Beyond Roe the State of Sexual and Reproductive Healthcare in New York State

Beyond Roe The State of Sexual and Reproductive Healthcare in New York State Florencia Feleder Katie Gowing Kaidy Mendez Vannessa Taylor Megan Weis January 2, 2019 1 ABOUT THE AUTHORS Florencia Feleder, Katie Gowing, Kaidy Mendez, Vannessa Taylor, and Megan Weis are research interns at the Rockefeller Institute of Government’s Center for Law & Policy Solutions. 2 Beyond Roe: The State of Sexual and Reproductive Healthcare in New York State Abortion is one of the most pressing issues in today’s political arena, especially in light of the election of President Donald Trump and the shifting ideological balance on the United States Supreme Court. During the final 2016 presidential debate, then- candidate Trump was asked if he wanted to see Roe v. Wade overturned. He responded, “If we put another two or perhaps three justices on [the Supreme Court], that’s really what’s going to be — that will happen.… I am putting pro-life justices on the court.”1 As a presidential candidate, Donald Trump made it clear he wanted to appoint justices who would overturn Roe v. Wade. In an interview with Bill O’Reilly, he went so far as to say that the “biggest way you can protect [life] is by electing me president.” Trump’s emphasis on pro-life justices proved to be especially important to win over conservative voters who were cautious of the untraditional candidate. Notably, a poll conducted by The Washington Post revealed that 26 percent of all Trump voters expressed the basis of their decision was the Supreme Court.2 Once President Trump was officially elected, widespread concern over the fate of Roe v. Wade proliferated. In New York, various elected officials raised alarms. New York Senator Kirsten Gillibrand stated that “We are on the brink of not having reproductive freedom in the country,” and framed the nomination of Brett Kavanaugh to the Supreme Court as the biggest threat to women’s rights in her lifetime.3 New York Governor Andrew Cuomo said that “rights are under attack in Washington,” referencing Roe v. Wade, and even proposing a state constitutional amendment to protect legal abortion, which garnered support from the New York Civil Liberties Union.4 3 Ultimately, if the Supreme Court overturns Roe v. Wade, the decision to legalize abortion would return to the states. In Republican-led states, lawmakers stand poised to implement sweeping bans on abortion, as in Ohio where lawmakers just approved a bill banning abortion after a fetal heartbeat is detected.5 However, it is unlikely that New York and other more progressive states will follow suit. The notion that Roe’s reversal will end abortion as we know it is therefore inaccurate, though there are problems policymakers must address. At the same time, although a federal right to an abortion was established by the Supreme Court, it has not been evenly or uniformly applied among the states — many states have been chipping away at Roe for decades, placing restrictions on when, where, and how abortions are provided, while others have opted to maintain broad access. To better understand what’s at stake in the current controversy over abortion rights, a more careful analysis of Roe’s legacy is needed. In this report, we analyze changes in the law since Roe v. Wade was decided, discuss their implications for women’s access to abortion, and draw attention to a wider set of issues surrounding women’s reproductive health. To gain a better understanding of New York’s reproductive landscape, we conducted interviews with local abortion providers, crisis pregnancy centers, political organizers, and government officials (see the Appendix). Ensuring women have the freedom to make their own reproductive health decisions, preventing unwanted pregnancies in the first place, and developing practical tools to improve parenting skills can decrease the need for abortion in New York State and help support healthy families. Abortion in a Post-Roe World The Supreme Court affirmed a woman’s right to choose as a constitutional right in 1973 with the decision of Roe v. Wade. The 7-2 decision was the first to grant women the right to an abortion based on a trimester framework. During the first trimester, or first three months of pregnancy, the state could not enact any laws regulating abortion. At this time, abortion was considered a safe and simple procedure, therefore, a woman had the right to terminate the pregnancy with no involvement from the state. The second trimester began at week fourteen and ended at week twenty-seven, before the fetus is considered “viable,” or able to live outside the womb. During the second trimester, states could enact laws regulating access to abortion, but only to the extent necessary for protecting the life and health of the mother. Finally, the third trimester began at the twenty-eighth week of pregnancy when the fetus becomes “viable.” At this stage, the state has a “compelling” interest in protecting the life of the fetus and, therefore, could restrict or even prohibit abortions, except when the health of the woman is at risk. Roe constitutes the basis of a woman’s right to choose, but subsequent decisions have eroded access to safe and legal abortion in the United States. Although Roe v. Wade afforded woman a degree of reproductive autonomy during the first trimester, Ruth Bader Ginsburg has observed that the decision “ventured too far in the change that it ordered,” stimulating the mobilization of a right-to-life movement 4 and procuring a legislative backlash at the state and federal level.6 Enacted in 1976, just three years after Roe, the Hyde Amendment blocked federal Medicaid funding for abortion services. In upholding the statute, the Supreme Court ruled, in Harris v. McRae (1980), that Roe did not require the government to provide funds for abortion. “The financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigence.”7 As a result of Harris, access to abortion was severely restricted for poor women. Currently, thirty-four states and the District of Columbia do not provide Medicaid funding for abortions, except in cases involving life endangerment, rape, and incest.8 Studies show that the prohibition on funds forces 18 to 37 percent of women on Medicaid to carry a pregnancy to term, a disproportionate number of Supreme Court Justice Ruth Bader Ginsburg whom are African American.9 The Court initiated a further rollback of Roe’s protections in 1992. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court reaffirmed Roe’s “essential holding” that a women’s right to abortion was secure before fetal viability. However, it upheld most of the restrictions in Pennsylvania’s 1989 Abortion Control Act, including parental notification for minors and a twenty-four-hour waiting period. In reaching its decision, the Court threw out Roe’s trimester framework and replaced it with the “undue burden” standard. Under this new standard, states could impose regulations on abortions any time prior to the viability of the fetus, so long as such measures did not place a “substantial obstacle in the path of a woman seeking an abortion.” Casey had two effects. First, the progressive approach wherein women bear the right to privacy and freedom to make personal decisions without an undue burden was rescinded. At no point under the undue burden test is a woman autonomous from the state regarding her right to choose. Second, scholars have criticized the decision because although it reaffirmed Roe’s central holding, it seemed to invite states to test whether restrictive abortion laws constituted an undue burden.10 As then-Chief Justice William Rehnquist observed, Casey actually cut “back the protections afforded by Roe.” Since 1992, antiabortion forces have sought to challenge the definition of an undue burden in court. In Gonzalez v. Carhart, for example, the Supreme Court upheld the Partial-Birth Abortion Act of 2003, a federal statute prohibiting intact dilation and extraction. Despite the act missing an exception for maternal health, the Court upheld the statute based on evidence provided by Congress that a partial-birth abortion “is never medically necessary.”11 Although many medical professionals disagreed, the Court declared that “medical uncertainty” over the health risks imposed by the law 5 was “a sufficient basis to conclude … that the Act does not impose an undue burden.”12 As Justice Ginsburg noted in her dissenting opinion, Gonzalez was the first time since Roe v. Wade that the Court did not require an exception for the health of the woman. Scaling Back Roe: Targeted Regulations of Abortion Providers The legal standard of undue burden remains vague and therefore open to case-by- case interpretation. Because of its subjectivity, nearly half the states have imposed access-barriers, also known as Targeted Regulations of Abortion Providers (TRAP), which aim to restrict abortion despite it being legal. In the words of one provider we spoke to — “Whether Roe gets overturned is irrelevant if my state has already restricted access.”13 TRAP laws are typically passed in red/conservative and swing states, with the exception of states like Maryland, Connecticut, and Rhode Island (see Figure 1).14 New York, by comparison, is a safe haven from TRAP laws. In essence, although abortion is considered a constitutional right, Figure 1 illustrates that access to abortion has been severely limited in many parts of the country. Three types of TRAP laws exist: those that apply to facilities, those that operate as requirements on clinicians, and those that apply directly to women.15 FIGURE 1.

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