After 46 Years, New York State Is Giving Women the Abortion Protections of Roe v. Wade

Today, on the 46th anniversary of Roe v. Wade , the landmark Supreme Court case that established the right to abortion, New York lawmakers are poised to codify those rights in state law. It’s an effort that’s been at least a decade in the making, and was made more pressing by the election of Donald Trump, who pledged to appoint Supreme Court Justices who’d overturn Roe and got two Justices confirmed who were approved by anti-choice groups.

Some people might be surprised to learn that New York, one of the first states to decriminalize abortion, does not offer the same protections afforded by Roe. New York’s law, passed in 1970, removed a criminal ban on abortions performed before 24 weeks (roughly when a fetus is considered viable outside the womb), or after 24 weeks if a woman’s life was in danger. But three years later, Roe established that states couldn’t prohibit abortion at any point during pregnancy if a fetus wasn’t viable, or when a woman’s health or life was at risk.

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This difference in regulations means that women in New York often are unable to get abortion care if the pregnancy threatens their health (not their life) or if they learn late in their pregnancy that the fetus isn’t viable.

Since abortion is still in New York’s criminal code, doctors who perform abortions after 24 weeks for any reason other than to save the mother’s life—the only exception written in state law—can be prosecuted as criminals. So New York doctors don’t provide this care, and women either spend significant amounts of money to travel to one of the three states that will accept out-of-state patients for later abortions, or they have to continue the pregnancy against their will.

The bill being voted on today, the Reproductive Health Act (RHA), would amend state law to bring abortion regulations in line with Roe and move the procedure from the state’s criminal code to the public health code, effective immediately. The RHA was first introduced in 2007 and has passed the state assembly multiple times, but has never received even a hearing in the state senate, which has been under Republican control for a decade. However, Democrats took control of the state senate in November by winning eight seats formerly held by Republicans, and on January 7, Governor Andrew Cuomo announced that he expected to sign the RHA into law within the first 30 days of the legislative session. The RHA is expected to pass both chambers today.

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Andrea Miller, president of the National Institute for Reproductive Health and NIRH Action Fund, says she’s pleased to see the “clear, rallying cry” from Albany leadership that passing the RHA is a priority for the first 30 days of the session. Still, despite the multiseat senate majority, her group launched a $500,000 campaign in December to push for the law’s passage; the effort includes digital ads, TV ads across the state, and billboards around the capitol. “We take nothing for granted,” she says.

Part of the urgency is that advocates don’t want the bill to linger on a long list of to-dos now that state Democrats are in power, and as there are several abortion cases moving toward the Supreme Court. So far today it looks like such stagnation won’t be the case.

“The fact is that there have been so many critical issues that have been stymied for so many years here in New York state because of the recalcitrance of the senate majority conference,” Miller says, adding, “We know that the bottom line is there’s urgency and there are real, ongoing consequences of having outdated abortion laws on the books. This is not just symbolism, this is about real people’s lives.” Though, even under the RHA, there are provisions that reproductive advocates feel are too restrictive.

The RHA is the first step to ensuring reproductive rights for women in New York, but Governor Cuomo also announced on January 7 that he wants to pass a constitutional amendment that would permanently and explicitly guarantee the right to choose. To make an amendment, a bill has to pass both chambers in two different sessions and then be approved by voters in a statewide referendum. Miller says that, in theory, if you have the votes for the RHA, then you could get a constitutional amendment passed.

The state legislature will also be voting today on the Comprehensive Contraception Care Act (CCCA), which would codify into state law the Affordable Care Act rule which mandates that insurance must cover birth control as prescribed by a doctor with no copays or deductibles, effective January 1, 2020. (The Obama-era rule is also on the chopping block under Trump.) It goes even further than the ACA by requiring insurance coverage of vasectomy and allowing 12 months of birth control to be dispensed at once, Miller says. Cuomo said at a January 7 event that he would not sign off on the state’s budget unless both the RHA and CCCA had passed.

This post will be updated as the bills move through both the assembly and state senate and, if passed, are sent to the Governor for his signature or veto. Here are the steps required for the bills to become law: