New York’s Governor Andrew Cuomo signed the Reproductive Health Act into law on January 22, 2019, the forty-sixth anniversary of the Supreme Court’s historic ruling in Roe v. Wade. The bill passed the state senate, newly controlled by Democrats, by a vote of 38-24. The New York Assembly, which had passed similar bills for a dozen years running, voted 92-47 in favor of the bill. In this column, I will discuss why the New York legislature moved to amend its abortion laws for the first time in almost fifty years—and how New York’s approach stands in polar opposition to legislative initiatives in other states.
Abortion: A Play in Three Acts
Abortion in the United States has gone from concealed and criminal, to open and common, and, finally, to legal but shamed and constrained. Compare the depiction of abortion in three popular movies, which capture life in American over 40 years.
In Dirty Dancing, released in 1987, but set in 1963, Jennifer Grey plays Frances “Baby” Houseman, a privileged girl from New York who goes to a family resort in upstate New York her last summer before leaving for Mount Holyoke. While at the resort, she falls for the camp’s dance teacher, Johnny Castle, played memorably by the late Patrick Swayze. His dance partner gets pregnant by one of the college boys who works at the resort and is under strict orders not to consort with the lower-class dancers. With Baby’s help—she lies to her father to obtain money to pay—the partner, Penny, obtains an illegal abortion. She sustains life-threatening complications—the dancer who drove her to the appointment says “the guy had a dirty knife and a folding table. I could hear her screaming in the hallway and I tried to get in. He didn’t use no ether, nothing.” Penny refused to allow an ambulance to be called because the hospital would call the police. Baby, wanting to show she’s not the elitist snob they assume her to be, summons her father, a doctor, for medical help. He saves Penny’s life, but learns that his money was used to pay for an abortion and, worse, that his daughter lied to him about why she needed the money, and, worse still, that she is consorting with a poor dancer. He forbids her to spend time with “those people,” a command she ignores as she continues to be Castle’s surrogate dance partner and, eventually, his lover. Penny disappears from the film, just another woman almost killed by a botched, illegal abortion.
In Fast Times at Ridgemont High, a movie both released in and depicting the 1980s, Jennifer Jason Leigh plays a very young teenage girl named Stacy, who has sex once, for the first time, with an older boy and gets pregnant. By the 1980s, the Supreme Court has decided Roe v. Wade, which held that a woman’s right to seek an abortion was constitutionally protected. When she tells him the news, he questions whether the baby is his, but, once convinced, says “Look, we gotta do somethin’ about it. I mean, uh, we gotta get an abortion. My brother Art got his girlfriend one once. It’s simple. It’s no big deal.” And Stacy follows with “Yeah. I got that planned. It’s going to cost $150 at the Free Clinic.” Stoner/slacker Mike complains: “Doesn’t sound free to me. I suppose you want me to pay for it.” Stacy: “Half, okay? And a ride to the clinic.” Mike agrees to the deal. “Seventy-five dollars and a ride. Okay.” Stacy is shown at the clinic undergoing the abortion. Mike never shows up to pick her up, though, and she and her mall rat friends regret her involvement with this “piss-ant.” Just another teenage girl with relatively easy access to abortion if she can come up with 150 bucks and a note to miss school.
Three decades later, and still in the era, ostensibly, when abortion is a constitutionally protected right, the film Juno was released. That movie is about a millennial teenage girl who struggles with an unexpected pregnancy. The plot revolves primarily around Juno’s decision to place the child for an adoption with a couple she has hand-picked. But before she settles on adoption, she plans to terminate the pregnancy. She calls a clinic and says she wants to procure a “hasty abortion.” She goes to the clinic, where there is a girl, a classmate of Juno’s, protesting. She is shouting “All babies have a right to be born! All babies have a right to be born!” Juno realizes that she knows the girl and gives a shout to her—“hey Su-Chin, is that you?” Juno walks by the protester, seemingly unfazed by her shouts. But then Su-Chin changes up her taunts and switches to a direct question: “Juno, do you know that it has nails?” Juno turns back and says “It has nails?” And with the turn of a heel, she changes her mind, decides to carry the fetus to term and place it for adoption.
These three movies span more than a generation and, in their own unintentional ways, represent three different eras in abortion law. Abortion was forbidden, then available, and now constrained.
Criminal Bans on Abortion
In the era immediately prior to the Supreme Court’s 1973 decision in Roe v. Wade, abortion was largely criminalized by American states. There was no relevant federal law, nor any attempt to apply federal constitutional principles to bear on the validity of those state bans. Abortion was, like so many things, something over which states had free reign.
The Texas statute invalidated by Roe was typical of the era. It made it a crime to “procure an abortion” or to “attempt to procure one,” except when procured or attempted “by medical advice for the purpose of saving the life of the mother.” The term abortion was defined as the destruction of a fetus or embryo in the womb or the deliberate causing of a premature birth.
Criminal bans on abortion were not timeless. The Texas ban first appeared in 1854—and remained operative until Roe in 1973. But historically, the treatment of abortion has varied. Older civilizations were split—some clearly permitting and practicing abortion, some banning it. US common law—the received law from England at the time US colonies and then states were first formed—took the view that abortion was generally legal until the point of “quickening”—the first movement the mother could feel, which happens between 16 and 18 weeks in most pregnancies. The quickening standard was displaced in the middle of the nineteenth century with the widespread passage of criminal bans that prohibited all abortions, but punished later ones more seriously than earlier ones. The only standard exception was for abortions that would save the mother’s life. A small number of jurisdictions also allowed for abortion when necessary to preserve the mother’s health. A few permitted “lawful” abortions, without clarifying what was meant by that term.
Regardless of the legal standard, abortions have always been relatively common. The criminalization drove rich women out of state or even the country, and poor women, like Penny in Dirty Dancing, to butchers in back alleys. The impact was worst for poor and minority women, who were most likely to be harmed by illegal abortions and inept providers. Eighty percent of deaths from illegal abortions in New York before Roe were black and Puerto Rican.
The Liberalization Trend and Roe v. Wade
In the years leading up to the Roe decision, however, there was a liberalization trend. In 1962, the American Law Institute, a think tank of sorts that proposes new laws for states to adopt, recommended that states loosen restrictions on abortion. Its proposal created a category of “justifiable abortion,” which would include terminations when necessary to save the health or life of the mother, when the child would be born with grave defects, or when the pregnancy resulted from rape, incest, or any other crime. Justifiable abortions could be performed only in a licensed hospital except in cases of emergency. And abortion had to be certified by two physicians that the requisite justification was present.
Between 1967 and 1972, almost a third of the states modernized their abortion laws to create at least a small category for legal abortion. Thirteen other states reformed their laws, to ban abortion in fewer circumstances. As Roe went to the Supreme Court, four states had repealed their abortion bans completely—New York, Hawaii, Alaska, and Washington—leaving in place only restrictions on timing and the requirement of a licensed physician. The New York law, adopted in 1970, defines a “justifiable abortional act” as any abortion necessary to preserve the woman’s life and any abortion performed before the 24th week of pregnancy. These new laws reflected the social movement for looser abortion laws, but the liberalization trend that was underway when Roe was adopted was far from complete.
Roe v. Wade was argued before the Supreme Court first in 1971, and then again in 1972. The Court issued its monumental ruling in January 1973. There were three sets of plaintiffs in the case who sued to challenge the Texas abortion statute mentioned earlier, which banned completed or attempted abortion unless necessary to save the woman’s life. Writing for the majority, Justice Blackmun declared that the Fourteenth Amendment’s Due Process Clause protected a woman’s right to terminate a pregnancy, at least up to a certain point. He developed the trimester framework, under which states could not regulate abortion during the first trimester; could regulate it only to preserve the mother’s health during the second; and could regulate or restrict it completely, unless abortion was necessary to save the life or health of the woman, during the third trimester. The state’s greater power in the third trimester arose from its interest in protecting fetal life, an interest that becomes compelling when the fetus reaches the point where it could survive outside the womb. This ruling had the effect of invalidating most abortion laws then on the books across the country.
Roe was not the end of the controversy over abortion, as opposition grew in its wake. The anti-abortion movement took many forms over the subsequent decades, which included violence, attacks on funding, and indirect attacks on providers and facilities that would make it practically impossible for women to access abortion. The Supreme Court heard a challenge to a set of restrictions in Pennsylvania in the early 1990s. In Planned Parenthood v. Casey, the Court reaffirmed the basic right in Roe, but restructured the framework for evaluating the constitutionality of state restrictions.
Under the standard announced in Casey in 1992, the state’s interest in protecting fetal life attaches at the outset, rather than only when the fetus reaches viability. Before viability, the state can regulate abortion as long as it does not impose an undue burden on a woman’s right to terminate a pregnancy. After viability, the state can restrict abortion entirely as long as it maintains an exception to preserve the life or health of the mother. Applying the new standard, the Court upheld provisions of the law mandating pre-abortion counseling and a waiting period, as well as a provision requiring parental consent for minors (with a judicial bypass option), but struck down a provision requiring married women to notify their husbands before obtaining an abortion.
For a time, Casey put to rest the longstanding question whether the Court would overrule Roe. It had the chance—and the potential votes to do so—but it didn’t. But while it vindicated the basic constitutional right to seek an abortion, the Casey ruling drove a weakening wedge into it. It threw the door open to new restrictions on abortion that would make abortion more and more difficult to access. The Court would go on to revisit several aspects of abortion law, but has not again gone back to the basic question of whether the constitutional right exists. But with the recent shift in the composition of the Court, reproductive rights advocates (and others) fear that Roe may, once again, be on the chopping block.
Making Plans for a Future Without Roe
We may be on the precipice of a return to the forbidden era, as the Supreme Court has been shifted rightward with the confirmation of Justices Neil Gorsuch and Brett Kavanaugh. As many commentators have analyzed and explained, the right to terminate a pre-viability pregnancy is under threat.
Without a crystal ball, it is impossible to predict the future of Roe. The Supreme Court may overrule it altogether. It may overrule other precedents that might allow states greater freedom to restrict abortion providers (a possibility discussed here). It may leave the key precedents intact.
Several anti-abortion states have been busy passing clearly unconstitutional abortion bills in the hopes of queuing up a direct challenge to Roe. Others have passed laws banning abortion that will take effect immediately if Roe is overturned.
With the Reproductive Health Act, New York has done just the opposite. The legislature drafted and passed a law that will clearly preserve a woman’s right to terminate a pregnancy in the event the constitutional right disappears. But even if Roe survives, the new law will eliminate disparities between the federal constitutional standard and New York’s statutory standard that have led some providers to refuse to perform abortions for fear that they might end up in trouble.
Recall that New York was one of the states to legalize abortion before the Roe v. Wade ruling. The law passed in 1970s remained valid until replaced by the Reproductive Health Act on January 22, 2019. The new law has three key components. First, it takes abortion law out of the criminal code and places it among public health laws. Second, it expands the type of providers who can perform abortions—from only licensed physicians to any licensed, certified, or authorized health care practitioner for whom abortion is within the scope of their practice. Third, although existing state law permits abortions without restriction before the 24th week of pregnancy, the new law permits them later if necessary to protect a woman’s health or in the case of a non-viable fetus. The law will both shore up abortion rights that might lose federal protection and expand access in some cases.
Unless and until the Supreme Court overrules or curtails Roe, the new law in New York will operate mostly at the margins—giving providers reassurance that they can perform abortions without fear of criminal punishment. A recent article in the New Yorker tells the story of one case in which the 24-week ban, arguably inconsistent with the Roe/Casey standard, resulted in an unnecessary struggle for a woman seeking to terminate a non-viable pregnancy. Despite images painted by the anti-abortion movement, almost all abortions occur in the first trimester—before fourteen weeks of pregnancy. And almost ninety-nine percent are performed before twenty-one weeks. But when a later abortion is necessary, even a liberal law like New York’s can make things difficult and dangerous.
In broad brush, Roe moved us from a world of illegal, dangerous abortion, to one of legal, safer abortion. But in the forty years since Roe, there has been a steady, and in some periods, frenzied anti-abortion movement that has sought to restrict women’s access to abortion. This movement has had a profound influence on state legislatures, which have moved time and time again to impose restrictions on access to abortion—playing chicken with the US Supreme Court and its commitment to preserving a woman’s right to choose. The Court has slowly watered down the protection it announced in Roe, upholding state restrictions on particular methods of abortion, as well as state requirements of mandatory ultrasounds and counseling, waiting periods, consent by a parent for a minor seeking an abortion. Meanwhile, it has upheld Congress’s defunding of abortion. Together, these inroads into the right of abortion have disproportionately stripped poor women of access to abortion. These are women who cannot afford the abortions themselves, let alone when accompanied by mandatory ultrasounds, counseling or other prerequisites; nor the extra money to cover travel, nights in a hotel room, or the many other costs imposed by state-imposed obstacles to abortion.
In passing the Reproductive Health Act, the New York has shown its commitment to women and their right to exercise control over reproduction. It also passed two bills the same day that are important, but got less attention. The Comprehensive Contraception Coverage Act requires New York health insurers to provide prescription contraception at no cost to the patient, a feature of the Affordable Care Act regulations that has been curtailed in the name of religious freedom and that Trump has attempted to withdraw altogether. Another bill prohibits employers from discriminating against an employee because of a reproductive health decision. Together, these three bills guarantee women that women in New York will not be thrust back five decades at the whim of the Supreme Court.