The XX Factor

New York Women Can Now Get Legal Late-Term Abortions in More Cases

New York Attorney General Eric Schneiderman’s new opinion overrides an unconstitutional state law that made no exception for the health of the pregnant woman.

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New York medical practitioners can now provide abortions after 24 weeks of gestation in more cases, thanks to an opinion released by Attorney General Eric T. Schneiderman on Wednesday. In response to a query from the state comptroller’s office, Schneiderman wrote that the state’s current abortion law runs counter to Supreme Court rulings by criminalizing abortions after 24 weeks of pregnancy except to save the pregnant woman’s life.

Drawing from multiple Supreme Court decisions, the opinion concludes that, to stay within constitutional lines, New York must also make exceptions to the 24-week limit if the pregnant woman’s health is at risk and if the fetus becomes unviable. The state law, passed in 1970, will remain in effect until the state legislature decides to ax it, but the New York Times reports that Schneiderman’s opinion will allow hospitals and other abortion providers to perform late-term abortions without fear of prosecution.

An OB/GYN at the NewYork-Presbyterian Hospital/Weill Cornell Medical Center told the Times that hospitals have previously had to seek wisdom from ethics committees and sometimes wait until a pregnant woman’s health got so bad that her life was definitely at risk, just to give doctors “institutional cover to do what we thought was right all along.” Legislation proposed in 2013 would have modified the state’s abortion law to fit with court precedent, but Republicans in the state legislature blocked it.

Right now, only seven states, plus Washington, D.C., have no restrictions on when a patient can get an abortion: Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon, and Vermont. New York is one of just four with unconstitutional laws that make exceptions only for the life of the pregnant woman; 16 others make exceptions only for life and physical health, which is also unconstitutional since it ignores mental health; and 19 states legally allow for abortions after viability to protect the life and comprehensive health of the pregnant woman. Currently, doctors in New York often refer pregnant women with health risks or unviable fetuses to hospitals in other states for the late-term abortions they need.

In other great and super-constitutional abortion news, the Wisconsin Office of the Attorney General has to pay out $1.6 million to Wisconsin abortion providers to cover the legal fees they racked up battling an unconstitutional TRAP law. The money will go to Planned Parenthood of Wisconsin, Planned Parenthood Federation of America, and Affiliated Medical Services.

The 2013 law required all doctors who perform abortions to get admitting privileges at nearby hospitals—privileges that are hard to get for abortion providers in conservative areas, rarely used because abortion is extraordinarily safe, and completely unnecessary since hospitals will take any patient who comes in, regardless of which doctor sent her there. In June’s Whole Woman’s Health v. Hellerstedt decision, the Supreme Court ruled that Texas’ admitting-privileges law was unconstitutional; Wisconsin’s version was shot down by the 7th Circuit U.S. Court of Appeals and, as of Thursday, by the U.S. District Court that made the $1.6 million ruling.