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.