Alexis Young: Welcome to New York and Abortion Law. I'm Alexis Young. For decades, reproductive healthcare has been a contentious political issue in the U.S., particularly when it comes to abortion. And when the Supreme Court overturned Roe v. Wade in 2022, the issue gained national attention. But what does the overturning of Roe v. Wade mean, and what do abortion laws look like at the state level in New York?
Let's take a look.
Roe v. Wade was a 1973 federal Supreme Court decision, which guaranteed the right to an abortion with certain stipulations. States were limited in the restrictions they could put on abortion because the procedures were constitutionally protected at the federal level. In the decades after Roe was enshrined, there was a constant struggle between settled federal law and states who wanted the ability to self-regulate.
In 1992, the Supreme Court heard Planned Parenthood v. Casey, in which they again upheld the right to an abortion, but also gave states more room to regulate it. In 2022, the Supreme Court heard Dobs v. Jackson Women's Health Organization, in which they examined a Mississippi law that placed certain time restrictions on abortion procedures. The court decided the Mississippi law is legal, while also overturning Roe v. Wade. The result of this is not a federal abortion ban, but rather a removal of the constitutional right to an abortion.
With Roe officially overturned, states now have more room to apply the law as they see fit, which has resulted in greater restrictions and bans across the country. But what does this mean for New York? What do abortion laws look like in our state?
The right to an abortion was legalized in New York in 1970 and then reinforced by the Reproductive Health Act, which passed in 2019. As it currently stands, people in New York have the right to an abortion within the first 24 weeks of pregnancy. Abortion procedures are allowed outside the 24-week window if the fetus is no longer viable or if the patient's health is at risk. This law applies to both New York residents and visitors.
So the protections are pretty straightforward. We have laws on the books that allow people to get abortion procedures with certain restrictions in place. But there's a growing movement to further advance these protections, which would be done by enshrining the Equal Rights Amendment into the state constitution.
The Equal Rights Amendment, or the ERA, would expand a variety of anti-discriminatory safeguards and constitutionally protect the right to an abortion in New York. But what's the difference between a right that is codified by law versus a right that is protected by the state constitution? We ask Katharine Bodde and Jenna Lauter, two legal experts from the New York Civil Liberties Union.
Jenna Lauter: When we say that the right to abortion is codified in state law, what we mean is that New York state's own statutes provide an alternative source of the right to an abortion. So New York law through state statute provides that abortion is legal here in New York state and not only legal but protected as well.
In order to amend the New York state constitution, you have to go through essentially a three-fold process. So the legislature has to pass the amendment into consecutive legislative sessions and then the amendment goes on the actual ballot before the people for a referendum vote.
Katharine Bodde: The constitution is more difficult to change. It is less subject to political wins and certainly, we have seen strong wins over the past decade or so.
AY: Supporters want abortion rights enshrined in the state constitution because it would then become more difficult to remove them. But opponents don't want that for the same reason.
Where does the ERA currently stand in the legal process?
JL: With respect to the ERA, that has now passed the legislature into consecutive sessions and the next step is for it to go before the people for a vote.
AY: If you are a New Yorker, you will be able to vote for or against the Equal Rights Amendment in the November 2024 election. So keep that in mind and check out the resources section if you want more.
So we know what the abortion situation is at the state level and we know where the Supreme Court stands on the issue. But is it possible for abortion to become illegal in New York, even though there are state laws saying otherwise? We ask Katharine Bodde from NYCLU.
KB: If Congress passed and the President signed a law that made abortion illegal across the state, then our rule of federalism, where federal law is supreme to state law, would govern.
AY: Federalism is when a territory is presided over by multiple levels of government. For example, Rochester, New York has its own city government which is subject to the laws of New York state's government which is subject to the laws of the U.S. government.
The top of the food chain has the final say with certain exceptions given by the U.S. Constitution. This is all to say a federal abortion ban or restriction would supersede state law. So at the risk of being too speculative, what would happen in that case?
JL: I think it's probably relatively safe to assume that whatever federal administration passes a nationwide abortion ban is also going to be fairly invested in enforcing that at the federal level. That said, there may be avenues for New York state to limit the extent to which it contributes to and supports prosecution under federal law.
So for instance, New York might under the scenario explore ways that it could prohibit law enforcement prosecutors from facilitating federal government efforts to arrest or investigate people who are involved in abortion care in New York and could direct state-level prosecutors not to seek prosecution under federal anti-abortion charges.
AY: There is also another asterisk to consider when looking at New York's abortion laws. The laws of other states. One state's laws do not supersede another's.
If Delaware decided that nobody could leave their house unless they were wearing a sparkly fanny pack, we in New York wouldn't have to worry about it unless we wanted to visit Delaware in which case you'd need to strap up.
So if someone was visiting New York to get abortion pills and were from a state where abortion is banned, they would need to go through the entire process and handle any aftercare or complications in New York before returning to their home state, in order to minimize the risk of litigation or prosecution.
There's a lot to take away from all this.
The establishment of federal and state laws and the way they are enforced is in a frequent state of flux. The legal battle around the right to an abortion so is no sign of slowing down. Though through the fog, there is one constant. The majority of American people have supported the right to an abortion in some capacity for decades.
Thanks for tapping in, and until next time, be well, be good, and stay informed.
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Watch the Episode
How Does Abortion Work in New York? | NY& Abortion Law
In this episode of NY& Abortion, Alexis Young provides an in-depth look at New York's abortion laws and how they compare to federal laws.
Katharine Bodde, Assistant Director, Policy, NYCLU
Jenna Lauter, Equal Justice Works Fellow, NYCLU