Last week, on the anniversary of the Roe v. Wade decision, New York state enacted a new abortion law, called the Reproductive Health Act. A long-term goal of pro-choice advocates, the law was passed by the newly elected Democratic majority in the state Senate and signed by Democratic Governor Andrew Cuomo. The governor even ordered that One World Trade Center in New York City and several other New York state landmarks be lit in pink to celebrate the legislative victory.
While pro-choice advocates were celebrating, the pro-life movement described the R.H.A. as a tragedy, arguing that it legalized abortion up to the point of birth. Defenders of the law described it as a bulwark for women’s rights, designed to guarantee that even if the Supreme Court were to overturn or limit its decision in Roe, abortion access in New York would be maintained. Much of the coverage describing the law and its effects has been polarizing, with advocates on each side describing each other’s accounts of it as biased.
Much of the coverage describing the law and its effects has been polarizing, with advocates on each side describing each other’s accounts of it as biased.
As with any charged and divisive issue, the choice of emphasis and focus in coverage can give the same facts very different interpretations and implications—and it is likely that I will be accused of doing the same in this article. Both I and America magazine are strongly pro-life and not on the sidelines of this argument. However, it is worth trying to get to a more even-handed account of what the law does and does not do in order to have a clearer conversation about it, even if we do not expect to fully convince people on the other side.
Much of the disagreement and confusion around what the law does is the result of which abortion cases advocates choose to focus on. Pro-life advocates argue that the R.H.A. potentially allows the most extreme forms of abortion without any serious restriction—and they are right. Pro-choice advocates respond that the late-term abortions up to the point of birth that pro-lifers highlight are rare and almost always involve cases of extreme medical complexity—and they are right.
Before unpacking in detail what the law does and does not do, let me highlight two points that this disagreement tends to obscure.
What is being missed in the debate over the law?
First: One major aim of the law was to change the terms of the debate. Its practical effects on the number of abortions conducted in the state of New York are likely to be fairly small. The primary reason for its passage was to stake out New York’s position in favor both of preserving and expanding Roe v. Wade’s guarantee of access to abortion. And the way the law accomplishes that is to remove anything in New York law that could have been interpreted to limit abortion or to extend any protection to a child before birth.
New York already has one of the highest rates of abortion in the country.
Second: New York already has one of the highest rates of abortion in the country. In New York City, about one in every three pregnancies ends in abortion. To judge by the numbers, a lack of access to abortion in New York is not a problem. But these extremely high rates tell us that far too many women are facing pregnancies in circumstances where abortion seems to them to be their best or only choice. Many of the potential explanations for this—an extremely high cost of living, a lack of affordable housing, and scarce availability of parental support and child care—deserve attention from policymakers and could be points of agreement between pro-life and pro-choice activists. Unfortunately, those issues do not get anywhere near the attention that the arguments about late-term abortions do, even though they are deeply involved in the (far more numerous) early abortions.
Does the R.H.A. allow abortion up to the point of birth?
The new law allows abortion under any of three conditions: (1) if it is performed earlier than 24 weeks of pregnancy; (2) in an “absence of fetal viability”; or (3) if necessary to “protect the patient’s life or health.”
So abortion is allowed without any restrictions during the first and second trimesters. Later than that, the question is how fetal viability and protection of the life and health of the mother are determined. The R.H.A. says that those judgments are to be made according to “the practitioner's reasonable and good faith professional judgment based on the facts of the patient's case”; it does not impose any objective medical standard.
Pro-life critics point out that the exception for the health of the mother is broad enough to cover basically any possible late-term abortion.
Pro-life critics of the law are pointing out that the exception for health, which is not restricted to a physical definition and can be interpreted to cover psychological and emotional health, subject only to the medical judgment of the abortion provider, is broad enough to cover basically any possible late-term abortion. Insofar as the goal of the law was to guarantee access to abortion and remove restrictions on it, this is part and parcel of that goal. The new law does not contain any meaningful restriction that is likely to ever prevent an abortion.
Pro-choice advocates point out that one reason for that is that the very small fraction of abortions that are conducted at 21 weeks or later (a little more than 1 percent) are almost always in response to some medical issue. Those issues could include acute risks to the life of the mother or conditions that make the child unable to survive to birth—but they also include situations where the child would face a terminal condition, significant suffering or a severe disability after birth, and where abortion is chosen to “spare” the child such pain. However, some providers have acknowledged that they are willing to perform late-term abortions even absent medical necessity, though it is impossible to estimate how many late-term abortions fall under that description.
Does the R.H.A. allow non-physicians to perform abortions?
Yes. The law specifies that a “health care practitioner licensed, certified, or authorized” under New York’s medical licensing laws can perform an abortion and make the professional judgments described above. This means that it is possible that licensed nurse practitioners or physician assistants could perform abortions.
Does the R.H.A. define “human person” to exclude unborn children?
This is complicated. In addition to the provisions explicitly allowing abortion discussed above, the R.H.A. also modifies sections of the New York state penal code to eliminate references to abortion. Prior to these changes, the definition of homicide included causing the death of a person (defined as “a human being who has been born and is alive”) or of an unborn child if the woman has been pregnant for more than 24 weeks.
Prior to these changes, the definition of homicide included causing the death of an unborn child if the woman has been pregnant for more than 24 weeks.
After the removal of abortion from the penal code, the existing definition of person as “a human being who has been born and is alive” remains—but because there is no longer any reference whatsoever to unborn children as possible victims of homicide, the law now effectively excludes them from the definition of “human person.”
Pro-life advocates have also pointed out that this change in the penal code means that domestic violence resulting in the loss of a pregnancy can no longer be prosecuted as severely as it has been. (It can of course still be prosecuted in the same way as any other assault against someone who is not pregnant.)
Does the R.H.A. remove protections for an infant born alive during an abortion?
Yes. The R.H.A. repeals section 4164 of New York’s public health law. That section had provided that abortions after the 12th week of pregnancy had to be performed in a hospital, and that for abortions after 20 weeks a separate physician had to be on hand to provide medical care for any infant born alive during the procedure—which is a possibility, even if an unlikely one.
The now-repealed section also specified that a child born alive during an abortion procedure immediately enjoyed the protection of New York’s laws, and it required medical records to be kept of the efforts to care for the infant. Without section 4164, the public health law is now silent on the status of an infant born alive during an abortion.
What does calling abortion a “fundamental human right” mean?
The R.H.A. sets out the law’s purpose to secure for every pregnant woman a “fundamental right to choose to carry the pregnancy to term, to give birth to a child, or to have an abortion.” The law also says that the state shall not “discriminate, deny or interfere” with these rights in any other regulations.
This has raised concerns about how this “fundamental right” may be asserted in the future against hospitals, doctors and other medical professionals who object to abortion in conscience. An official with the New York State Catholic Conference said that the law “foresees a time in New York when it’s a crime to be pro-life.” New York State Right to Life, a state political party and lobbying group, argues that this language opens the door to “restrict efforts by pro-lifers…and prohibit any limits on abortion.”
The R.H.A. does not contain any explicit provision requiring anyone to perform or provide abortions, but neither does it explicitly provide any exemption for conscientious objection by health care professionals regarding abortion.
In other words, it is not yet clear what precise legal effect the “fundamental right” language may have. The pro-life movement is concerned about how it might be used in the future to compel participation in making abortion available, but it is unclear how and if courts would interpret and apply a “fundamental right” to abortion beyond the existing text of the law.
Where does this leave us?
Prior to the passage of the R.H.A., if Roe v. Wade had been overruled by the Supreme Court, New York would have reverted to its 1970 abortion law, which already permitted abortion for any reason up to the 24th week of pregnancy and later than that in case of danger to the mother’s life. At the time of its passage, three years prior to Roe, the law was the most permissive in the country. If it were still on the books, the 1970 law would still be more permissive than abortion laws in many European countries, most of which impose limits on abortions starting around 12 weeks.
The bigger tragedy is that it the new law deeply entrenches our divisions over abortion by adopting the most absolutist pro-choice position imaginable.
In the sense that the law the R.H.A. replaced already permitted abortion without many limits, the practical changes due to the new law are likely small. By making it possible for non-physician medical providers to perform abortions and removing the few prior limits on late-term abortion, it is likely that the R.H.A. will slightly increase the number of abortions in the state of New York. However, as pointed out previously, New York already has an extremely high abortion rate, so the existing restrictions probably were not preventing many abortions.
But the law is of huge symbolic importance. It announces that pro-choice activists and their political allies have no interest in or intention of settling for abortion that is “safe, legal and rare.” It has systematically eliminated any legal recognition, no matter how meager, that an unborn child could be worthy of protection or concern, following a playbook that argues that any acknowledgment of “fetal personhood” must be essentially anti-woman.
The tragedy of this law is not only that it makes late-term abortions more available in New York. The bigger tragedy is that it more deeply entrenches our divisions over abortion by adopting the most absolutist pro-choice position imaginable and leaves New Yorkers less able to work together to address or even acknowledge the factors that contribute to our state’s catastrophically high abortion rate.
I live in a city where for every two mothers whose pregnancies fill them with joy, one woman has turned instead to abortion. That is not just because New York protects the right to abortion. It is also because we have failed to present a better option, and the R.H.A. has doubled down on that failure.