Women must carry nonviable pregnancies to term because of restrictive New York law

Currently, New York outlaws abortion after 24 weeks gestational age. During this stage of pregnancy, fetal nonviability, or the inability to develop or survive independently, can be discovered through routine prenatal testing and can change the course of a wanted pregnancy.[i] After discovering at 30 weeks that her fetus was not viable and would die shortly after birth, Erika Christensen and her husband made the decision to end their wanted pregnancy at 32 weeks. Last year, Christensen anonymously told her story via Jezebel.[ii] Her experience details the impact of restrictive bans on later abortion, and the consequences of legislation that imposes limits at specific gestational ages without exceptions for health or fetal non-viability. Christensen was forced to spend two weeks coordinating travel to and lodging in Colorado where she could obtain the care she needed and ultimately had to pay more than $10,000 for the procedure. She chose to tell her story again to the NYCLU[iii] and to Rewire[iv] in light of legislative action on New York’s Reproductive Health Act.

In 1970, New York enacted a law that defines legal abortion as "Within first 24 weeks or necessary to preserve mother's life; if mother performs abortion it must be on the advice of M.D. within the first 24 weeks or to preserve her own life". However, the law does not allow abortions after 24 weeks even if the fetus is determined to be non-viable [iii][v]. This past year, the Reproductive Health Act (RHA), S2796, was introduced in the state legislature with 3 primary components:

  1. Eliminates abortion from the penal code and adds it to the public health law to assure abortion is seen as a public health issue and not a criminal one.
  2. Allows for abortions post 24 weeks in the cases of non-viability of fetus and/or when the health and life of the mother is at risk.
  3. Expands the scope of who can provide abortion by allowing nurse practitioners, physician's assistants, and licensed midwives to provide care. The RHA passed in the New York State Assembly in January but despite strong support from stakeholders such as the American Congress of Obstetricians and Gynecologists.

The RHA has even garnered international attention prompting United Nations officials from the office of the High Commissioner for Human Rights to write a letter to UN Secretary General António Guterres in support of the passage of the RHA.[vi] Although the House version of the bill passed, the RHA failed to move out of the Senate Health Committee prior to the end of the legislative session in June. For more information about the Reproductive Health Act see the language of S2796 here.

[i] Kerns, JL, Swanson M, Pena S, Wu D, Shaffer BL,Tran SH, Steinauer JE. Characteristics of women who undergo second-trimester abortion in the setting of a fetal anomaly. Contraception. 2012; 85(1): 63-68.

[ii] Tolentino J. "Interview with a woman who recently had an abortion at 32 weeks." Jezebel.com, 15 June 2016.

[iii] Bodde K and Krueger S. Critical conditions:how New York’s unconstitutional abortion law jeopardizes women’s health. January 2017.  

[iv] Christensen E. "New York forces women like me to carry nonviable pregnancies to term." Rewire. 23 May 2017.

[v] N.Y. Penal Law § 125.05(3)(b) (McKinney 2002). The law criminalizes abortion by third parties and self-abortion. Penalties for violating section 125.05(3) by performing an “abortional act” that is not “justifiable” range in severity depending on the outcome and the point in gestation at which the termination is performed. See N.Y. Penal Law.§§ 125.00,125.45,125.15, 125.20, 125.40

[vi] Liss-Schultz N. The UN just called New York out for its dangerous anti-abortion policy. Mother Jones. 20 June, 2017.



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