Brett Kavanaugh, a D.C. Circuit Court judge who worked in George W. Bush administration, was officially nominated to the U.S. Supreme Court by President Donald Trump on Monday evening, to the consternation of many on the left who fear that the confirmation of another conservative to the court will threaten abortion rights established nationwide in the landmark 1973 Roe v. Wade ruling.
Even before Kavanaugh’s selection was announced, Gov. Andrew Cuomo – aware that any pick of Trump’s would likely favor overturning Roe – took public steps to further protect abortion rights in the state, including issuing an executive order expanding regulations requiring health insurers to cover abortions and contraception.
Some of the governor’s progressive critics contend that, despite his repeated calls in the past to change state law to mirror Roe, he has failed to force the issue through the state Senate, including this year, when it once again fell by the wayside in his budget negotiations with the Legislature.
So what will New York state abortion law be if Kavanaugh is confirmed by the U.S. Senate – and the Supreme Court erodes or even overturns Roe v. Wade?
Abortion was legalized in New York in 1970, three years before the Roe v. Wade ruling, providing the broadest access to legal abortion in the country at the time. The law was passed during the administration of Nelson Rockefeller, a Republican, and with Republican majorities in both houses of the Legislature. Abortion rights were codified in New York’s penal law, making it legal for a woman to have an abortion within the first 24 weeks of her presidency, or, with the consent of a licensed doctor, to terminate her pregnancy after 24 weeks if her life is endangered. Conducting an abortion after 24 weeks when a woman’s life is not threatened is a felony, while a self-abortion after 24 weeks is a misdemeanor.
If Roe v. Wade were fully overturned, this 1970 law legalizing abortion would still be on the books. However, critics argue that it is out of date, as it restricts the time frame in which women can terminate a pregnancy and only allows a late-term abortion if a woman’s life is at risk. The Roe v. Wade decision allows the “life and health” of a woman to be considered when a physician decides whether to perform a late-term abortion. Another ruling handed down on the same day, Doe v. Bolton, defined health to include “all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the wellbeing of the patient.”
The Reproductive Health Act, which has been reupped in the state Legislature for years, would remove abortion law from the state penal law, and add it to public health law. It would also expand abortion rights to match those set in place by Roe v. Wade. The bill passed in the Assembly this year, but failed to pass the Republican-controlled Senate.
Even if Roe is not overturned, a conservative court could uphold restrictive abortion measures passed in individual states, thereby functionally blocking abortion in large swaths of the country. Democrats in New York, including Cuomo, are interested in codifying the rights outlined by Roe v. Wade into state law, in case of any court ruling that would abolish legal abortions throughout the country or make it more difficult. On Monday, Cuomo issued an executive order to protect abortion rights in the state, which was somewhat redundant, as it upholds regulations already in force. Cuomo has previously used executive orders to expand reproductive health care access, such as an when he signed an order on Jan. 21, 2017, the day after Trump’s inauguration, directing health insurers to provide coverage for abortion and contraceptive drugs. The latest executive order signed on Monday did expand the regulations, and allows coverage for over-the-counter emergency contraceptives.
This week, Cuomo called on the Senate to reconvene to pass the RHA, even though he has the ability to call a special session of the Legislature. Cuomo also said on Monday that he would target Republican senators who oppose the RHA by name during election season.
The RHA has come up for a vote in the Legislature in previous years, and similar provisions were included in the 2014 Women’s Equality Act proposed by Cuomo. This aspect of the legislation proved a sticking point for Republicans and it was removed to allow the other portions of the bill to pass in the Senate. Although Democrats had a numerical majority in the Senate, a group of breakaway Democrats had formed the Independent Democratic Conference in 2011, giving Republicans a functional majority and allowing for codification of abortion rights to be blocked. Cuomo tacitly allowed this arrangement for years. In April 2018 – after the most recent budget was negotiated and passed – the IDC reunited with mainline Democrats.
State Sen. Jeff Klein, the former leader of the IDC, declared on Tuesday that he supports the RHA, despite the fact that he allowed for the arrangement that blocked its passage for years. He is currently facing a primary challenge from Alessandra Biaggi.