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Post date: September 8 2016

A.G. Schneiderman Issues Legal Opinion Clarifying That New York State’s Criminal Law Does Not Interfere With Reproductive Health Rights Ensured By Roe V. Wade And Later Cases

News from Attorney General Eric T. Schneiderman

September 8, 2016

New York City Press Office / 212-416-8060
Albany Press Office / 518-776-2427
Twitter: @AGSchneiderman


NEW YORK – Attorney General Eric T. Schneiderman released a formal legal opinion today clarifying that the reproductive health protections afforded to all women pursuant to Roe v. Wade and later Supreme Court decisions are not, and cannot be, diminished in any way by New York’s Penal Law, which was enacted before the landmark Supreme Court decision. The legal opinion was sent to the Office of the New York State Comptroller, which requested the formal opinion in aid of its auditing authority over state payments to health care providers.

“No state law can restrict a woman’s constitutional right to make her own reproductive health choices,” Attorney General Eric Schneiderman said. “This opinion makes crystal clear that all women have a constitutional right to an abortion, irrespective of inconsistent state law. New York’s criminal law cannot penalize reproductive health decisions protected by the U.S. Constitution. Today’s opinion eliminates any ambiguity about the consistency of our state’s law with these federal constitutional rights and, as a result, removes an obstacle some New York women may encounter when trying to make their own reproductive health choices. The opinion also gives reproductive health care providers assurance that they may provide constitutionally protected reproductive health care services to women without fear of being complicit in a criminal act.”

As the A.G.’s opinion reads, in part:

…The New York State Penal Law [Penal Law Section 125.05(3)] states that an abortion is a crime unless it is a “justifiable abortional act,” and provides that in order to be justifiable, an abortional act must be performed either “(a) under a reasonable belief that such is necessary to preserve [the pregnant woman’s] life, or, (b) within twenty-four weeks from the commencement of her pregnancy.”

But the United States Supreme Court has made clear that an abortion is constitutionally protected if it is necessary in appropriate medical judgment to preserve the pregnant woman’s life or her health (Roe v. Wade; Casey v. Planned Parenthood). Therefore, an additional exception for preserving health must be read into subsection (a) of the statute for it to pass constitutional muster.

Likewise, the Court has also made it clear that the right to choose abortion is constitutionally protected from undue burdens until viability, and that the determination of viability must be made by the attending physician.  (Casey, Danforth).  Therefore, an exception must be read into subsection (b) of the statute for  the situation of a fetus that is nonviable after 24 weeks from the commencement of pregnancy. 

The full opinion can be read here.

“For too long and at enormous personal cost, New York’s outdated abortion statute has caused confusion, keeping doctors from providing medically appropriate care and interfering with women’s reproductive health,” said Donna Lieberman, Executive Director, New York Civil Liberties Union. “We applaud Attorney General Schneiderman’s decision to clarify New York law.  His unequivocal findings mean that there should no longer be any doubt that Roe v Wade is the law in New York and that physicians can perform abortions whenever needed to protect a woman’s health or the fetus is not viable. Now, the state legislature should correct our abortion law to comply with the constitution.”

“As one of New York City’s leading sexual and reproductive health care providers, we know first-hand how important it is to secure the legal clarity necessary to eliminate confusion surrounding abortion care in New York State,” said Joan Malin, President and CEO, Planned Parenthood of New York City. “Current New York law allows abortion care throughout a pregnancy when necessary to preserve a woman’s life, however, it prohibits abortion care later in pregnancy when a woman’s health is at risk. This confusion is harming New York women by restricting their access to health care. We applaud Attorney General Eric Schneiderman for clarifying the law and issuing a formal opinion that health care providers can rely on to provide the best care possible to their patients.”

“New York's abortion law, once ahead of its time, for too long has been woefully out of date, causing confusion for providers and leaving women without the full extent of their constitutionally protected right to access abortion,” said Andrea Miller, President of the National Institute for Reproductive Health. “We thank Attorney General Eric Schneiderman for issuing this opinion affirming the protections of Roe v. Wade and clarifying that providers in New York can provide abortion care according to their patients' needs and their best medical judgment. We look forward to the state legislature further updating New York's abortion law, so that New York women have access to the best care possible.”

“New York was wisely one of the early states to legalize access to abortion, recognizing it is a fundamental component of women’s health care,” said Kim Atkins, Board Chair of Family Planning Advocates of NYS. “We applaud Attorney General Eric Schneiderman for issuing this opinion, which is in accordance with our state’s legacy and existing federal protections and affirms women in New York have access to the health care they need, and have a constitutional right to obtain.”

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