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On Roe v. Wade anniversary, New York finally removes abortion from state’s criminal code

"This is a critical step forward. But we know that we'll be looking at what else needs to be done in the future."

Abortion rights supporters  protest outside the US Supreme Court during the 44th annual March for Life on January 27, 2017 in Washington, DC. (Photo credit: ZACH GIBSON/AFP/Getty Images)
Abortion rights supporters protest outside the US Supreme Court during the 44th annual March for Life on January 27, 2017 in Washington, DC. (Photo credit: ZACH GIBSON/AFP/Getty Images)

For more than a decade, reproductive rights and justice activists have been trying to remove abortion from New York’s criminal code. What’s more, they’ve tried to get lawmakers to treat abortion like other medical care. On Tuesday — the 46th anniversary of the landmark abortion rights case, Roe v. Wade — they succeeded in getting the New York Legislature to pass the Reproductive Health Act (RHA).

The bill swiftly passed the Assembly and state Senate in one afternoon, and Gov. Andrew Cuomo (D) is expected to sign it into law Tuesday evening. The passage has been in the making for a long time, as historically it’s been blocked by what used to be the Republican-controlled state Senate and its centrist Democratic allies. The 2018 midterms changed that.

Lawmakers teed RHA’s passage with the anniversary of the Supreme Court decision that established the right to abortion. The legislation is intended to codify Roe, which is at risk under the new conservative-leaning Supreme Court.

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“The New York Constitution and United States Constitution protect a woman’s fundamental right to access safe, legal abortion, courts have repeatedly reaffirmed this right and further emphasized that states may not place undue burdens on women seeking to access such right,” the bill says under legislative intent. (The language noticeably does not account for gender minorities who want and need abortions.)

In addition to removing abortion from the criminal code and creating a new section of the Public Health Law, RHA expands abortion access by permitting qualified health professionals like nurse practitioners, licensed midwives, and physician assistants to perform abortions. There’s a concerted effort to repeal physician-only state laws, as abortion is usually the only medical procedure states single out as being beyond a nurse practitioner’s scope of practice.

The bill also protects more New Yorkers who need abortions after 24 weeks of pregnancy, as the pre-Roe law currently criminalizes providers for performing later abortions even if the pregnant person’s health is at risk. RHA adds fetal viability and health exceptions to the existing life endangerment exception.

But for some, the measure could have gone further. Indeed, advocates who’ve lobbied for RHA wonder if there’s political appetite to go beyond Roe and affirm the right to abortion — no restrictions.

“If it passes exactly as is, it would be a huge step in the right direction,” abortion advocate Erika Christensen, told the New Yorker. Christensen started to lobby for RHA after she had to leave New York for Colorado to have an abortion at 32 weeks because her baby wouldn’t survive outside the womb.

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“But, in a room full of people who trust women, I don’t know why we would only trust them in specific circumstances,” she said, referring to late-term abortion exceptions for life endangerment, fetal viability, and health of the patient. “And I’m afraid that, if the R.H.A. passes, no one will be ready to talk about abortion in New York again until we’re dead. But we’re certainly going to try,” she added.

Seven states (Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon, and Vermont) and the District of Columbia do not limit abortion at any point of pregnancy. When there’s no state law regulating abortion, “it’s up to the doctor treating the woman to determine if the fetus is viable or not,” said Laurie Sobel, the Associate Director for Women’s Health Policy at the Kaiser Family Foundation.

It’s true most abortions take place early in pregnancy, and just over 1 percent of abortions are performed at 21 weeks or later. But for the people who do have later abortions, a comprehensive study says they fit at least one of five profiles: “They were raising children alone, were depressed or using illicit substances, were in conflict with a male partner or experiencing domestic violence, had trouble deciding and then had access problems, or were young and nulliparous.”

RHA isn’t going to be the end — at least not for activists.

“This is a critical step forward. But we know that we’ll be looking at what else needs to be done in the future,” said Andrea Miller, president of the National Institute for Reproductive Health, a group who actively lobbied to get RHA passed.


UPDATE: Gov. Andrew Cuomo (D) signed the Reproductive Health Act into law Tuesday evening.