The Abortion Wars

Ever since Gov. Andrew Cuomo unveiled the Women’s Equality Act last year, Democrats and Republicans have clashed over a controversial abortion rights measure that is one of the planks of the ten-point legislative package.

Republicans have insisted that the measure would make it easier to get an abortion. “Abortion is [already] safe [and] legal in New York State. It’s not going to be changed,” State Senate Republican Conference Leader Dean Skelos told reporters in 2013. “And what I see is the expansion of partial-birth abortion, in from the radical left. It’s an extreme measure and I don’t think it’s absolutely necessary.”

Proponents of the legislation counter that it would simply codify in state law the U.S. Supreme Court’s Roe v. Wade decision. “The only way [opponents] see they have a chance of justifying their opposition to the Women’s Equality Act is to misconstrue, mischaracterize and outright lie about the law and about what the law would do,” said Andrea Miller, president of NARAL Pro- Choice New York.

Now, with election season heating up, the Women’s Equality Act has become a major campaign issue. The Cuomo campaign created a Women’s Equality Party earlier this year, in part to capitalize on the issue, and the governor recently called on candidates to commit to passing all 10 points of the bill.

But politics aside, what would the policy actually do? Who is depicting the bill accurately, Democrats or Republicans?

As with most issues, the answer isn’t simple. Much of the dispute boils down to what exactly it means to codify Roe v. Wade and how the landmark 1973 decision will affect current New York State law.

In layman’s terms, the bill would indeed align state law with Roe v. Wade. But again, that fact does not clearly explain what the change would mean for New York State.

Currently, state law only limits abortions if a woman is 24 weeks or longer into her pregnancy—the period when a fetus is considered “viable,” or potentially able to survive on its own. After the 24-week threshold, state law dictates that a woman can only get an abortion if her life is at risk, a determination that must be made by a licensed doctor.

By contrast, the Roe v. Wade ruling allows for a women’s “life or health” to be taken into account when a physician decides whether to perform a late-term abortion.

Just as important is the lesser-known Doe v. Bolton U.S. Supreme Court case ruling, which was issued the same day as Roe v. Wade and is supposed to be read as a companion ruling. Doe v. Bolton struck down a Georgia law that prohibited abortion except in cases in which the pregnancy would endanger the life of the mother. The ruling also defines “health” to include “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the wellbeing of the patient.”

Supporters of the Women’s Equality Act argue they are not pushing to expand access beyond what the federal government already allows. Miller said women in New York currently are denied abortions when their health—but not their life—is jeopardized after the 24th week of pregnancy, because state law is stricter than the Supreme Court rulings, which are based more broadly on a woman’s health as well as her survival.

Thus, codifying Roe v. Wade in state statute as part of the Women’s Equality Act would indeed expand abortion access.

“The problem is, New York law doesn’t say the same things and what that means in practical terms is that you currently have women in New York State who under federal law should be able to access abortion care when their health is jeopardized after the 24th week of pregnancy, but who are not able to do so because the default [of medical providers is to side with New York State penal law], and who can blame them—it’s a criminal statute,” Miller said. “And let’s be frank, we shouldn’t expect healthcare providers, we shouldn’t expect physicians— particularly physicians treating women with challenging circumstances during their pregnancy—to have a law degree in order to practice medicine.”

Pro-life groups say that the Roe v. Wade standard should not be adopted in New York because it is too vague and that it makes it too easy to get abortions after 24 weeks.

“The problem with the word ‘health’ is that it’s been construed to mean virtually anything,” said Kathleen Gallagher, the director of pro-life activities at the New York State Catholic Conference. “It’s not like a grave physical health exception. It’s a broad, drive-a-Mack-Truck-through-it exception. So we see that as an incentive for abortionists to come on into New York and open up their late-term clinics.”

Opponents of the Women’s Equality Act argue in addition that the legislation would not just change standards but also pave the way for more people to perform abortions in the state.

The bill does repeal several sections of the state penal law that are inconsistent with federal law, specifically removing the provisions that punish a doctor for performing an abortion after 24 weeks in cases other than when the life of the mother is at risk. The bill’s critics claim that the repeal would also remove a requirement that only a licensed physician can perform an abortion.

“The governor’s bill repealed that law and basically doesn’t put anything in its place,” Gallagher argued. “So, basically that means whoever the Health Department decides would be allowed to perform an abortion in New York State. That will undoubtedly expand the availability of abortion in New York State.”

However, the act specifically prohibits such an outcome. The bill language says that it “would not change or alter existing State and federal laws that permit a health care provider or institutions from refraining from providing an abortion for religious or moral beliefs, would not expand the class of individuals who could perform abortions, nor would it alter the current long-standing criminal ban on partial birth abortion.”

Even if New York wanted to broaden the pool of professionals licensed to perform the procedure, Roe v. Wade specifically prohibits it. According to the ruling, “The State may define the term ‘physician’ to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.”

The task of deciding who can perform an abortion in New York is left to the state Education Department’s Office of the Professions, under the direction of the state Board of Regents. Even if the Women’s Equality Act were passed and signed by Cuomo, that responsibility would be unchanged.

“Scope of practice can only be determined by the licensing boards, not by the Legislature,” said M. Tracey Brooks, the CEO of Family Planning Advocates. “And the first section [of the bill] clearly places the Roe v. Wade section in the Public Health Law and so there’s no way that moving it to the Public Health Law can change who can or cannot change who can perform an abortion. That’s determined by the licensing boards.”

Additionally, Public Health Law section 4164, which would not be altered by the Women’s Equality Act, requires an abortion after the 12th week of pregnancy to be performed in a hospital and only on an in-patient basis. After the 20th week of pregnancy, two physicians are required to be present during the procedure.

Brooks also noted that few doctors are willing to perform abortions later in the gestation period for personal reasons or because of concerns about safety.

An abortion surveillance study conducted by the Center for Disease Control and Prevention in 2010, the most recent federal data available, found that 1.2 percent of a total of 765,651 abortions nationwide are performed after 21 weeks. The state Department of Health did not respond to repeated requests for statewide data.

Another question raised by abortion opponents is why Cuomo chose to codify Roe v. Wade instead of Planned Parenthood v. Casey, a more recent U.S. Supreme Court abortion ruling that came down in 1992. The governor’s office did not immediately respond to requests for comment.

Planned Parenthood v. Casey reaffirmed the constitutional right to an abortion and reiterated that states cannot ban abortions before “viability,” or in cases when the life or health of the mother is at risk. However, the ruling rejected parts of Roe v. Wade and held that states could legally pass laws protecting the life and health of the fetus or mother in far broader circumstances, which allowed states to place more restrictions on abortions.

The ruling also found a mandatory 24-hour waiting period was not an undue burden and is constitutional, and upheld parental consent for minors—two restrictions New York State does not have in place.

With the Women’s Equality Act stalled in Albany, Cuomo had previously said that he could support breaking it up and passing the other nine points, which have broad bipartisan support. But lately Cuomo has doubled down on his pledge to pass the full package after the elections.

“This is the modern-day Seneca Falls movement, just being carried to its natural conclusion,” Cuomo told reporters at a Women’s Equality Party event in September. “I believe if the people of this state know that an elected official doesn’t represent support for these ten points, I don’t think that person’s going be an elected official in the State of New York. And I don’t think they should be.”