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New York Is Forcing Women to Carry Doomed Pregnancies

Thanks to the state's outdated abortion laws.

Thanks to the state's outdated abortion laws.

Susan Rinkunas

Almost a year ago, Jezebel published a widely-read interview with a woman who'd had an abortion at 32 weeks. The New York City woman, who went by the name Elizabeth, explained the heartbreaking situation: She and her husband learned at 30 weeks that her fetus wouldn't be able to breathe outside the womb. If she was able to carry to term, the baby would choke to death shortly after birth. For a variety of medical reasons (including the fact that the woman had previously had brain surgery and was advised by her doctors that the pushing part of going into labor would be dangerous), her doctors suggested termination.

The couple was shocked to find out that abortions after 24 weeks are illegal in New York state, unless the pregnant woman's life is in danger. There are no exceptions in cases of rape, risk to the mother's health, or if the fetus is nonviable, like theirs was. The woman, who has now identified herself as Erika Christensen, had to fly to Colorado to get the care she and her husband decided on with their doctors.

The Supreme Court case Roe v. Wade affirmed women's right to have an abortion nationwide, but the ruling allows states to restrict or ban termination after fetal viability, which is generally accepted to be around 24 weeks of pregnancy. Another Supreme Court case in 1992, Planned Parenthood v. Casey, established that state restrictions could not impose an "undue burden" on accessing abortion within the state in cases where Roe exceptions stand, including in cases of women seeking to terminate a nonviable fetus. In New York, where abortion laws are actually still part of the penal code, rather than the health code, doctors who provide abortions after 24 weeks other than to save a woman's life could be prosecuted as criminals. So in not allowing terminations of nonviable pregnancies after 24 weeks, New York's state law was in conflict with federal law.

Legislators and activists have been pushing for New York lawmakers to address this problem for more than six years with a bill known as the Reproductive Health Act, or RHA, which would decriminalize abortions after 24 weeks by amending the state's laws to comply with federal laws. It would also codify Roe in the state were it to be struck down by the Supreme Court. To date, the RHA has never been brought to a vote in the New York senate. The RHA passed the New York State Assembly in January but it appears that the state senate will again ignore it. Christensen, who spoke to Tonic for our April story about abortion restrictions in the second trimester, has been publicly campaigning in favor of the RHA.

Women who have the resources to do so can travel out of state to get an abortion, points out Stephen Chasen, a maternal-fetal medicine specialist at Weill Cornell Medicine. "Some women don't have the resources and then they're in the position of having to stay pregnant and live with the knowledge that they're not going to have a baby to take home," Chasen told Tonic in the documentary above. "They are waiting for the fetus to die, or waiting to go into labor or, god forbid, waiting until they have some life-threatening complication. I can't fathom what that's like, and unfortunately I don't think the politicians that are making these decisions instead of doctors can fathom that."

Christensen's initial quote from the Colorado clinic was $25,000 to $30,000 for the procedure; she told us that both her mother and her husband's mother were thinking about what they could sell to help raise the money. "New York is creating a problem," Christensen's husband, Garin Marschall, told Tonic. "We were able to solve the problem for ourselves by borrowing money, finding a doctor, going to that doctor in Colorado, but it's important to note that many people cannot solve that problem."

The New York legislative session ends today. Women dressed as handmaids from Margaret Atwood's dystopian novel The Handmaid's Tale protested forced births at the state capitol building in Albany Monday, Tuesday, and Wednesday.

It appears that the RHA will not be brought to the senate floor for a vote today, meaning it will be tabled until September. How many more women will be forced to carry dangerous or nonviable pregnancies until the law is fixed?

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