There is a provision in the New York state penal code that was something close to revolutionary when it was added in 1970. Three years before Roe v. Wade prohibited states from banning abortion prior to fetal viability, the provision modified the section on abortion—a crime in the state—to allow for the procedure in certain circumstances: before 24 weeks’ gestation and/or if the pregnant woman’s life is at risk.
Once Roe came down, many interpreted New York’s abortion provision in the penal code to be unconstitutional. The Supreme Court’s decision required states to allow abortion care at any point in a pregnancy if the pregnant woman’s health is at risk, not just her life. And the New York law doesn’t make any exceptions for a woman carrying a fetus that becomes unviable later in her pregnancy, meaning she’d be forced into the cruel position of having to carry an unviable fetus to full term. Supreme Court decisions supersede state law, but to be safe, health-care providers in New York have usually refused to provide abortions not explicitly allowed under the state penal code.
New York’s attorney general, Eric T. Schneiderman, tried to bring the state’s abortion laws closer in line with Supreme Court precedent last September, when he issued an opinion stating that the state must make exceptions in the case of a health-threatening pregnancy or an unviable late-term fetus. Health-care providers applauded the memo, which headed off some wrenching decisions hospital ethics panels had to make when a pregnant woman presented with a pregnancy that was causing her harm but not necessarily bringing her to the brink of death.
But the 1970 provision in the New York penal code remains, and it will take a piece of legislation to change it. A bill currently percolating in the state legislature—it passed the state Assembly earlier this year—would do the trick by removing abortion from the penal code altogether. It would legalize abortions performed after 24 weeks’ gestation in cases of fetal nonviability or threat to a woman’s health. If passed by the state Senate and signed by Gov. Andrew Cuomo, it would also allow advanced practice clinicians like nurse practitioners and physician’s assistants, not just doctors, to offer certain kinds of abortion care, an important step forward for abortion access in areas with few abortion providers.
This week, Rewire published a heart-wrenching essay written by Erika Christensen, a New York woman who gave an anonymous account of her 32-week abortion to Jezebel last year. After she discovered at 30 weeks pregnant that her fetus would not be able to breathe and, thus, survive after delivery, Christensen had to fly to Colorado to get a shot that would begin the process of a third-trimester abortion because she couldn’t get it in New York. In Colorado, Christensen writes, “I lay on the table, looking up at the ceiling. My internal questions played like a tape over and over in my mind: Why am I here? Did New York expect me to carry this baby to term, only to watch him suffer and die? Since then, I’ve tried to answer that second question. The only answer I’ve come up with is: yes.”
Her story illustrates one major reason, besides unconstitutionality, why the 20-week abortion bans sweeping legislatures in states such as Ohio, Tennessee, and Iowa are so cruel. Without even narrow exceptions for cases like Christensen’s, abortion bans ensure that women who may not even learn of a fatal fetal abnormality until week 25 or later must nevertheless carry and birth a fetus that has no chance of life. Even laws that do make exceptions for fetal unviability are often unworkable in practice, because they ask doctors to risk imprisonment if their verdict of unviability is challenged. Without the time and financial means to travel to Colorado for the shot she needed, Christensen would have been forced by New York politicians to spend more than two months carrying a fetus she knew would never become the child she very much wanted. Gestation-based abortion bans aren’t pro-life policy—they’re punishment.
Christensen ends her essay with a plea to New York readers to push the state Senate’s majority leader and health committee head, both Republicans, to bring the new legislation to the floor for a vote before the legislative session ends in late June. “Only 1.3 percent of abortions happen after 22 weeks, but each of us has a unique story,” she writes. “I implore you to question any narrative that requires you to consider women to be monsters for protecting their own health, or for offering a merciful end to an unviable pregnancy.” The New York law would come too late for Christensen and thousands of other women, but for many others in similarly devastating circumstances, it could offer compassionate care just in time.