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New York

The pre-Roe statutes allowed abortion on demand through the twenty-fourth week of pregnancy.1  After the twenty-fourth week, an abortion could be performed on a pregnant woman only if there was “a reasonable belief that such is necessary to preserve her life.”2  In a pre-Roe decision, the New York Court of Appeals rejected a challenge to the law brought by a guardian ad litem for unborn children.3  The legality of abortion would not be affected by the overruling of Roe v. Wade.  The pre-Roe statutes, which have not been repealed,4 allow abortion on demand through the twenty-fourth week of pregnancy.  After the twenty-fourth week, however, abortions could be performed only to preserve the woman’s life.

 

Regardless of Roe, any attempt to prohibit abortion (at least before viability) in New York probably would be barred by language in the New York Court of Appeals’ decision in Hope v. Perales,5 a challenge to the New York Prenatal Care Assistance Program.  In Hope, the court of appeals noted in passing that “it is undisputed by defendants that the fundamental right of reproductive choice, inherent in the due process liberty right guaranteed by our State Constitution, is at least as extensive as the Federal constitutional right [recognized in Roe v. Wade].”6 

 



1 N.Y. Penal Law § 125.00 et seq. (McKinney Supp. 1971).

2 Id. § 125.05(3).  Although self-abortion was a criminal offense under certain circumstances, no prosecutions were reported under the law.

3 See Byrn v. New York City Health & Hospitals Corp., 286 N.E.2d 887 (N.Y. 1972), appeal dismissed for want of a substantial federal question, 410 U.S. 949 (1973).

4 N.Y. Penal Law § 125.00 et seq. (McKinney 2004).

5 634 N.E.2d 183 (N.Y. 1994).

6 Id. at 186.

 

 
 
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