New York Penal Laws 125.00–125.6

New York State Abortion Laws, 1970

Legislation

By: New York state legislature

Date: July 1, 1970

Source: New York Penal Code

About the Author: In New York state, the power to both introduce and to pass legislation is centered in the state legislature. The legislature has a bicameral structure, as it is composed of a senate and an assembly, each of which is elected. All proposed New York state legislation must pass both branches of the legislature before becoming law. The governor of the state has certain powers of veto available with respect to laws passed by the legislature.

INTRODUCTION

Prior to 1970, there were no American states that permitted pregnant women to freely obtain a legal abortion. Abortion procedures were only available in the limited circumstances of a demonstrated threat to a woman's health should the pregnancy extend to its full term, or where the pregnancy arose due to an act of rape or incest. Illegal abortions were performed with considerable regularity; it was estimated in 1970 that there were between 200,000 and 1.2 million illegal abortions performed annually in the United States.

A number of different groups coalesced around the movement to liberalize American abortion laws in the 1960s, and organizations that were just as fervent in their opposition to legalized abortion were also founded at this time. The most prominent of the pro-abortion groups, the National Association for the Repeal of Abortion Laws (NARAL), was founded in New York in 1969.

A number of distinct issues were advanced by the pro-abortion forces in support of their demand for legislative change. As the public debate intensified, the most important of these issues to be articulated was the ability of women to have access to a safe abortion, performed by a licensed and properly trained doctor, coupled with the claim that a woman had the ultimate right to decide whether a pregnancy proceeded.

In 1967, the state of Colorado enacted a law that provided limited rights to abortion, the same year Great Britain passed the world's first abortion law that legalized the ability of a woman to elect to have an abortion without requiring judicial consent, a concept that became known as "abortion on demand."

The proposed abortion amendments to the New York State Penal Code were the subject of an intense public dialogue both in New York and throughout the United States. The abortion law was ultimately passed in the New York legislature by a single vote on April 9, 1970. The states of Alaska, Hawaii, and Washington each passed similar statues later that year. Within the first year of the passage of the New York abortion legislation, seventeen American states had either permitted abortion on demand, or had otherwise liberalized the ability of women to secure the services of a physician to perform an abortion.

The first crucial feature of the New York state abortion law was the legalization of elective abortions within the first twenty-four weeks of the pregnancy. Abortions performed after the second trimester, or twenty-four weeks, were criminalized as an act of homicide in the abortion law on the part of both the woman undergoing the procedure and the physician performing the abortion. Any abortion performed in any fashion other than that expressly sanctioned in the legislation would render the participants liable to prosecution, including women who attempted to abort a pregnancy themselves. Such abortions were classed as felony offences in the statute.

The second important aspect of the New York law was the absence of a residency requirement. Any woman who was able to travel to New York state could, in theory, secure the services of a physician to perform an abortion so long as her request otherwise complied with the statutory provisions.

PRIMARY SOURCE

NEW YORK LEGISLATURE LEGALIZES ABORTION ON DEMAND

§ 125.00 Homicide defined

Homicide means conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks under circumstances constituting murder, manslaughter in the first degree, manslaughter in the second degree, criminally negligent homicide, abortion in the first degree or self-abortion in the first degree.

§ 125.05 Homicide, abortion and related offenses; definitions of terms

The following definitions are applicable to this article:

1. "Person," when referring to the victim of a homicide, means a human being who has been born and is alive.
2. "Abortional act" means an act committed upon or with respect to a female, whether by another person or by the female herself, whether she is pregnant or not, whether directly upon her body or by the administering, taking or prescription of drugs or in any other manner, with intent to cause a miscarriage of such female.
3. "Justifiable abortional act." An abortional act is justifiable when committed upon a female with her consent by a duly licensed physician acting (a) under a reasonable belief that such is necessary to preserve her life, or, (b) within twenty-four weeks from the commencement of her pregnancy. A pregnant female's commission of an abortional act upon herself is justifiable when she acts upon the advice of a duly licensed physician (1) that such act is necessary to preserve her life, or, (2) within twenty-four weeks from the commencement of her pregnancy. The submission by a female to an abortional act is justifiable when she believes that it is being committed by a duly licensed physician, acting under a reasonable belief that such act is necessary to preserve her life, or, within twenty-four weeks from the commencement of her pregnancy.

Sec. 125.40 Abortion in the second degree.

A person is guilty of abortion in the second degree when he commits an abortional act upon a female, unless such abortional act is justifiable pursuant to subdivision three of section 125.05.

Abortion in the second degree is a class E felony.

Sec. 125.45 Abortion in the first degree.

A person is guilty of abortion in the first degree when he commits upon a female pregnant for more than twenty-four weeks an abortional act which causes the miscarriage of such female, unless such abortional act is justifiable pursuant to subdivision three of section 125.05.

Abortion in the first degree is a class D felony.

§ 125.50 Self-abortion in the second degree.

A female is guilty of self-abortion in the second degree when, being pregnant, she commits or submits to an abortional act upon herself, unless such abortional act is justifiable pursuant to subdivision three of section 125.05.

Self-abortion in the second degree is a class B misdemeanor.

§ 125.55 Self-abortion in the first degree.

A female is guilty of self-abortion in the first degree when, being pregnant for more than twenty-four weeks, she commits or submits to an abortional act upon herself which causes her miscarriage, unless such abortional act is justifiable pursuant to subdivision three of section 125.05.

Self-abortion in the first degree is a class A misdemeanor.

Sec. 125.60 Issuing abortional articles.

A person is guilty of issuing abortional articles when he manufactures, sells or delivers any instrument, article, medicine, drug or substance with intent that the same be used in unlawfully procuring the miscarriage of a female.

Issuing abortional articles is a class B misdemeanor.

SIGNIFICANCE

The passage of New York state abortion law in 1970 was the first of several battles waged by the pro-abortion forces in the United States, culminating in the decision of the United States Supreme Court in Roe v. Wade in January 1973. The legal and public relations contests between pro and anti-abortion forces during this period reflected the most momentous social policy confrontation since those concerning desegregation in the late 1940s and early 1950s.

The New York state abortion laws were significant not because they represented a conclusion to the abortion issue, but for the fact that the New York legislation was a point of commencement to a fresh round of a national debate whose origins could be traced to the early 1800s. Under the British common law, doctrines that governed the availability of abortion in early years of the United States, abortions were legal so long as they were performed prior to the first discernible movement of the fetus. It was only in the 1850s that American states began to enact statutes to prohibit the performing of abortions.

The legalization of abortion in New York and elsewhere after 1970 had the secondary effect of contributing to the reduction in the death toll attributable to illegal abortions. As recently as the mid 1960s, illegal abortions caused or contributed to approximately seventeen percent of all deaths that resulted from pregnancy or childbirth.

The New York legislation permitted any woman to come to New York and obtain an abortion, and in the first two years of the statute, it is estimated that over sixty percent of those women undergoing an abortion were not residents of New York. Over three hundred and fifty thousand abortions were performed in New York between the passage of the abortion statute and the Supreme Court decision in Roe v. Wade.

The American abortion debate has continued long afer Roe v. Wade. The subsequent action of the New York legislature with respect to the 1970 abortion law is one example of the continuing struggle on both sides of the abortion debate. The statute passed the New York state legislature by a single vote, and the same legislature voted to repeal the 1970 law in 1972. The repeal legislation was vetoed by Governor Nelson Rockefeller. The subsequent ruling of the Supreme Court in Roe confirmed the constitutionality of the New York abortion law.

In the years since the abortion law was passed in 1970, the national debate regarding abortion has shifted its focus. In 1992, the Supreme Court retrenched certain aspects of the concept of abortion on demand in its decision in Planned Parenthood v. Casey. The Court ruled that individual states were permitted (but not obligated) to regulate how abortions were performed. States were permitted to prohibit women from proceeding with an abortion if the pregnancy would then result in a viable birth. The Court also rules that states could require parental consent for minors seeking an abortion, a waiting period after the decision to proceed was made by the woman, and the state could mandate counseling as to other options that abortion.

Since the Casey decision, the anti-abortion forces in America, a variety of groups generally described as pro-life, have lobbied the federal government to enact legislation that would have the effect of repealing Roe v. Wade. Conversely, the New York abortion legislation has become further entrenched in the political and legal culture in the state. In 2000, New York had the highest abortion rate of any state in the United States. in that year, thirty-nine women in every one thousand in the state ended a pregnancy through abortion. New York state also provides public funds, through its Medicaid program, to provide for abortions for women who lack the means to pay for the procedure.

A feature of the New York abortion legislation that has manifested itself in other aspects of the national abortion debate is the issue of when human life is said to begin. The legislation does not define life, except through the indirect means of imposing a criminal sanction upon those involved in an abortion in the post-twenty-four week period. The traditional definition of homicide is the killing of a human being. By inference, the New York state law establishes a fetus twenty-four weeks or older as human life. Conversely, the New York statute may be interpreted to mean that human life does not begin to exist until after the fetus has gestated for twenty-four weeks. Disputes concerning such interpretations are at the crux of modern anti-abortion sentiments that hold that life begins with conception.

FURTHER RESOURCES

Books

Risen, James and Judy L. Thomas. Wrath of Angels: The American Abortion War. New York: Basic Books, 1998.

Solinger, Rickie, ed. Abortion Wars: A Half Century of Struggle 1950–2000. Berkley: University of California Press, 2000.

Web sites

New York Magazine. "The Abortion Capital of America." December 12, 2005. <http://www.newyorkmetro.com/nymetro/features/15248/index.html> (accessed May 20, 2006).