By Julie Bontems – Dec. 9, 2018
The midterm elections are through, and though Democrats can claim a solid victory in some respects, a uniform blue wave all but failed to materialize. In its minimal wake, then, Democrats and others are left taking a closer look at the results to glean their implications. Specifically, abortion and reproductive rights are taking on renewed importance given the mixed results, federally and at the state level. Recent moves in the New York state legislature on these issues illustrate one possible direction for states in light of these developments. The successful ballot initiatives in other states point to a stark alternative. Federal protections of abortion rights seem tenuous at best. This mix of policies is perhaps a mere representation of federalism at work, but it raises a question with direct, practical consequences for women all across the U.S.: what will become of abortion rights in the waning years of the Trump administration?
In New York State, the reelection of Governor Andrew Cuomo and the reclaimed state Senate promises a strengthened return to liberal-leaning policy. The first item on the agenda for January 2019? Passing the New York Reproductive Health Act (“RHA”) through the state legislature. The Act would update New York law to conform with federal protections of reproductive health, including access to abortion.
Pro-choice groups in the state have worked for several years to get the RHA through the state Senate. The Assembly has passed the Act multiple times, but each time the bill has been blocked by the historically more conservative state Senate. The Republican hold over the State Senate has been a fixture of the past half-century; the 2018 midterms saw the Democrats reclaim control of the body for only the third time in fifty years, and for the first time this decade.
As pointed out by Women’s Health and Reproductive Rights, a progressive working group under the #GetOrganizedBK banner, current state law was written in 1970, and the provisions dealing with abortion are housed under the penal code, not under the state’s health law. Under current state law, abortion is legal, but limited; late-term abortions are only permitted if the life of the mother is at risk. This is more restrictive than is presumably allowed by federal law, which centers largely around viability (thought to be around 24 weeks, although scientific advancements in this area put viability in question as an appropriate standard) and requires state law to meet the undue burden test, a heightened form of scrutiny for laws aimed at restricting abortion access.
Efforts in New York to update abortion law present an important question about the condition of state abortion law in 2018 given the Trump administration’s commitment to undermining federal protection of abortion rights. Although abortion has been legal in this country for a while, the right to choose is looking a bit worse for wear as of late. States with strong conservative contingencies have chipped away at abortion rights for years. Two of three ballot initiatives aimed at curtailing reproductive rights were successful in the recent midterms. In Alabama, a state constitutional amendment explicitly rejects the existence of a right to abortion or of a requirement to fund abortions. The amendment makes no mention of any of the usual exceptions for such measures, like incest, rape, or life of the mother. In West Virginia, the amendment was actually named “No Constitutional Right to Abortion Amendment.” It has a similar effect to the measure passed by Alabama voters.
The primary significance of these amendments is not their immediate effect, although they are considerable. Indeed, declaring an anti-abortion state policy is not truly destabilizing – nor all that surprising – especially for states like Alabama and West Virginia. Far more worrisome, on the other hand, is the effect of these policies were Roe v. Wade to be overturned, as the Supreme Court is now poised to do given the recent appointment of Justice Kavanaugh who has, to put it most charitably, an alarming record on women’s rights. Justice Gorsuch never ruled directly on abortion rights before his appointment but has offered a troubling glimpse into his potential treatment of such issues. Combined with the fact that this Court is likely to address reproductive health sooner rather than later, these state measures set up state legislatures to significantly scale back or ban abortion access in the event that Roe is overturned. These so-called “trigger” laws show not only the precarious position of reproductive rights in conservatively-led states; they say something about the interaction between federal political developments and state and local policy agendas.
For New York, the purpose of trigger laws themselves – to prepare in the event of a Roe reversal – calls attention to the dangers of leaving anti-abortion laws on the books. It may not be immediately clear why covering abortion under the penal code even matters in New York, a state which largely decriminalizes even late-term abortion. But this outdated law not only has ongoing consequences for New Yorkers who have in some cases traveled out of state to obtain abortions.
Proponents of the Reproductive Health Act, and of abortion rights generally, should take note of the broader political context and corresponding urgency of the issue. As described, federal protections are increasingly precarious, and, having never been that strong to begin with, allow states enough flexibility to severely restrict abortion rights in some areas. Importantly as well, abortion and reproductive health is an intersectional issue – women in general are affected, yes, but these anti-abortion laws have especially draconian effects on rural women, women of lower income, and women of color. These women are on average more likely to lack access to health care and will likely be hit hardest by a Roe reversal. In New York, the Reproductive Health Act would ensure these women have safe, legal access to reproductive health services, and if passed in conjunction with the proposed Comprehensive Contraception Coverage Act, would ensure that these women are less likely to need to seek an abortion – for health or other reasons – in the first place.
Democratic control of the state Senate is the exception, not the rule, and given the precarious status of federal abortion protections, the state legislature should seize the opportunity to pass the RHA, fast.
Julie Bontems is a J.D. Candidate, Class of 2019, at N.Y.U. School of Law.