In New York State until 1970, abortion was considered homicide unless the procedure was to save the life of a pregnant woman. Then three years before the Supreme Court decision in Roe v Wade made abortion legal in the United States, New York State partially decriminalized abortion. But abortion was still classified as murder if it caused "the death of a person or an unborn child with which a female has been pregnant for more than 24 weeks." That law remains on the books until this day.
Now, however, with little fanfare, a bill has been introduced to once again revise New York’s laws, which some have called "antiquated and unconstitutional." This act would bring New York’s laws on abortion up to date and recognize a woman’s fundamental right to make medical decisions relating to reproduction. For the first time, "person, when referring to the victim of homicide [would mean] a human being who has been born and is alive."
BEFORE 1970
Prior to the 1970 revision, women with unwanted pregnancies either had unwanted children or found some way to terminate their pregnancies. Often these illegal operations were expensive and performed blindfolded, in a back alley, or under unsanitary conditions by “quacks,” sometimes working without anesthetics or antibiotics, who could permanently harm or even kill their patients.
These came to be known as coat hanger abortions for the “medical" instrument used in performing them. The coat hanger or other device, used by a pregnant woman or someone assisting her, could perforate the woman’s uterus, sometimes causing severe bleeding. Ironically, such injuries were sometimes the only thing that allowed her to get medical attention.
Women who could afford to check into mental hospitals and have two psychiatrists certify that they might commit suicide if they had to continue a pregnancy could get a legal abortion by claiming the procedure was literally a case of life or death. Others who had money could go to foreign countries for the procedure. And some women did have access to licensed, cooperative physicians.
Even for those women able to get safe abortions, though, the criminal law controlled the process. Abortion was murder except where medical testimony established that the pregnant woman’s life was at risk. There was no right to choose, though the euphemism "right to choose," had not yet come into use, nor had the euphemism, "pro-life," meaning, respectively, for or against a woman’s choice to be or not be a mother at a given time.
In the late 1960s activists in the women’s liberation movement argued that women should have control of their bodies. In response, the state legislature amended the penal law. Under the changes, doctors performing abortions in the first 24 weeks of pregnancy would no longer risk being criminally prosecuted and losing their licenses, and women would no longer risk losing their lives.
Revolutionary though it was at the time, the 1970 law, which partially decriminalized abortion and took it out of the realm of homicide in most cases, did not go beyond that. Today, abortion in New York State remains defined as homicide when performed after 24 weeks unless the woman’s life is at risk. But now more than three and one-half decades later, when observers and activists say changes in the Supreme Court could again threaten women’s choice, New York is putting this health issue on the legislative agenda.
WHAT THE CHANGE WOULD DO
The Reproductive Health and Privacy Protection Act, proposed by Governor Eliot Spitzer, would establish and recognize reproductive rights and privacy. The bill would guarantee the right to abortion; it would also guarantee rights with respect to contraception including, for example, the purchase of birth control or "morning after" pills. It would amend the public health law, the education law, the penal law and criminal procedure law, and certain other statutes, all in relation to abortion. Specifically the bill contains a statement of a woman’s right to terminate a pregnancy before the fetus is medically determined to be viable or at any time necessary to preserve the woman’s life or health. According to lawyers who have assisted the Spitzer’s office in drafting the legislation, perhaps most significantly, it would recognize that the issue of abortion is medical, rather than legal or political.
Currently, New York does not have any provision for abortion after viability to protect a woman’s health. Also, the procedure remains criminal after 24 weeks even if the fetus is not viable -- "even if the fetus is dead," according to Dr. Maureen Paul, chief medical officer of Planned Parenthood of New York City. The law bans all abortion after 24 weeks except when necessary to preserve a woman’s life, although Paul says, "A threat to health is a threat to life."
Under the proposed changes, these statutes would be repealed and the bill would allow a woman to end a pregnancy until viability or at any time necessary to protect her life or health.
ADDRESSING FEDERAL CHANGES
New York’s existing law was never challenged, but until this year federal court decisions had determined that laws restricting abortion after 24 weeks are unenforceable when the procedure is needed to protect a woman’s health. Then earlier this year in their second Gonzales v Carhart ruling on late-term abortions, the Supreme Court decided that the "state’s interest in promoting respect for human life in all stages of pregnancy could outweigh a woman’s interest in protecting her own health." That decision means that New York laws would no longer be adequate to insure that women who needed them would be able to obtain abortions in later stages of pregnancy.
By addressing that issue directly, advocates say, New York would make a major commitment to protecting the rights intended by a majority of the sitting justices’ predecessors three and a half decades ago. If the current state bill is enacted into law, it will reflect the public policy of New York by declaring that every individual has a fundamental right of privacy with respect to personal reproductive decisions and the right to refuse or choose contraception. It would make clear that in New York State every female can determine the right to bear a child and terminate a pregnancy prior to viability, or whenever it is necessary to protect her life or health.
In the wake of recent court rulings, and anticipating decisions in the future, abortion rights advocates are increasingly turning their attention to the state level. In this state, the proposed legislation "will ensure that New York remains a beacon for choice in the face of broad federal attacks on reproductive health and women’s rights," said Donna Lieberman, executive director of the New York Civil Liberties Union, which participated in the drafting of the bill. "The Reproductive Health and Privacy Protection Act would be just that. It would make reproductive rights a matter of health, not law and politics," she said.
Unless the state legislature returns for a special session later this year, the bill is unlikely to win passage in 2007. But supporters say they will press for the legislation. NARAL Pro-Choice New York, for example, has said it will target key state senators who have opposed the bill “until the bill is passed.
For their part, antiabortion advocates are working to defeat the measure. In a “memorandum of opposition,” the New York State Catholic Conference listed objections to specific provisions of the bill, including its guarantee of privacy rights and its removal of New York abortion laws from the criminal code. Calling the bill “uncompromising in its terms and extremely sweeping in scope,” the statement said the measure “goes against the increasingly pro-life sentiment in this country,”
Let the wars begin.
Emily Jane Goodman is a New York State Supreme Court JusticeÂ
