By Jessica Bakeman, Albany Bureau
ALBANY -- Pro-life groups and women's rights activists in New York are battling over the controversial Reproductive Health Act, which critics say would expand abortion rights and supporters argue would largely codify existing federal laws.
Abortion opponents are pushing back against Gov. Andrew Cuomo's pledge this year to pass the act and warning that it would be unnecessary. The measure also faces an uncertain future in the state Senate, which is partially controlled by Republicans.
"The abortion expansion bill is uncompromising in its terms and extremely sweeping in scope," the state Catholic Conference wrote in a memo to lawmakers last month. "Rather than voting on a bill that will increase the tragedy of abortion, we urge policy makers to look at constructive ways to reduce abortion and truly make abortion 'rare.'"
Women's rights activists cheered when Cuomo included the bill in a gender equality package during his State of the State address Jan. 9. They refuted claims that it would increase abortions and allow unqualified medical professionals to perform them, as well as punish religious hospitals that refuse to provide them.
"The law would not advance, or remove, any provisions not already in current federal law or legal precedent," Mylan Denerstein, counsel to the governor, wrote in an op-ed piece Wednesday.
Denerstein and other supporters, including the bill's sponsor, Senate Democratic Leader Andrea Stewart-Cousins, D-Yonkers, have argued that state laws regarding abortion are out of date.
New York passed a law allowing abortion under certain circumstances in 1970, three years before the Supreme Court decision Roe v. Wade legalized abortion on a national level. Supporters of the Reproductive Health Act said the state law is needed to ensure abortion rights in New York if the federal law was overturned.
"If the Supreme Court were to ever reverse the now long-established precedent, a woman in New York would consequently lose many of her current rights that relate to her own reproductive health and freedom," Denerstein wrote.
The Reproductive Health Act -- called "Cuomo's Abortion Expansion Act" by opponents -- at the very least updates New York's laws so they are constitutional and enforceable based on Roe v. Wade, supporters said.
Current state law is more restrictive than the federal legal precedent. In New York, the law prohibits abortion after 24 weeks of pregnancy, unless it is necessary to preserve the pregnant woman's life.
Roe v. Wade allows abortions until the fetus is viable or at any time if the woman's health or life is in danger. Viability is defined, according to federal law, as when the fetus is at least 24 weeks and is reasonably likely to survive outside the womb as determined by a physician.
Changing state law to reflect Roe v. Wade would explicitly allow abortions after 24 weeks but before "viability" and include the "health" of the mother as an acceptable reason for late-term abortions. Pro-life groups consider the changes as an expansion of the existing law.
An exception that legalizes abortions after the fetus is viable to preserve a woman's health, rather than her life, "will allow more third-trimester abortions in New York State, a policy which the public strongly disapproves," the Catholic group wrote in its memo. "This ignores the state's legitimate interest in protecting the lives of fully formed children in the womb."
Supporters point to Roe vs. Wade, contending that the federal law has allowed New York women to have late-term abortions for health reasons since 1973. Nothing will change, they said.
"This is legislation that would codify that the choices that women make during these times are personal choices," Stewart-Cousins said. "They're certainly not frivolous choices, but they should be choices that are made between the woman and her doctor."
Opponents also question the Reproductive Health Act's language regarding who can perform abortions, saying it is too broad.
The act does not specify that a medical doctor or physician must perform an abortion; rather, it allows "a qualified, licensed health care practitioner, acting within the scope of his or her practices" to conduct the procedure.
After the fetus is determined to be viable, however, a "physician" would perform the abortion, according to the bill.
Current state law requires "physicians" perform abortions, and after 20 weeks, a second physician is required to be present in case the procedure results in a live birth.
The Reproductive Health Act would require the second doctor only after the fetus is considered viable. It would also provide an exemption if finding another doctor to attend the procedure would take too much time and endanger the life of the patient.
"Women deserve the highest standard of medical care available, and we foresee that the undefined licensing qualifications within the bill have the potential to attract practitioners whose only motivation is profit," a woman's group that opposes abortion, Feminists Choosing Life of New York, wrote in a letter to state senators Thursday.
Tracey Brooks, CEO of the state's Family Planning Advocates, an advocacy group that represents Planned Parenthood, said the change simply updates state law to follow current medical standards.
In addition to doctors, the bill would allow physician's assistants, she said, and possibly others, like nurse practitioners or licensed midwives, to perform abortions, so long as they're deemed qualified by the appropriate licensing authority.
"Opponents are calling into question the medical boards who regulate medical providers -- the experts in delivering health care," Brooks said. "And you have politicians, religious leaders and lay people who aren't medical experts that think that they should be (the ones) who make that decision?"
Critics worry that the Reproductive Health Act would penalize or shut down Catholic hospitals or other health-care institutions that are morally opposed to abortion.
The bill states: "Nothing in this article shall be construed to conflict with any applicable state or federal law or regulation permitting a health care provider to refrain from providing abortions due to the provider's religious or moral beliefs."
The bill also says the "state shall not discriminate against" woman's abortion rights.
The Catholic Conference's reading of the bill is that it protects individuals, not institutions, and would allow the state to require any hospital licensed and funded by the state to perform abortions.
In a statement Jan. 25, the state Conservative Party said "reasonable people" must vote down this "radical" proposal.
"Is the woman who says 'it's my body, it's my choice' so afraid of seeing the precious life she is carrying that she demands that ... religious hospitals have to go against their core beliefs?" the party said.
Brooks said no interpretation of the bill could trump state and federal protections that extend to individuals and institutions, regardless of whether they receive state funding.
In addition to codifying women's abortion rights, the bill would remove abortion from the penal code and put it into the state's health laws. As it stands, abortion is referred to in state law only as a crime, with exemptions for "justifiable abortion."
But removing abortion from penal law does not only decriminalize it when a woman chooses to lawfully end a pregnancy. It removes abortion from provisions that would charge a violent criminal who attacks a pregnant woman, causing her to miscarry.
Sponsors argue in the bill that other laws protect pregnant women against assault. A woman could charge the perpetrator with causing "serious physical injury," should the violence result in miscarriage, for example.
The bill's summary says medical professionals can be held accountable for botched or unauthorized abortions.
"While the bill repeals penal-law provisions pertaining to abortion, sufficient protections still exist to address abortions which are performed by health-care practitioners under circumstances that constitute unprofessional, tortuous or criminal conduct," the bill said. "This ensures that abortion is treated like any other medical procedure."
Repealing New York's penal laws regarding abortion goes further than updating state statutes, argued Ed Mechmann, director of the safe environment program for the Catholic Archdiocese of New York, in a blog on the archdiocese's website.
"No federal law has virtually eliminated basic criminal penalties for involuntary or back-alley abortions," Mechmann wrote. "Yet the governor's bill does all that, and more."
The state's criminal law regarding abortion also establishes misdemeanors for women who consent to an unlawful abortion or personally terminate the pregnancy unlawfully. Now, that law would only apply to abortions taking place after 24 weeks that are not to preserve the mother's health and life.
Brooks said state laws that would punish women for abortions are not currently enforced. Women who seek abortions after 24 weeks are typically women who planned to deliver but experience a medical complication.
The Reproductive Health Act would repeal the state laws that could be used to charge women for unlawful abortions.
"We don't want women charged," Stewart-Cousins said. "We don't want their physicians charged. We want abortion, as everyone says, to be certainly rare, legal and safe. And it's not about criminalizing either the physician or the woman."
It is uncertain whether the Reproductive Health Act will pass the state Senate, and even a resolution last month to mark the 40th anniversary of Roe vs. Wade drew a rebuke from Senate leaders. Senate power is shared by a coalition of Democrats and Republicans.
Independent Democratic Conference Leader Jeffrey Klein, D-Bronx, has publicly supported the act and spoke in favor of it at a rally last month. But Senate Republican Leader Dean Skelos, R-Nassau County, who shares control of the chamber with Klein, called it an expansion of "partial-birth abortion."
"The bottom line is in New York state, abortion is legal," Skelos told reporters last Tuesday. "Nobody in New York state, or very few, believe the laws will be changed and abortion will be made illegal in this state."
The Senate resolution last month on Roe vs. Wade showed how divisive the issue is in the chamber. Senate leadership ignored the resolution by Sen. Liz Krueger, D-Manhattan, arguing later that it broke the chamber's guidelines by representing a particular ideology.
"Huh? Commemorating Roe v. Wade isn't endorsing a political party platform, it's recognizing and commemorating an historical event and settled law," Krueger said in a statement. "Women's health and equality are not and should not be partisan issues."