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New York Prohibits Most Late-Term Abortions — But That Might Change Soon

By Nicole Levy | December 14, 2016 5:12pm | Updated on January 9, 2017 3:37pm
 Kelly's twin pregnancy was progressing along without a hitch until her doctors suspected a genetic abnormality on the cusp of her third trimester.
Kelly's twin pregnancy was progressing along without a hitch until her doctors suspected a genetic abnormality on the cusp of her third trimester.
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NEW YORK CITY — President-elect Donald Trump stated in November his commitment to appointing Supreme Court justices who would overturn Roe v. Wade, the 1973 ruling that legalized abortion nationally. "If it ever were overturned, it would go back to the states,” he told "60 Minutes."

So what effect would a repeal of Roe v. Wade have on a woman's right to an abortion in New York?

Effectively, none. 

In 1970, the Empire State legalized all abortions through the 24th week of pregnancy, the point after which a fetus can potentially survive outside of the womb. Abortions after 24 weeks were also permitted if a woman’s doctor deemed her life to be at risk.

Years later, Roe v. Wade brought similar protection to women and doctors nationwide, and New York's law hasn't changed in the four decades since. Today, women who want late-term abortions still sometimes leave the state to find presently surer protections elsewhere. With Roe v. Wade endangered and a swell of state abortion restrictions around the country, local Democratic lawmakers say that now is the time to update state law.

Consider the story of Kelly, 43, who anticipated delivering one healthy boy and one healthy girl at New-York-Presbyterian/Weill Cornell Medical Center in December.

This fall doctors gave the first-time expectant mother a scary diagnosis: excess amniotic fluid was swelling her uterus, putting both twins at an increased risk of premature birth. The excess fluid also signaled a genetic abnormality in one fetus that would likely result in severe physical and neurological disabilities. (Kelly, whose name has been changed to protect her anonymity, declined to disclose the specific condition.)

The diagnoses came less than two months before her due date. "It’s almost like a blessing that we didn’t have weeks and weeks and weeks to agonize," said Kelly. She and her husband decided to go to a Maryland clinic and terminate the female fetus. Their son was born in late November.

“In New York state, we’re telling women that as long as there isn’t any threat to their life by remaining pregnant, we can’t take any steps to end their pregnancy,” said Dr. Stephen Chasen, a colleague of Kelly's physician at Weill Cornell Medicine who specializes in diagnosing fetal abnormalities and managing high-risk pregnancies.  

“At the time in 1970, [the New York abortion statute] stood for something progressive,” said Chasen, “but obviously that’s no longer the case.”

There have been several attempts to update the state's abortion law over the years.

In 2013, Gov. Andrew Cuomo put forward the Women’s Equality Act, a package of 10 bills that included one codifying the protections of Roe v. Wade into state law.

While Albany lawmakers passed nine of the provisions in 2015, the one regarding abortion did not pass.

In March 2015, Assembly member Deborah Glick and state Sen. Andrea Stewart-Cousins sponsored the Reproductive Services Act, which has passed the Assembly twice and stalled in the Republican-controlled Senate.

“I don’t think it’s going to pass," said Barbara Meara, chairman of the anti-abortion group New York State Right to Life, "but you never know in New York State.”

The bill would seem to reflect recent support for abortion among New Yorkers.

A 2014 poll of registered New York voters, commissioned by the National Institute for Reproductive Health but independently conducted, found that 78 percent of respondents supported Roe v. Wade and 77 percent supported the abortion-specific proposal in Cuomo’s Women's Equality Act.

With two 2016 races still undecided, the Senate’s political majority hangs in the balance. 

“We have a New York State Senate that will likely be majority anti-choice," said Andrea Miller, president of the pro-abortion National Institute for Reproductive Health.

But Glick is calling on Cuomo to broker some kind of arrangement with factions within the Senate to bring the Reproductive Services Act to a vote.

"The buck stops with him," she said.

A Cuomo spokesperson described the governor as a "staunch supporter" of Glick's bill.

“The Governor… will continue to work with all partners to safeguard women’s reproductive rights and ensure access to quality medical care,” spokeswoman Abbey Fashouer said in a statement.

"Now is the time to bring to bear any political capital that he can," Miller said.

Chasen said doctors at New-York-Presbyterian/Weill Cornell see an average of only three or four pregnant women a year who might consider an abortion after 24 weeks.

He ticked off a range of circumstances that could lead to a woman choosing a late-term abortion: 

Less care early on: A woman may not have received prenatal care that would have identified a fetal abnormality. Chasen says that this sometimes strikes women of low-income backgrounds who may not have as many resources available. 

Late complications: Some fetal conditions — such as abnormal brain development, stunted growth, irregular heart rhythms, and rare tumors of the heart, kidney, liver and chest — only manifest themselves after 24 weeks.  

Health surprises for the mother: Life-threatening medical diagnoses can come at any time. Some, like cancer, have to await treatment until after delivery.

If a woman faces these or other challenging circumstances, the serious physical and mental complications that can arise during the last trimester can make them worse:

Physical symptoms: Restricted breathing, liver damage and heart disease are all possibilities.

Depression: During the last months of an unwanted pregnancy, serious depression is a possibility, particularly if a fetus will likely be born with severe disabilities and may live only briefly.

Premature delivery: Meara, the pro-life supporter, suggests women who fear for their own health if they go to term consider delivering before 37 weeks of pregnancy. In such cases, a preemie is still at risk of dying even in a neonatal intensive care facility. (The Centers for Disease Control and Prevention attributed about one-third of infant deaths to premature birth-related causes in 2013.) 

“The most ardently pro-choice among us don’t really want to get prosecuted,” Chasen said. 

New York law classifies an “abortion in the first degree” — a late-term abortion when there is no life-threatening maternal condition — as a class D felony. The corresponding prison sentence is between one and seven years. (A pregnant woman who tries to terminate her own pregnancy faces a “self-abortion in the first degree” a class A misdemeanor. "Self-abortion" comes with a maximum prison sentence of one year and no more than $1,000 in fines.)

The charges are rarely applied in New York state, but the fear of prosecution lingers over medical institutions.

Even after State Attorney General Eric Schneiderman released an opinion in September saying that late-term abortions performed when the fetus isn’t viable or a mother’s health is at stake should be interpreted as lawful in New York, hospital administrations have shied away from allowing doctors to perform them.

“This isn’t the kind of publicity they want,” Chasen said. “They don’t want to cross a line, they don’t really want to approach the line. So sometimes we’ve had cases where things drag along in front of an ethics committee for days or weeks before someone says, ‘Yeah, you need to do the right thing for this patient.’”

As a result, experts say, many patients awaiting approval for late-term abortions may choose to proceed with an abortion at an out-of-state clinic — assuming they can afford travel and medical expenses and can take time away from their jobs. 

That's the route Kelly took.

The drive from Manhattan to the clinic in Maryland, which is one of the few in the country that will perform third-trimester abortions, took Kelly and her husband seven hours.

The journey was longer than an average drive because travel is perilous for a pregnant woman in her third trimester. It can precipitate preterm birth and preeclampsia, a condition characterized by high blood pressure and organ damage.

Also adding to the stress of the journey was its purpose: ”Just the whole emotional part of having to pack your bag and know what you’re driving eight hours to end up doing is horrific," Kelly said.

The Maryland clinic itself did little to reassure her, with its less-than state-of-the-art ultrasound technology, a solitary practitioner, and an anti-abortion protester stationed outside. (Such practices could be shuttered if Roe v. Wade is overturned, so they provide no guaranteed safety net in the future.) 

"I closed my ears, but there was a woman out front who was like, ‘Doctors aren’t always right,'" said Kelly. 

She elected to have an abortion procedure that injected medication directly into the heart of one fetus. She said she'd never been as scared as she was driving back home after her abortion, both twins still in-utero. Her fear: that she would go into early labor on the road.

The anxious couple's first stop back in New York, at 2:30 a.m., was New-York-Presbyterian/Weill Cornell, where they could check on their condition of the still-viable fetus before returning home around 4 a.m.

"It could have ended tragically if something had happened en route to Maryland or back," Chasen recalled.

”The fact is that Trump can’t flip the switch or snap his fingers on day one or even day 100 to immediately overturn Roe," Miller said.

In the meantime, she said it will be increasingly important for New York, "to provide safe sanction and sanctuary, to recognize that we have principles and values that are many decades old that we need to be leaning into."

For the years between 1970, when Gov. Nelson Rockefeller signed a bill allowing abortion up to 24 weeks, and the Roe v. Wade decision in 1973, the state welcomed an influx of hundreds of thousands of women seeking the procedure.

In a post Roe-v.-Wade world where each state must determine its own abortion law, New York could become a destination again for women willing to travel for a procedure. Kelly said that the morality or legality of abortion wasn't an issue she really wrestled with until her diagnosis and her journey across state lines.

"It never was an issue that I felt close to, " she said. "I think that’s probably [true for] a lot of people —until it happens to you."