“On Demand” Abortions: Protection for Women’s Rights or Expansion of Late-Term Abortions?

Blake Koloseike

Associate Editor

Loyola University Chicago School of Law, JD 2020

With the recent change of New York’s abortion law, legislators granted women the affirmative right to abortions under the state’s public-health law. Under the Reproductive Health Act, restrictions on abortion past twenty-four weeks are removed legalizing abortion up until the day of birth. This bill was passed on the 46th anniversary of the Roe v. Wade decision. The new bill comes as a reaction to the confirmation of conservative Supreme Court Justice Brett Kavanaugh, giving protection to women’s access to abortion if Roe v. Wade is overturned. Proving to be very controversial, the change has advocates and critics at odds with its potential future effects.

Advocates Applaud the New Law

The Reproductive Health Act was first introduced in 2006. However, it was blocked for consideration by the Republican-controlled state Senate. Since the Democrats won a majority in the Senate this past November, the Democrats now control the Assembly. On Tuesday, the Reproductive Health Act was passed. After signing the bill into law, Governor Andrew Cuomo said, “With the signing of this bill, we are sending a clear message that whatever happens in Washington, women in New York will always have the fundamental right to control their own body.” By taking abortion out of the criminal code, this bill puts women’s health into public health law, allowing not only doctors to perform abortions, but also physician assistants, nurse practitioners, and midwives to perform abortions. The previous law made doctors reluctant to provide abortions after twenty-four weeks when the mother’s life was in danger or the fetus was no longer viable due to the potential of criminal prosecution.

Advocates argue that allowing abortions to be performed after twenty-four weeks if the fetus is not viable or when necessary to protect the mother’s life is necessary to protect the health and safety of the mother. Additionally, allowing physicians other than doctors to provide abortions allows women in rural areas, who have limited access to doctors, more options. Advocates believe that this legislation is a victory for New Yorkers and believe that the legislation is progress for the state.

Critics Argue the Law is Too Expansive

In arguing before the state legislature, State Assembly Representative Nicole Malliotakis stated, “To be honest with the public and say that this bill does not simply codify Roe v. Wade…what this bill does is expand abortion up to birth and the third trimester.” Opponents believe that this will result in an increase in the number of abortions in the state. Further, opponents’ argue removing abortion from the criminal code means there would be no prosecution if a fetus died as a result of assault to the pregnant mother.

In addition, critics argue that the ambiguity of Reproductive Health Act is too broad. Specifically, that Act allows for termination of the pregnancy after 24 weeks if there is an absence of fetal viability, or if “the abortion is necessary to protect the patient’s life or health.” The ambiguity allows for abortion at any point during the pregnancy should the doctor deem the mother’s wellbeing is at risk. The physicians are asked to assess “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the wellbeing of the patient.” The terms are ambiguous and essentially allow for “on demand” abortion until birth. Opponents argue that the law should have defined what constitutes a threat to the woman’s health.

What This Means for Health Care Professionals

New York is a state with very few restrictions on abortion. The state does not have any major restrictions, such as waiting periods, mandated parental involvement, or limitations on publicly funded abortions. With the recently enacted Reproductive Health Act, there will be even fewer restrictions. Prior to this bill, a licensed physician was the only person able to perform an abortion. Now, however, nurse practitioners and physician assistants will be able to become licensed and certified by the state to perform abortions, assuming they are acting within the legal scope of their practice.

Furthermore, doctors will now be ultimately responsible for advising patients on whether or not to terminate a pregnancy. Unfortunately, doctors have been given very little guidance in how they should make this decision. Individual providers will maintain the right to refuse to provide abortion services, allowing religion-based organizations the right to remain in line with their beliefs.

Overall, this bill will protect women’s ability to choose the future of her pregnancy and will change the way in which health care professionals handle abortions. It will be interesting to see how this law will impact abortion laws when the Supreme Court decides whether or not to overturn Roe v. Wade.

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