Nearly half a century ago, New York State was a national leader in the fight over abortion rights. It recently took the lead again, as the Legislature passed and Governor Cuomo signed a landmark bill that will guard against overturning of abortion rights by the U.S. Supreme Court. It not only helps guarantee the rights of women living in New York; it’s a much needed affirmation of reproductive rights at a time when they’re under siege across the U.S.
In 1970, three years before the Supreme Court’s Roe v. Wade ruling, New York State passed a measure legalizing abortion in the first two trimesters, but outlawing abortion in the third, except to save the life of the mother. That law, which remains on the books, was superseded by the Roe decision. It gave constitutional protection to abortion rights and permitted abortion in the third trimester to save the mother’s life or protect her health.
The new Reproductive Health Act (RHA) goes further, decriminalizing abortion in New York and treating it as a matter of public health. It also brings New York in line with Roe by allowing abortions after 24 weeks to protect the health of the mother, which was never part of the 1970 New York law. In addition to physicians, it permits licensed nurse practitioners, physician assistants and licensed midwives to provide abortion services.
The RHA puts New York back in the vanguard of states seeking to protect reproductive rights, even as other states and the federal government attack them, and many fear the U.S Supreme Court will overturn Roe.
Whether that happens or not, the new law is still an important advance. New York’s existing criminal penalties for third term abortions sometimes deterred physicians from performing them. The new law would make third-term abortions a matter for women to decide in consultation with their physician and other medical providers. That’s how they should be decided.
The RHA is an achievement. But it also highlights troubling and growing disparities between states. The U.S. is in danger of becoming the divided states of reproductive health and rights. While New York acts to guarantee reproductive rights, other states are working to curtail them. A growing number are restricting abortion rights and forcing family planning clinics to close.
According to Population Institute’s 50-state report card on reproductive health and rights, New York is one of only 10 states with an “A” grade for 2018 (while New York gets high marks for affordability and access, it still has one of the highest rates of unintended pregnancy in the country); 22 states got a “B” or higher. But the country as a whole got a “D minus” — 26 states were graded “D” or lower, and 19 states failed outright. A woman’s ability to exercise her reproductive rights depends increasingly on where she lives. In much of the country, she would confront barriers that may make it impossible for her to access care.
That’s a shocking failure nationally, which stands to get worse as new threats loom. The Trump administration is reshaping the federal judiciary, appointing two new justices on U.S. Supreme Court and 30 judges to the lower appellate courts. Many states have passed laws restricting abortion access, and the appellate courts will likely adjudicate them. So even if Roe itself is not overturned, its protections could still be whittled away by Trump-appointed federal judges.
The Trump administration is also working to shut down access to family planning clinics. The U.S. Department of Health and Human Services proposed a “domestic gag rule” for family planning clinics receiving Title X funding. It would deny funding for contraceptive services if the clinic offers abortion services or so much as informs clients about abortion availability elsewhere. That would cut off funding to many existing providers, including but not limited to Planned Parenthood.
New York’s leadership comes at a critical time. If Roe is overturned, many more women across the US will be denied access to abortion services. More states need to follow New York’s lead in codifying and, if necessary, expanding their reproductive rights.
This op-ed by Population Institute Director of Public Policy Jennie Wetter originally ran on January 31, 2019 in The Hill