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Legislative Memo: In Support of the Reproductive Health Act (S438)

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 health of her family.

New York law does not adequately protect this right; the law actually prevents health care providers from offering the best reproductive health care possible. The Reproductive Health Act (S438) 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.

NYCLU believes that this reform is critical and long-overdue, and we urge the legislature to immediately pass the bill.

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. Wade1.

While New York law allows abortion care throughout a pregnancy when necessary to preserve a woman’s life, the law does not allow abortion care after twenty-four weeks from the commencement of pregnancy to preserve a woman’s health or in cases where a fetus is not viable. The U.S. Constitution requires state law to allow for abortion in each of these circumstances.2

Because New York law does not comport with Supreme Court jurisprudence or with current medical practice, the law is not only constitutionally deficient, it is a barrier to effective and affordable care for women in New York State.

A woman can experience serious complications throughout pregnancy. Indeed, severe fetal anomalies and maternal health risks are more likely to occur later in pregnancy – past the twenty-four-week bright line 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 the best reproductive health care possible. In order to comport with constitutional standards, as recognized by the Supreme Court, health care providers must be authorized to provide abortion care when required to protect a woman’s health or life, or when a fetus is not viable.

But because the state’s Penal Law explicitly restricts lawful abortion care to cases where a woman’s life is in danger, health care professionals are deterred from providing abortion care in instances where a fetus is not viable or where a woman’s health is at risk.

This legal conundrum further 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.3 No woman should have to jeopardize her health and life to get the healthcare she needs.

The Reproductive Health Act will ensure that women can get the care they need by removing New York’s abortion law from the criminal code and bringing it in line with current medical standards and federal law.

By aligning New York law with federal Constitutional law, 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 the regulation of abortion from the criminal code and locating it in the public health law, where it belongs, the Reproductive Health Act ensures health care professionals can provide women with quality health care without fear of prosecution.

To reclaim its status as a national, progressive 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 are being used as a political pawn.

In New York, however, protecting women’s reproductive freedom is not controversial. Indeed, seven out of ten New York voters – across religious and party lines – support the Reproductive Health Act. The New York State Legislature must not delay any further; we call on lawmakers to pass this critical piece of legislation immediately.


1. N.Y. Penal Law § 125.05.

2. 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. This means that 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).

3. In order to better document the scope of the problem in New York, in 2013 the NYCLU reached 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. Third trimester pregnancy terminations are rare. However, when they are needed, patients face tragic and potentially dangerous situations. For materials describing these stories please contact the NYCLU.    

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