ALBANY -- Late-term abortions in New York can be performed when the fetus is not viable or the woman's health is in jeopardy, Attorney General Eric Schneiderman said in an opinion released Thursday.
The Democratic attorney general said the combination of the federal Roe vs. Wade decision in 1973 and New York Penal Law makes abortions after 24 weeks legal in the certain instances.
“No state law can restrict a woman’s constitutional right to make her own reproductive health choices,” Schneiderman said in a statement. "This opinion makes crystal clear that all women have a constitutional right to an abortion, irrespective of inconsistent state law."
Schneiderman issued the opinion at the request of the state Comptroller's Office, which was uncertain over its auditing authority for state payments to health-care providers.
Democrats and women's groups have been pressing for years to reconcile the differences between Roe vs. Wade and state Penal Law, which was put in place in 1970 before the landmark federal court case.
Schneiderman's opinion stated the state law says abortion is a crime unless it is a "justifiable abortional act,” which means the abortion must be performed either “(a) under a reasonable belief that such is necessary to preserve [the pregnant woman’s] life, or, (b) within twenty-four weeks from the commencement of her pregnancy.”
But his opinion continued that the United States Supreme Court "has made clear that an abortion is constitutionally protected if it is necessary in appropriate medical judgment to preserve the pregnant woman’s life or her health."
So Schneiderman, a former state senator from Manhattan, concluded that state law should be interpreted as including the "additional exception for preserving health." "Likewise, the Court has also made it clear that the right to choose abortion is constitutionally protected from undue burdens until viability, and that the determination of viability must be made by the attending physician," he continued."Therefore, an exception must be read into subsection (b) of the statute for the situation of a fetus that is nonviable after 24 weeks from the commencement of pregnancy."
Pro-life groups raised concerns over the opinion.
The ruling would set a dangerous precedent, the state Catholic Conference told the New York Times, which first reported on the opinion Wednesday night.
“The use of ‘life and health’ of the mother really means abortion on demand throughout all nine months of pregnancy,” the group's spokesman, Dennis Poust, told the paper.
Women's groups and Democrats in the state Legislature have sought a state law that would provided the limited ability to perform late-term abortions, but Republicans who control the state Senate have blocked the measure in recent years.
The groups applauded Schneiderman's ruling, saying women have had to travel out of state and in risky situations to get late-term abortions.
“The confusion caused by our state’s outdated and punitive abortion law has kept too many women from the care they need, with devastating consequences," Donna Lieberman, executive director of the New York Civil Liberties Union, said in a statement.
"For patients, state agencies, hospitals and other providers there should be no further doubt that Roe v Wade is the law of the land.”