and chills the provision of services. We should not be singling out properly trained healthcare providers for risk of prosecution based on the type of medical procedure they perform.
Second, the lack of an adequate and explicit health exception for later abortions creates confusion, and has led to several cases where hospitals have refused to perform abortions to end high-risk or non-viable pregnancies for fear of prosecution. In one case, a woman whose fetus had just been diagnosed with Trisomy 18, a fatal medical condition, had to fly to Colorado to terminate her pregnancy at 26 weeks, even though the pregnancy was high risk and the fetus was not viable. Unable to face the stress of travel, she stayed in New York and suffered a stillbirth.
The Supreme Court's recent actions make it clear that the foundation of our reproductive rights is on increasingly shaky ground. Last April, the Supreme Court for the first time upheld a federal ban on certain medically approved methods of performing abortion, despite the lack of a health exception. This decision represents a profound setback, not just for women or people who consider themselves "pro choice," but for everyone who believes medical decisions should be made by patients and their doctors, not by politicians. It was also a clear signal that states like New York can no longer afford to rely solely on federal constitutional law to protect our rights and our health.
The federal Freedom of Choice Act, which would reaffirm Roe and help prevent further attacks on reproductive freedom has unfortunately languished in Congress. But there is a state solution. Governor Spitzer has proposed legislation—the Reproductive Health and Privacy Protection Act—that would modernize our laws and ensure our rights are protected. The bill guarantees women's ability to make their own decisions about whether and when to become pregnant and whether and when to have children. It also ensures that when it comes to state regulation of abortion, women's health will always be the paramount concern.
The state Legislature should demonstrate its leadership and commitment to women's health by immediately enacting this legislation. We are grateful for the 35 years of protection provided by Roe; the next 35 years appear less certain. We must act now to ensure women's health is protected—for us, our sisters, our daughters and for future generations.