For more than a decade, New York activists have been trying to solidify abortion rights no matter what happens at the federal level — and this month, they just might do it.
The New York legislature is likely to pass the Reproductive Health Act (RHA) in January after Democrats took control of the state Senate in November. State Sen. Liz Krueger (D) is confident that Gov. Andrew Cuomo (D) will sign the measure into law early this year. Indeed, she plans to introduce the bill on Wednesday, the day the legislature reconvenes, and received leadership’s assurance that both houses will vote on it on January 22, the anniversary of the 1973 Supreme Court decision establishing the right to pre-viability abortion.
“Was Roe v. Wade one of the issues on people’s minds when they decided to vote Democrat? I believe it was,” Krueger told ThinkProgress by phone.
This year is looking like a watershed moment for proactive measures to defend abortion access — be it in New York or elsewhere. Lawmakers in Missouri, New Mexico, Rhode Island, Vermont, and Virginia intend to introduce bills to affirm the right to abortion. Last year already marked the first time in a number of years when progressive policies outpaced restrictions.
Despite its reputation for progressivism, New York doesn’t have a policy in place to secure abortion rights if Roe is overturned, unlike a handful of other states. Historically, local activists failed to sway the then Republican-controlled Senate and its centrist Democratic allies.
RHA isn’t just about protecting New Yorkers from a hypothetical scenario. New York currently bans abortions after 24 weeks of pregnancy unless the pregnant person’s life is at sake. It also criminalizes physicians who break this law. While the law was among the most progressive abortion policies when enacted in 1970, it is now used against women who’ve tried to obtain later abortions because, for example, their health is at risk.
Krueger recounted one woman who was about 30 weeks pregnant and who reached out to every Manhattan hospital, seeking a physician to terminate her pregnancy due to complications.
“Not one of them would do the procedure under the belief that they couldn’t, with a straight face, say ‘we know you will die without this’ — and this is Manhattan,” said Krueger. “But because hospitals report to lawyers and lawyers get worried about liability, all the lawyers at all the New York City hospitals say, ‘we’ve been reading this law for 30 years… we don’t think we are safe under this law.'”
When the woman finally found a physician in Maryland to perform the abortion, she died on the operating table.
Not only would RHA eliminate this decades-old law, it would also expand the right to pre-viability abortion by allowing qualified health care professionals like nurse practitioners and physician assistants provide services.
Activists are directing more attention on state houses because they cannot solely depend on federal courts to block such regressive laws. Planned Parenthood’s political arm, for example, invested $20 million in state elections during the midterms, knowing it needs to help elect lawmakers who will work to pass bills in favor, not against, abortion rights. Given the appointment of Justice Brett Kavanaugh to the U.S. Supreme Court last year, the Guttmacher Institute also advised affirming abortion rights within the state constitution or by way of statute, per a report published Wednesday.
There’s a lot of pressure on state lawmakers to safeguard these rights, given the Supreme Court’s recent extreme shift to the right. The conservative Supreme Court is already being asked to hear two cases that trigger a Roe challenge because some in the so-called pro-life movement think there’s enough justices who will vote to overturn abortion precedents. Justices are expected to decide any day now whether to hear challenges against anti-abortion laws in Indiana and Alabama that were struck down by lower courts.
Organizers’ efforts are paying off. While the New Mexico constitution’s equal rights amendment has been construed as protective of abortion rights, the state has an unenforceable ban that only permits abortions for certain exceptions and if performed in an accredited hospital with a hospital board’s written certification. For this reason, New Mexico state Rep. Joanne Ferrary (D) told ThinkProgress she’ll introduce legislation this month to repeal the outdated language so state officials can’t revive the ban by setting the court ruling that originally blocked it aside. The legislation went nowhere last year during Republican Gov. Susan Martinez’s tenure. But the new governor, Michelle Lujan Grisham (D), supports the measure, giving Ferrary hope that the reproductive health proposal will actually become law in 2019.
Vermont state Sen. Philip Baruth (D) also intends to introduce a bill this week to protect Roe. The same measure failed to move out of committee during the last session.
“Maybe they thought it addressed a need that wasn’t imminent, or maybe they thought it was too controversial. But the last Court confirmation definitely got everyone’s attention,” Baruth told ThinkProgress, by email. Meanwhile, advocates are also trying to amend the state constitution to codify Roe, giving them various opportunities to shore up access.
Many are galvanized, but nothing’s guaranteed. Lawmakers in Rhode Island already pre-filed the state’s own Reproductive Health Care Act, a bill to codify Roe; however, its chances of passing are bleak given that the legislature is still run by anti-abortion Democrats despite efforts to vote them out. Missouri lawmakers also intend to introduce legislation to enshrine Roe, but it’s unlikely to go anywhere. Democratic State Rep. Judy Morgan’s office told ThinkProgress she intends to file the measure Wednesday, the first day the Missouri legislature is back in session.
The chief of staff to Virginia state Sen. Jennifer McClellan (D) told ThinkProgress the lawmaker will introduce the Whole Woman’s Health Act this session, a bill that codifies Roe and goes further than existing law by repealing impediments, like mandatory ultrasounds, to access. But she admitted that “it’s probably not likely to pass.” McClellan is more confident that other reproductive health measures, like protecting free birth control, will pass in the state Senate.