Eric Schneiderman for Attorney General

New York Can’t Block Late-Term Abortion in Certain Cases, Schneiderman Says

September 9, 2016

As published in the NY Times on September 7, 2016.

Attorney General Eric T. Schneiderman on Wednesday took a large step toward making New York one of several states to allow late-term abortions in cases where the mother’s health is in jeopardy or the fetus suffers a fatal complication, relying on Supreme Court rulings he said overrode existing law.

In a new legal opinion, Mr. Schneiderman said the 1970 state law, which criminalizes abortion past 24 weeks of pregnancy unless the mother’s life is endangered, did not square with the later Supreme Court decisions in Roe v. Wade and other cases.

“New York law cannot criminalize what the federal Constitution protects, and thus the Penal Law should be interpreted to be consistent with the Constitution,” the opinion says.

While the state law remains on the books, the opinion from Mr. Schneiderman, a Democrat, now gives hospitals and clinics the legal grounding to perform such abortions. Reproductive rights advocates say that no providers currently offer such procedures in New York, so doctors have to send women who need late-term abortions elsewhere — most often to Colorado, where they are legal.

“Now we can feel comfortable that we’re not at all at risk of being prosecuted for taking care of pregnant women who are in an untenable situation, and hospitals don’t need to worry that they’re going to be caught in the middle,” said Dr. Stephen Chasen, a professor of obstetrics and gynecology at the NewYork-Presbyterian Hospital/Weill Cornell Medical Center who specializes in maternal fetal medicine.

In cases where it was not clear whether state law would allow an abortion, Dr. Chasen said, hospitals often had to convene ethics committees and take other steps — including waiting until the mother’s life, not only her health, was in danger — to provide “institutional cover to do what we thought was right all along.”

“I think this opinion can prevent us from having to go through all those steps and just focus on the patient and do what’s obviously right,” he continued.

The opinion comes three years after Republicans in the State Senate helped quash legislation that would have squared state law with the Supreme Court rulings. At the time, Gov. Andrew M. Cuomo, a Democrat, pushed for a 10-part Women’s Equality Act that would have linked the abortion legislation with measures to strengthen laws against sexual harassment, domestic violence and salary discrimination. Though most of the act found widespread support, it died over a last-minute stalemate on the abortion plank.

Among the legislation’s most vocal opponents was the New York State Catholic Conference, whose spokesman said on Wednesday that Mr. Schneiderman’s move would invite providers of late-term abortion to “set up shop” in the state.

“The use of ‘life and health’ of the mother really means abortion on demand throughout all nine months of pregnancy,” the spokesman, Dennis Poust, said.

Advocates vowed to continue to press for legislative action, noting that Mr. Schneiderman’s interpretation of the law, which came in response to a formal request for an opinion from the state comptroller’s office, might not outlast his tenure as attorney general.

For the women in question, the trip out of state can be medically and financially burdensome. And dealing with the insurance bill afterward is no easy lift.

The state law “is just kind of adding this extra layer of expense, shame and health risk to people who are already going through the absolute worst moment of their lives,” said one woman who flew from New York to Colorado in May for an abortion at 32 weeks pregnant after her doctors determined that the fetus was not viable and who asked to remain anonymous to protect her privacy.

The woman, who described her experiences in a lengthy Jezebel interview in June, called the new legal opinion “amazing.”

Late-term abortions are rare, though the precise number is fuzzy. Staff members at the New York Civil Liberties Union estimated that they had fielded only one or two requests a year from women seeking guidance on the procedure, while Dr. Chasen said he saw a handful of such cases every year.