Given various events and issues related to pregnancy care, fertility care, and reproductive rights coming up in the wake of the recent Supreme Court of the United States (SCOTUS) decision on the Dobbs versus Jackson Women’s Health Organization abortion case, it’s worthwhile to explore some particular US states with respect to reproductive care. As you may know from reading The Pulse, the Dobbs decision involved a Mississippi law prohibiting abortions beyond a gestational age of 15 weeks. While six justices voted to uphold the Mississippi law (and three voted against it), five of those six justices also voted to overturn the Roe V Wade decision of 1973. This presents a major obstacle for reproductive rights, particularly the right to abortion in numerous US states. Outside of pro-choice states, such rights already had been chiseled away over the course of the 49 years that had passed since the Roe v Wade decision. Notably, abortion rights took a nose dive in 1992, when the SCOTUS reviewed an abortion case called Planned Parenthood of Southeast Pennsylvania versus Casey. While moving through the US Third Circuit Court of Appeals on its way to the SCOTUS in the early 1990s, the Casey case met up with an appellate judge, the now SCOTUS Associate Justice, Samuel Alito, author of the majority Dobbs decision that recently overturned Roe v Wade. During that review in the Court of Appeals, however, Alito attempted to get his court to uphold a provision within the Pennsylvania law that would have required women seeking abortions to notify their husbands. Alito was voted down by the other two judges on the Third Circuit Court, but this episode tells us how extreme his ideas are. So let’s talk about the New York State.
In modern times, the State of New York has a tradition of being supportive of a diversity of opinions and lifestyles and of civil rights. This has included support for legal, safe termination of pregnancy, going back to the years prior to the 1973 Roe v Wade decision. Like neighboring Connecticut, New York had passed some laws against abortion back in the 19th century. As early as 1829, New York had made it a felony to perform an abortion after the point of quickening, although, prior to quickening, New York law had made abortion only a misdemeanor. This was typical of 19th century and even early 20th century state laws against abortion. Motivations for such laws include concerns for the mother derived from the fact that herbal agents that midwives obtained from apothecaries actually could be quite dangerous. They could be poisons, or they might induce an abortion with no guarantee that the products of conception would all come out, thus making infection possible. So even 19th century laws, such as the New York law, had some nuance.
Connecticut, meanwhile, had passed a similar law, even earlier than New York, in 1821. Connecticut had then expanded such anti-reproductive rights policy in 1860 and 1879, when legislation, co-authored by P. T. Barnum of circus fame, criminalized the prescription and use of contraception. The anti-contraception rule of Connecticut and of other states ended in 1965, when the SCOTUS decided the Griswold v. Connecticut case, establishing the right to contraception, at least among married couples.
In 1970, New York became one of just a handful of US states to allow elective abortion at the discretion of doctors. 1970 is the same year in which the Roe v Wade case began in Dallas, Texas, although it would take time to reach the SCOTUS and more time for SCOTUS to review the case, leading to the famous Roe v Wade decision in 1973. Consequently, there was a period during which women from Connecticut and other states obtained abortions in New York. In fact, within 45 days of New York’s 1970 law going into effect, more than 100 Connecticut women crossed the border for legal abortions.
Today, in 2022, New York is a completely pro-choice state. The state governor, Kathy Hochul, has stated that New York will remain abortion-friendly, regardless of the new atmosphere that is emerging in the wake of the Dobbs decision. Medicaid pays for abortion care for New York residents and for undocumented women. Additionally, the state of New York extends health care coverage for women up to a year after the termination of pregnancy, and actually, also after the delivery of a newborn. So New York provides care, both for women who choose to end their pregnancies and for those who choose to give birth. On top of this, New York State has put into place non-extradition rules to protect women who travel from other states to obtain abortions in the event that they remain in New York and their own states attempt to prosecute them. Moreover, the non-extradition rules will protect abortion providers in New York whom anti-abortion states might target for providing abortions to those who travel to New York for abortion care.
We chose New York for today’s discussion to illustrate the post-Dobbs situation of a strongly pro-choice state. There is little chance that New York itself would end abortion rights, but there is one situation that would threaten abortion rights, even in New York and in other pro-choice states. The situation is a federal ban on abortion, which is something that anti-abortion politicians would attempt to pass, should they take control of both houses of Congress and the US presidency.