A New York Law Has Catapulted Later Abortion Back Into the Political Spotlight. Here’s What the Legislation Actually Does

A new law expanding abortion rights in New York has simultaneously been hailed by abortion rights advocates and condemned by anti-abortion activists as among the “most aggressive” in the country, fueling an ongoing debate about later abortions.

A similar bill proposed in Virginia, which would have reduced restrictions to allow for later abortions if a woman’s health is threatened, renewed that controversy Thursday. Conservatives lashed out at Democratic Virginia Gov. Ralph Northam for defending the bill, claiming he supports the killing of infants after delivery. Northam, a pediatric neurologist, called that insinuation “shameful and disgusting.”

The Trump White House has highlighted the issue, prompting speculation that later abortions will become a focus in the 2020 election. President Donald Trump tweeted Thursday that “Democrats are becoming the Party of late term abortion, high taxes, Open Borders and Crime!” Vice President Mike Pence said both the Virginia bill and the New York law “should be a call to action.”

The New York law comes at a time when advocates on both sides of the abortion debate are preparing for the possibility that Roe v. Wade — the landmark 1973 case that effectively legalized abortion nationwide — could be overturned by the U.S. Supreme Court, intensifying the focus on state abortion laws.

Here’s what to know about the new law:

What does the law do?

Under New York’s previous law, which had been in place since 1970, abortion was legal during the first 24 weeks of pregnancy. After 24 weeks, a pregnant woman could only get an abortion if her life was at risk.

The newly enacted Reproductive Health Act expands on what’s legal after 24 weeks, allowing a woman to get an abortion after 24 weeks if her health is threatened, not just her life, and if the fetus would be unable to survive outside the womb.

The new law also moves abortion regulations from the state’s criminal code to the health code, thereby removing the threat of criminal prosecution for medical professionals who perform abortions. And it allows nurse practitioners, physician assistants and licensed midwives, in addition to doctors, to provide abortions.

Democratic lawmakers had attempted to pass such a law for years in New York, but it previously failed to pass the Republican-controlled State Senate. In November, Democrats won back control of the State Senate for the first time in nearly a decade. And New York Gov. Andrew Cuomo, a Democrat, vowed to take the opportunity to broaden reproductive rights for women.

Why does it matter?

New York’s law is not unprecedented. In 19 states, later abortion is permitted to save the life or health of the woman, according to the Guttmacher Institute, a research and policy organization that advocates for reproductive rights.

But New York’s law is the latest of what is expected to be a wave of abortion legislation in coming years. It was signed on Jan. 22, the 46th anniversary of the landmark 1973 Roe v. Wade Supreme Court ruling.

The passage of the New York law was celebrated by supporters as a safeguard against the newly conservative makeup of the Supreme Court. “With the signing of this bill, we are sending a clear message that whatever happens in Washington, women in New York will always have the fundamental right to control their own body,” Cuomo said last week.

During his presidential campaign in 2016, Trump said overturning Roe v. Wade “will happen automatically” because he would appoint conservative Supreme Court justices. He said in July that he thinks abortion rights laws could be left to the states “at some point,” meaning individual states would determine how much access, if any, women have to abortion.

Four states — Mississippi, Louisiana, North Dakota and South Dakota — have already passed laws that would automatically ban abortion if Roe v. Wade is overturned, according to the Guttmacher Institute. In 2018, 15 states passed new restrictions on abortion and family planning, according to the institute. Iowa went the furthest last year, banning abortion once a fetal heartbeat is detected — as early as six weeks into pregnancy. A state judge struck down that law last week.

But in left-leaning states, such as New York, lawmakers are working to pass legislation that would protect abortion rights even in the absence of Roe. Last year, Massachusetts formally repealed an abortion ban, and Washington passed a law requiring insurers that offer maternity care to cover abortions and contraception.

Why is the New York law controversial?

Anti-abortion activists have said the New York law is an extreme step that goes too far in expanding access to abortions later in pregnancy, arguing that legalizing abortion for women whose health is at risk — a broader category than the prior law — gives doctors too much discretion. “This radical expansion of abortion on demand through birth is a tragedy to be mourned, not a victory to be celebrated,” Marjorie Dannenfelser, the president of the anti-abortion group Susan B. Anthony List, said in a statement.

But abortion rights advocates point out that the new law brings state policy in line with legal precedents established by Roe, and the idea that the law allows any woman with a healthy, risk-free pregnancy to have an abortion “through birth” in the third trimester is flawed.

“It’s not for everyone,” says Erika Christensen, an abortion rights advocate. “It’s for people after 24 weeks who find themselves with either bad pregnancy indications for the fetus or threats to their own health.”

Christensen, who lives in New York and first shared her story in Jezebel, had to travel to Colorado to get an abortion in the third trimester of her pregnancy in 2016 after doctors told her the baby she was carrying had a rare compounded muscular condition that would be fatal soon after birth. At the time, the procedure was illegal under New York law because she was 30 weeks pregnant, and her life was not at risk.

“It wasn’t until the 30th week that we got the very dire information that the fetus would not be able to breathe on the outside of my body,” Christensen says. “The way we understand life, the way we reckon with our own morals and belief system, we did not want that outcome — for a baby to be born just to suffer for a few short moments before death. That did not sound like life to us. It did not sound like peace to us.”

She hopes the new law means other women will have more options for care than she did.

“In this particular case, with the law in New York, we’re generally talking about people who very much wanted to be parents and, were the circumstances different, absolutely would have been overjoyed to carry that pregnancy and bring the baby home,” says Christensen, who now has a 1-year-old daughter named Pepper, who she describes as “a pure and utter delight.”

Dr. Anne Davis — consulting medical director for Physicians for Reproductive Health and an abortion provider in New York who advocated for the passage of the Reproductive Health Act — says the law creates options for women who would otherwise have had to travel out of state for treatment, which can be cost-prohibitive for low-income patients.

“This is care we haven’t been able to give, and we want to offer it when we can offer it,” Davis says. “I want to emphasize that it’s really helping people who haven’t had the access to care before — because other people with lots of money and resources and support were able to pull this together and do it.”

Leaders of the Catholic Church, which opposes abortion, have condemned the law and criticized Cuomo, who is Catholic, with some bishops calling for him to be excommunicated. Cardinal Timothy Dolan, Archbishop of New York, called the law “ghoulish” and accused Cuomo of alienating the church. “Those who once told us that abortion had to remain safe, legal and rare now have made it dangerous, imposed and frequent,” Dolan wrote in a New York Post column.

Cuomo dismissed the criticism. “I have my own Catholic beliefs, how I live my life,” he said. “I don’t govern as a Catholic. I don’t legislate as a Catholic.”

Davis says that continuing a pregnancy if a fetus will not survive increases the risks for the mother and can lead to unnecessary complications related to a cesarean section or natural delivery.

“There are some fetal conditions that you cannot diagnose until later in pregnancy, even with the best sonogram in the world. We’re not able to figure stuff out on the early side for everybody,” she says. “I think it’s hard for people who don’t provide obstetrical care to really understand what women go through and the potential risks. These are situations that are sort of not imaginable until you’re in them.”