A New York Woman Is Arrested for Self-Induced Abortion: What Does This Tell Us About Abortion Law?

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Posted in: Criminal Law

Last month, New York City police arrested Yaribely Almonte, a 20-year-old woman, for “first-degree self-abortion,” a misdemeanor punishable by up to a year in jail.  Almonte allegedly terminated her own pregnancy at twenty-five weeks by drinking an abortion tea.  The building superintendent reportedly found the dead fetus in a trash can, while he was sorting recyclables outside the Washington Heights apartment complex where Almonte lives.

Under a New York statute, a woman who has been pregnant for over twenty-four weeks is guilty of self-abortion if she “commits or submits to an abortional act upon herself which causes her miscarriage.”  In this column, I will examine the law under which Almonte was charged against the background of the constitutional, legal, and moral status of the right to terminate a pregnancy.

The Regulation of Abortion Under Federal and New York Law

As readers undoubtedly know, the U.S. Supreme Court, in its 1973 decision in Roe v. Wade, announced that a woman has the fundamental constitutional right to terminate an unwanted pregnancy until the point of fetal viability.  The Court has, in the intervening years, reduced its scope, but abortion still remains a constitutionally protected individual right.

Women are thus free to terminate their pregnancies prior to fetal viability.  Many state legislatures, however, and Congress as well, have created restrictions on this freedom.  Under a federal law upheld by the U.S. Supreme Court in Gonzales v. Carhart, for example, a doctor who carries out a type of abortion that opponents call “Partial Birth,” and that medical professionals call “Dilation and Extraction” is subject to criminal prosecution.  In addition, most states mandate parental involvement when a minor wishes to obtain an abortion, and even adult women in various jurisdictions must submit to pre-abortion counseling, during which they hear information (along with misinformation) calculated to dissuade them from terminating a pregnancy.  Following counseling, moreover, many states require women to observe waiting periods before returning to their providers for the actual procedure.

In addition to these and other legal obstacles, many women must also face hostile protesters carrying graphic signs and yelling accusations as patients make their way into clinics to exercise their reproductive rights.  With the combination of lawful protests, criminal intimidation, and anti-abortion violence, described in riveting detail by Susan Wicklund in This Common Secret, a number of medical professionals have stopped terminating pregnancies altogether.  As of 2008, 87% of U.S. counties reportedly had no abortion provider at all. Women in some parts of the country must accordingly travel for days (and thus risk losing their jobs) to terminate their pregnancies.

New York State law, however, is unusually liberal on the question of abortion.  New York has no waiting periods and no mandated parental involvement for pregnant minors.  Perhaps as a result, the abortion rate in New York has consistently been much higher than the U.S. rate, and New York has in some circles acquired the title of abortion capital of America.

What’s Wrong With Banning “Self-Abortion”?

When I first read about the case of Yaribely Almonte in the newspaper, I found it quite puzzling.  Were New York police seriously arresting a woman simply for failing to use the services of a doctor?  What purpose could such a law possibly serve?

It would appear that if a woman could have received a legal abortion from a doctor, then her decision to self-induce instead would likely reflect a combination of (a) fear of medical professionals; (b) ignorance of her rights; (c) lack of healthcare coverage; and (d) concerns about deportation.  Unlike, say, a man who wants to drive his car without wearing a seatbelt, a woman who opts for a self-induced abortion is unlikely to alter her unwise behavior in response to a paternalistic threat of criminal prosecution.

Indeed, prosecuting women for self-induced abortion is likely to prove affirmatively counterproductive.  A woman who has suffered the foreseeable consequences of self-induction—including infection and bleeding—could well be reluctant to seek medical attention, for fear of providing evidence of her criminal act.  If the law is intended to protect a woman’s health, it may therefore have the perverse effect of deterring her from seeking emergency care.

If one’s goal is, instead, to protect the fetus, then it seems downright bizarre to do so by requiring women to have a medical professional terminate their pregnancies.  It is akin to trying to protect human life more generally by prosecuting murderers for failing to use a licensed assassin.  Upon closer examination of the New York statute, however, it becomes clear that the charges against Yaribely Almonte have very little to do with the fact that she induced the abortion on her own.

The New York Prohibition in Context

To understand the New York law, it may be useful to note that it went into effect prior to the Supreme Court’s decision in Roe v. Wade.  We thus cannot properly understand the statute as a means of “chipping away” at the right protected by Roe.  On the contrary, New York legalized abortions that precede twenty-four weeks’ gestation several years before the U.S. Supreme Court extended constitutional privacy protection to such abortions.

The New York statute exempts from criminal coverage those abortions performed by or on the advice of a physician during the first twenty-four weeks of pregnancy, or later, if necessary to save the life of the woman.  By coincidence, a fetus currently becomes viable at approximately twenty-four weeks into a pregnancy, and viability is the point at which abortion may be prohibited pursuant to Roe v. Wade itself.

A Focus on Self-Induction May Be Merely a Distraction

New York law undoubtedly favors the involvement of a physician in the abortion decision.  With a woman’s consent, the statute authorizes a duly licensed physician to perform an abortion up until twenty-four weeks gestation and, if the doctor reasonably believes it is necessary to save the woman’s life, the law permits an abortion even after twenty-four weeks have passed.  A woman may self-induce within the first twenty-four weeks, by contrast, only upon the advice of a duly licensed physician.  And after twenty-four weeks, she may self-induce abortion only if a duly licensed physician advises that the act is necessary to save the pregnant woman’s life.

The decision in Roe v. Wade itself shares the New York statute’s preference for physician involvement in the decision to terminate a pregnancy.  In the words of the majority, during the first trimester of pregnancy, “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated.”  Reading this language, one could be forgiven for believing that the physician is the primary rights-holder who must only “consult with” the pregnant woman about termination.  We could identify—and scholars have, in fact, identified—serious flaws in this doctor-centered right to abortion, but it is plainly not unique to New York law.  More importantly for Yaribely Almonte, her case falls outside the doctor-preference rule.

Yaribely Almonte faces a charge of first-degree self-abortion, which requires that at the time she induced a miscarriage, she had to have been more than twenty-four weeks pregnant.  At this point in her pregnancy, neither she nor her doctor could have lawfully initiated an abortion in New York unless it was necessary (or her doctor reasonably believed it was necessary) to preserve her life.  I have so far found nothing in the news coverage to suggest that Almonte’s pregnancy posed a threat to her life.  It therefore follows that at her reported stage of pregnancy, she would have been violating the law in terminating her pregnancy regardless of whether she performed the abortion on herself or instead enlisted the assistance of a doctor.  In the words of the statute, “[a] female is guilty of self-abortion in the first degree when, being pregnant for more than twenty-four weeks, she commits or submits to an abortional act upon herself which causes her miscarriage [with an exception for preserving her life] . . . .” (emphasis added).

The Discordance of Treating a Woman Who Terminates Her Pregnancy as a Criminal

We have seen that under New York law, a woman who has a post-viability abortion in the absence of medical necessity commits a crime whether or not a doctor is involved.  If a doctor does perform the abortion, then he or she too commits a criminal offense.  The pregnant woman’s own criminal responsibility for voluntarily terminating a late-term pregnancy is therefore a constant.

After twenty-four weeks’ gestation, the law thus does not distinguish self-induced abortions from doctor-performed abortions.  What the law plainly does is treat the woman who terminates her late-term pregnancy in the absence of medical necessity as a criminal.  It turns out that this feature of charging the woman—here, Yaribely Almonte—with a crime makes the case distinctive.

The anti-abortion movement has tended to focus on abortion providers as the relevant wrongdoers, contending that the abortion industry preys on vulnerable women who need support and guidance rather than an abortion.  And even some of the more extreme state initiatives against abortion—those that would prohibit all abortions from the moment of conception—treat the provider, but not the pregnant woman, as a criminally culpable party.

This leads to an ironic state of affairs:  in New York, a very pro-choice state where women have broad legal and factual access to abortion, a woman may be prosecuted for having an abortion.  But in a state that would prohibit all abortions—thereby assuming no constitutional right whatsoever to terminate a pregnancy—a woman may not be prosecuted for having an abortion.

I will here offer my hypothesis for this odd disparity.  Pro-life and pro-choice advocates as well as legislators of all stripes are conscious of the unique circumstances of a pregnant woman.  Unlike any other parent or caregiver, the pregnant woman is biologically intertwined with her embryo/fetus/child in a manner that makes it impossible for her to exercise her interest in bodily integrity against being occupied by another life without simultaneously killing him/her/it.

For the pro-choice movement, this reality provides the foundation for a woman’s right to terminate her pregnancy:  the state must not force an individual to endure an unwanted months-long and substantial invasion of her bodily integrity.  Regardless of how early the embryo or fetus might “graduate” to full personhood, a pregnant woman continues to retain her entitlement to bodily integrity.

The pro-life movement, of course, rejects the premise that an interest in bodily integrity could trump a living embryo’s or fetus’s interest in continued life.  For the pro-life advocate, the in-utero human has as much of a right against intentional killing as the ex-utero human has.

Yet many within the pro-life movement remain aware of the fact that a pregnant woman’s situation is distinct from the situation of other people around her who might act to end an innocent life.  The pregnant woman is uniquely vulnerable because she has a baby growing inside her, while her doctor is not similarly vulnerable.  Though a pro-life advocate does not view this vulnerability as a license to kill, she does view it as an extenuating circumstance—a condition that excuses an act which would otherwise qualify as murder.  For the pregnant woman who experiences pregnancy as an unwanted intrusion on her body, a significant sector of the pro-life movement has compassion and empathy and thus refuses to subject her to criminal punishment.

The New York law, by contrast, reflects neither a pro-life nor a pro-choice understanding of pregnancy.  New York does not join the pro-life movement in taking conception to be the moment at which a rights-bearing human life comes into existence, but New York also resists the pro-choice idea that the “personhood” moment has no bearing on the woman’s entitlement to terminate.  For the New York legislature when it passed this statute—and perhaps for the law enforcement officials pursuing Yaribely Almonte as well—life begins at viability, after which abortion is a crime akin to murder, both for the pregnant woman and for her provider.

The New York law takes into account the unique circumstances of a pregnant woman in a manner that differs from that which animates both the pro-choice and the pro-life movements.  New York provides that until the fetus becomes a life, at twenty-four weeks, the woman will decide whether or not to carry her pregnancy forward.  Her consent is a critical and legally essential component of a legal abortion, no matter how early and no matter for what purpose she acts.  Her doctor commits a crime if he or she proceeds without the woman’s consent.

New York law also recognizes the uniqueness of pregnancy in providing an exception, after twenty-four weeks, allowing an abortion if necessary to preserve the life of the mother.  New York law does not authorize a parent to kill a separate child to save the parent’s life (for example, if a father would starve to death unless he consumes the flesh of his child).  But New York does authorize an abortion to preserve the mother’s life, thus acknowledging that a pregnancy invades a woman’s body in a distinctive manner that permits lethal violence in self-defense.

When a woman faces no threat to her life, however, and when her pregnancy has passed twenty-four weeks, New York law refuses her the right to use deadly force to end her predicament.  It views her act of abortion as a culpable killing committed by her, because of the stage of fetal development, and it views the woman’s bodily integrity as carrying virtually no weight in the face of her obligation to refrain from killing her child.

Like the pro-choice and pro-life movements, New York has wrestled with the uniqueness of pregnancy and come to its own conclusions.  Whether its conclusions can survive, given their tension with those of both major movements that hold positions on abortion, remains to be seen, along with the uncertain fate of Yaribely Almonte.

  • Barry Montgomery

    Neighbors.

    Pregnancy is by choice, not chance. 

    The Bible, Genesis 2.7, says human life begins at first natural breath in the instant when the Spirit of the Creators join with the physical body, living tissue, but absent of the Word. 

    Only a woman has domain over her body and is the only one with stewardship, care and custody of the life forming in her body. 

    Giving birth is her sole decision and option. 

    No man, no law may divest her of this Un-alienable Right. 

    This I believe, Barry. 

  • JohnDoeUtah

    In Utah a teenager hired a friend, for $150.00, to beat her until she miscarried because a doctor in Utah would not give her an abortion.  The Juvenile Court determined she could not be charged criminally – due to her right to choose – however the guy was charged with murder, whic was reduced to aggrivated assault.

    Two weeks ago, the Utah Supreme Court ruled that a “beating” to cause an abortion was not a medical procedure contemplated by state law at the time, and ruled that the teenaged girl should be charged criminally, and that the young man’s charges should be changed back to the original.

  • Sheilah Blanco

    You know, that baby could have been delivered LIVE after 24 weeks or rather 6 mos. and the child could have lived separated from their mother with proper medical attention.  Most people realize that medicine has come a long way, thus New York (like many other states) has taken the stance that it should be illegal to kill a human life once they might feasibly live without the assistance of their mother’s body as host.  Some people have lived being delivered at 5 months, and that though incredibly rare has happened without the help of modern medicine.  So it stands to reason, the child had to be killed before, during or after the abortion, if Ms. Almonte has been arrested for Self Induced Abortion.  I’m sure she would rather face the charges for Self Induced Abortion than Murder One. 

    I can understand how a woman might feel that a pregnancy is an intrusion to her life, but to wait to make that decision until one is well into or in this instance past the second trimester speaks volumes of mental incoherency and dereliction.  I propose this has to be her only defense.  If one waits that long why not wait but 80 or 90 days longer, let the child live and give it up for adoption?  Ms. Almonte has made a wrong decision regardless of who looks at it.
    I’m sure we all wonder about her motive.    Was it vanity?  Was it poverty?  Addiction?  Social Status?  Rage?  Or all combined?

    I hope during the time she serves in prison she gets enough counseling to  come to terms with what she has done,  finds a way to forgive herself and seeks a life of reparation,  and yes  redemption.   No woman I’m sure can envy her predicament. 

    In a way, Ms. Almonte is fortunate that  she  was ‘caught’ and that the law is enforcing their perogatives.  There have been numerous incidence of women performing such a crime only to further destroy their own lives either directly by suicide or indirectly by addictions used to self medicate their incomprehensible demoralization resulting from said crime.

    Meanwhile, society MUST draw the line somewhere. 

    You lawyers can litigate and argue all you want about circumstance, mind frames, evidence and whatever facts relevent to this case, but there will be more of the same without more funding towards Family Planning and Education.  The monies spent on prosecuting and    defending such women resorting to such barbarisms could better be used in prevention. 

    More cuts to vital services such as neighborhood health clinics, and women’s health services and what we’re calling entitlement programs and we’ll soon hear of parents bludgeoning their younger children because they’ve been laid off from their jobs and can’t afford to feed and house the families they already have.  Really, is there much difference?  Would it have been that much different if Ms. Almonte’s child had lived till say aged 2 and then had his/her mother kill them?

  • Soraccoe

    Sherry, I would have preferred that you expressed your own professional conclusions in this article.  As a professor of law with an apparent expertise in the constitutionality of the law, I think you owe it to the public to walk that extra distance to offer your opinion.  Why?  Because due to your command of the issues you have a greater capacity to go the distance in this article and because critics of Roe v Wade abound while thinkers and reformers are scarce.         

  • Anonymous

    Ms. Colb’s article is well-reasoned, compassionate, and sound.  Criminalizing a woman’s role in her own abortion seems odd to me.  If
    the state is going to criminalize such an act, the state needs to offer
    an equivalent opportunity to not be a criminal.  It will spend far more to
    prosecute and incarcerate Ms. Almonte, even if only for one year, than
    it would have spent to offer her “free” counseling, prenatal care, labor
    and delivery services, and placement of her child for adoption with a
    family that would love and nurture the child at its own expense, not
    that of the state.  It seems our priorites are confused.

    If, as Ms. Colb leaves the door open to assumption, Ms. Almonte is an illegal
    immigrant who feared deportation if she went to a medical professional
    (before or after her abortional act), then the federal government bears
    some responsibility in all this for not enforcing immigration law, which
    itself criminalizes Ms. Almonte, and would have kept her out of the country, or would have actively
    sought her out and deported her.  In her homeland, she would be subject
    only to that country’s views on abortion.  And those who advocate for “open borders”, well, Pro-Life or Pro-Choice, it matters not, you bear a large part of the responsibility for this, too. 

    If the illegal immigrant issue is moot, on the other hand, the Pro-Life community bears some responsibility in this for not doing a better job of making all women aware of services that can assist them — if any actually exist.  The Pro-Life community does a terrific job (sometimes) of terrorizing women through their picketing and boisterous language and conduct.  But where are their adoption services or their shelters for women who cannot afford the cost of prenatal care, labor and delivery, and the expense (or the prospect) of raising a child in the absence of a working husband or employment of their own?  They joyously scream, “Murderer!” in an attempt to intimidate a frightened young woman into turning around and leaving to go . . . where? 

    I find virtually no compassion in these Pro-Lifers, many of whom hide behind the banner of a “church”, for the plight of the woman who believes she has no other alternative to her pregnancy at this point. This is not to whitewash all such persons, because in some areas, there are more proactive Pro-Life organizations that actually do attempt to help.

    The Pro-Choice community is not immune from responsibility in this either.  Sure, just let women abort a pregnancy any time they want.  Then hop back into the sack with the next erection waiting to inseminate her.  Are there no ramifications, no consequences, for the absence of personal responsibility in all of this?  To be certain, the entire Pro-Choice community is not amoral, but it tends to overlook what is, for a large segment of our society — perhaps even a majority, a morality issue.  Many of the same Pro-Choice actors advocate for the removal of religion from society, and even the mere mention of religion in the public schools (oh, it’s OK to discuss how the Muslims were persecuted during the Crusades, and how they pray to Mecca five times a day, and what wonderful values are found in the Quran, and to teach about the benefits of Shari’a law, but just try to mention the word Christianity or Judaism in a public school today, and see what happens). 

    Understandably, views on morality emanate from religious ethics, not the other way around.  In the absence of “religion”, there can be no morality.  Witness the downfall of the Roman empire that profoundly laid the groundwork for Western democracy.  They had “gods” to whom they made petitions, but they had no religion.  They tolerated the Jews to a limited extent, were intolerant of the Christians (just more “radical” Jews) [and the Muslims?  Well, that group wouldn’t even exist for another 600 years or so] and descended into utter moral depravity which collapse the government and the empire.  There are signs, today, that America is heading in the same direction. 

    As a Jewish-born and converted Christian, I understand the dilemma of Pro-Life vs. Pro-Choice.  We are endowed with God-given free will (whether one believes in God or not, is relatively immaterial to the concept — to the agnostics it’s simply “if it doesn’t hurt me, I am free to do it” — similar in nature to the ’60s slogan “If it feels good, do it!”), and some exercise that freedom in a way that contradicts what the church (regardless of denomination) would prefer all of us to do doctrinally.  And those who oppose the whole notion of free will seek to impose their concepts of morality on the rest of us.  Unfortunately, morality cannot really be legislated.  That’s not to say we haven’t done it, because we have, we do, and we will probably continue to do so in the future.  But most such attempts are ultimately doomed to failure.

    We have laws that are necessary to promote the public’s safety and well-being, and laws that intend to prevent utter chaos and anarchy.  But then we have legislators who insist on going well beyond the “public good” and craft morality legislation for no apparent reason other than the conduct they wish to regulate or deregulate offends their personal sense of morality, forcing their beliefs on the whole of society with which the whole may not really agree or even perceive a problem that needs “correcting”. 

    Pro-Life . . . Pro-Choice?  It really doesn’t matter much, to me, because they both are right and they both are wrong.  If the two sides actually took a step back from their “positions” and looked at each other instead, they might actually see some common ground between them.  Join forces to provide women with genuinely NEUTRAL counseling, provide women with genuine ALTERNATIVES to the ultimate effect of pregnancy (which is bringing another human life into the daylight) and allow them to choose which one makes the most sense to them.  Create the shelters, the prenatal clinics, the labor and delivery services, the adoption placement services, AND the abortion clinics — put it all on the table, and make it all “free” one way or the other (adoptive parents could pay some of the freight, instead of paying lawyers to arrange adoptions or surrogate parents, and both lobbies could fund whichever aspect of the equation they prefer) — and with all the FACTS on the table, simply let the woman choose the alternative that makes the most sense to her.  No brow beating, no intimidation, no untruths on the table. 

    The woman’s maternal sense of morality (or absence of it) will send her in the direction that’s right for her.  No one can argue with that, and no one is forcing her in one direction or the other.  Today, women don’t always have those choices available to them, and it forces them to make decisions under duress.  You cannot criminalize those decisions. 

  • Doug

    It is interesting that most arguments supporting “choice” never seem to address the other side of the situation.  Copious examples are given of how women are badgered, coerced, decieved, threatened and intimidated into not having an abortion by religious radicals and fundamentalists, but they never seem to cover the same efforts by people around the pregnant woman that are exerting much the same pressure to have the abortion.  “It will ruin your future, you don’t need this right now, I’ll leave you, you’ll be banished from the family/school/etc.”  Much less that those voices are much more important to the woman relationally than some medical professional, pro-lifer, or picketer.

    We are not talking about a woman’s choice to keep her hair long or cut it short, and a band of long-hair fanatics making her feel “dirty” for wanting to have it cut short.

    I have my own opinions and perspectives on the abortion issue, but will refrain from voicing them here because that is not really why I am responding.  I am responding because we are often lured into defining an issue from our viewpoint at the expense of the unbiased facts.  More than other segments of the writing community, don’t attorneys and journalists have an obligation to their community to be objective and unbiased?

  • kyle

    Sick and disgusting people, murdering your child doesn’t take away the fact that you’re still a mother, you simply become the mother of a dead child. Accountability *shakes head* the horror that waits these people I can’t even imagine.