Suit Argues Expansive New York Abortion Law Is Unconstitutional

Law backed by Cuomo and Biden fails to protect women, suit alleges

Gov. Andrew Cuomo (D., N.Y.) / Getty Images
January 14, 2021

Five women are taking New York governor Andrew Cuomo (D.) to court over one of the most expansive abortion laws in the nation.

The lawsuit seeks to overturn the 2019 Reproductive Health Act (RHA), which legalized abortion for any reason up until 24 weeks of pregnancy and legalized abortion past 24 weeks if the "health" of the mother is at risk or if the fetus is not "viable." It also removed language from state law that listed killing "an unborn child with which a female has been pregnant for more than twenty-four weeks" under the definition of homicide.

Christen Civiletto, one of the attorneys representing the plaintiffs, said in a phone interview that the law puts pregnant women in danger.

"The Reproductive Health Act eliminated all criminal penalties for the killing of an unborn child, so that means there's no separate homicide charge for the murder of a wanted, near-term baby," Civiletto said. "It deprives [women] of the ability to seek justice for a separate murder. And that's dehumanizing, to the women and to babies."

The RHA provides a model for what the future of abortion legislation could look like under Democratic administrations. Governor Cuomo advertised the law as codifying Roe v. Wade protections into law shortly after the Senate confirmed Justice Brett Kavanaugh to the Supreme Court. President-elect Joe Biden has vowed to codify Roe v. Wade when he takes office.

The lawsuit aims to declare the law unconstitutional both for its vague language—the law fails to define adequately what "health" of the mother entails—and for violating the legal rights of the unborn child. The lawsuit also argues that medical advances make the 24-week cutoff point for unrestricted abortion unjustifiable.

"Recent advances in medical understanding have significantly enhanced our understanding of fetal development and have established that unborn children are capable of surviving outside the mother's womb as early as 21-22 weeks gestation," the suit says.

Multiple testimonies of women who experienced domestic violence and threats to their pregnancies are included in the lawsuit. Their stories are used to illustrate the ways in which, under the act, pregnant women would have limited legal recourses if their babies died under violent circumstances.

"This case isn't necessarily about abortion itself. It's about this incentivized violence," Civiletto said. "The Reproductive Health Act basically says your unborn child doesn't matter from a legal or a justice standpoint, it's not a human being."

Rep. Nicole Malliotakis (R., N.Y.), who served as a New York state assemblywoman when the RHA was passed, praised the effort to overturn the law.

"I applaud these brave women for standing up against the Reproductive Health Act, a radical policy that allows abortions to take place up until the moment of birth, removes requirements that protect women during abortion procedures, and eliminates criminal penalties that protect victims of domestic violence," she told the Washington Free Beacon.

Malliotakis criticized Cuomo for misleading the public about the nature of the act before its passage. She argued that the bill went further than just codifying Roe into law.

Prior to the law's passage, New York had one of the highest abortion rates in the nation. In 2017, more than 105,000 abortions were performed in the state, accounting for more than 10 percent of abortions performed nationwide, according to the Guttmacher Institute, a pro-abortion organization. The institute has also found that slightly more than 1 percent of abortions are performed after 20 weeks, meaning that hundreds to thousands of operations were affected by the law.

Governor Cuomo's office did not respond to a request for comment.