No, the New York Abortion Law Does Not Allow ‘Any’ Late-Term Abortion: Read the Law Here

Jonathan Xie

A lot of memes have been spreading misinformation about New York’s new abortion law. New York did change its abortion law, and pro-life advocates dislike it while pro-choice advocates are praising it. But the memes are misrepresenting just what the new law does. Many memes say the new law allows any late-term abortion, but this is not true. The law is actually worded to only allow late-term abortions in cases where a mother’s life or health is in danger or the baby isn’t viable. (These are all explained in detail in the sections below.) The law also moved abortion from the penal code to the health statutes, which some Republican lawmakers are worried might make it harder for a pregnant woman who is assaulted and loses her pregnancy to address the loss through state criminal law.

The law is still being hotly debated by pro-choice advocates vs. pro-life advocates, but not because it allows any and all late-term abortions.


Read the Law Below

The new law is called “The Reproductive Health Act.” You can read the actual text of the bill, Senate Bill S240, here. The change involved an amendment to the public health law, adding Article 25-A, called the Reproductive Health Act. The first part of the law says that every individual has the right to choose or refuse contraception or sterilization. The next section reads that every individual “who becomes pregnant has the fundamental right to choose to carry the pregnancy to term, to give birth to a child, or to have an abortion pursuant to this article.” The article next states that the state can’t discriminate or deny anyone the ability to exercise the rights in the law. But the law then gets more detailed about when abortions are allowed and when they are not.

Read the law below:

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The Law Allows Late-Term Abortions if the Baby Is Not Viable or If the Mom’s Life or Health Is in Danger

The act states that a patient can receive an abortion when “according to the practitioner’s reasonable and good faith professional judgment based on the facts of the patient’s case: the patient is within twenty-four weeks from the commencement of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health.” The act does not state that a late-term abortion can be performed for any reason.

The new law now allows abortion after 24 weeks if the fetus or baby is determined to not be viable. The New Yorker explains how the law worked before. In 2016, Erika Christensen found out that her baby would not live when she was 31 weeks pregnant. At the time, in New York, she would have been guilty of homicide if she terminated her pregnancy because her life wasn’t in immediate danger, so she had to travel to Colorado. The NYCLU also shared a story about Sophia, a woman in her late 20s who was battling five types of cancer when she became pregnant. Her cancer treatment caused her baby to have multiple, severe anomalies that would make the baby unlikely to survive birth. She was past the 24-week mark, however, so she had to travel outside of New York to end her pregnancy.

To recap: previously, the New York law did allow abortion throughout pregnancy when a woman’s life was in danger, but the law now is less strict, allowing late-term abortion if the woman’s health is in danger (but her life isn’t immediately in danger) or if the baby is not viable. Some pro-life advocates are concerned that the danger to a mother’s health might be defined broadly, as it’s not stipulated in the law.


The Law Allows Health Care Practitioners To Perform Abortions, But They Must Be Certified By the State

The law also has expanded to allow not just “duly licensed physicians” to perform the abortions. The act now says that an abortion can be performed by “a health care practitioner licensed, certified, or authorized under Title Eight of the Education Law, acting within his or her lawful scope of practice…” NYCLU noted that the previous law didn’t prevent other health care providers from performing abortions, but it did cause confusion about whether nurse practitioners, midwives, or physician assistants could provide abortions.

Sen. Liz Kreuger, D-Manhattan explained that all abortion providers still have to be certified by the state, Watertown Daily Times noted.


Some Are Concerned that Removing Abortion from the Penal Code Will Affect Pregnant Women Who Are Assaulted

The act also amends the definition of homicide. Homicide is no longer defined to include abortion or causing the death of an unborn child when a female has been pregnant for 24 weeks or more. Abortion is also removed as a definition of homicide. The following part of the law was removed under the definition of homicide: “(Homicide which causes the death of…) an unborn child with which a female has been pregnant for more than twenty-four weeks.” The law also removed homicide from being defined as “abortion in the first degree or self-abortion in the first degree.” This, in essence, moves abortion from the penal code to the health statutes in New York, CBS News explained.

Republicans who opposed the bill were concerned this might make it more difficult for pregnant women who lose their baby in an assault to press criminal charges. Democrats disputed this concern, CBS noted. Republicans have offered proposals for new legal penalties in cases where pregnant women are assaulted. It’s not clear at this time what those proposals are or if they will pass.

Lawmakers brought up the criminal code concerns during a recent debate, Watertown Daily Times noted. Before the vote on the Reproductive Health Act, Senate Republicans had a news conference with Army veteran Livia Abreu, who lost her baby in a domestic violence incident. Her attacker is facing criminal abortion charges — charges which are no longer available after the law change. Sen. Liz Kreuger, D-Manhattan, argued that abortion should never have been in the criminal code in the first place. “This is a health care service and should be in the health care law,” she said. Krueger said first-degree assault has a heavier penalty than criminal abortion and the two charges would run concurrently, so removing criminal abortion won’t result in shorter sentences. However, it’s unclear how this actually works in a case where the unborn child’s death would fall under the category of homicide. Before the new law passed, this theoretically would have fallen under the definition of homicide (which is either murder, aggravated murder, manslaughter or criminal negligence depending on the circumstances) and now it would be a first-degree assault charge instead under New York law.

However, it’s a little more complex than that. In 2015, an Onondaga County prosecutor said that this New York state law regarding the death of an unborn child only pertained to late-term abortions and not a case where a driver rammed her car into a pregnant woman, causing her to lose her baby. In that case, the driver was found guilty of assaulting the pregnant woman and was sentenced to 20 years. Then in a different case, People v. Jorgensen in 2015, the court noted: “the legislature has determined that a woman who is pregnant for more than 24 weeks, and who commits or submits to an unjustifiable ‘abortional act’ that causes her to miscarry, is guilty of a class A misdemeanor (Penal Law § 125.55), not a felony… Both ‘self-abortion’ statutes require the mens rea of intent, and, yet, the legislature has determined that the punishment for such intentional conduct is no greater than a misdemeanor.” So in that particular case, the New York court treated this law as a misdemeanor and a self-abortion statute only.

It appears that under different New York laws, a homicide can still be deemed if a baby is born alive and then later dies due to injuries inflicted on the mom while she was still pregnant, so that approach still remains. As noted, the situations are complicated and the effect this law change could have on punishments is a complex issue.

Even understanding exactly what the law now reads, the change is still controversial and still the source of much debate between pro-choice advocates and pro-life advocates. Some believe that abortion should not be allowed in any circumstances. Others are concerned about what standards doctors will use to determine if a late-term fetus or baby is viable. Still others are worried about the potentially ambiguous nature of determining if a mother’s health is in danger. Meanwhile, pro-choice advocates believe that the law before the change was too limited, forcing women in dangerous health situations to travel outside the state. As you can see, the law as it stands is still hotly debated, but it should be understood that despite what many memes may indicate, it does not allow any late-term abortion for any reason.