ANTI-CHOICE LAWS
Refusal to Provide Medical Services
ABORTION REFUSAL CLAUSE
New York allows certain individuals or entities to refuse to provide abortion services.
To whom does the refusal clause apply? Individuals and hospitals.
What does the refusal clause allow? No person who refuses in writing on the basis of conscience or religious beliefs may be required to perform or assist in an abortion. The refusal to perform or assist may not be a basis for civil liability or for discrimination by a hospital, person, firm, corporation, or association. No hospital may be required to admit any patient for the purpose of performing an abortion. The refusal to participate may not be the basis for liability if the hospital informs the patient of its decision not to participate in an abortion.
Must the refusal be in writing? Yes, for individuals. The writing must set forth the reasons for the refusal.
Does the law require the refusing entity to notify the persons affected? Yes, for hospitals. Upon refusal, the hospital must inform the patent of appropriate resources for services or information.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No, however, a hospital must inform the patient of appropriate resources for services or information.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
N.Y. Civ. Rights Law § 79-i (Enacted 1971); N.Y. Comp. Codes R. & Regs. tit. 10, § 405.9.
FAMILY PLANNING REFUSAL CLAUSE
New York allows certain individuals or entities to refuse to provide family planning and birth control services.
To whom does the refusal clause apply? Staff members of the Department of Social Services.
What does the refusal clause allow? Staff members of local social services departments may refuse to provide family planning services if it conflicts with their cultural values, conscience, or religious convictions. Social services officials must assign another appropriate staff member to act in the refusing employee's place.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No. However, the social services official or his designee is to reassign the duties of the employee in order to provide family planning services effectively.
N.Y. Comp. Codes R. & Regs. tit. 18, § 463.6 (Enacted 1978).
INSURANCE COVERAGE FOR CONTRACEPTION REFUSAL CLAUSE
Although New York law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception, certain employers and/or insurers may require that their plans exclude coverage for contraception.
To whom does the refusal clause apply? Religious employers for whom contraceptive methods are contrary to their religious tenets.
What does the refusal clause allow? A religious employer may require issuers of its health insurance plans to exclude coverage for contraception.
Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women? No. The law narrowly defines the term "religious employer" as a non-profit organization that has the purpose of inculcation of religious values and primarily employs and serves persons who share the religious tenets of the entity. This narrow definition is appropriately limited in scope, applying to religious entities but not broad-based entities that operate in the public sphere.
Does the law require the refusing entity to notify the persons affected? Yes. An employer exercising a refusal clause must provide written notice to prospective enrollees, listing the contraceptive health care services the employer refuses to cover for religious reasons.
Are there circumstances under which a refusal clause may not be exercised? Yes. A refusal clause may not be used to exclude overage for prescription drugs prescribed for reasons other than contraceptive purposes.
Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause? Yes. When an employer exercises a refusal clause, the insurer must provide enrollees with written notice of their right to directly purchase a rider for contraceptive coverage from the insurer. The notice must also advise enrollees of the additional premium for such coverage.
Has a court considered the constitutionality of this law? Yes. The New York Supreme Court held that this law is constitutional under both federal and state constitutions. Catholic Charities of the Diocese of Albany v. Serio, RJI No. 01-03-072905 (N.Y. Sup. Ct. Nov. 25, 2003), aff'd, 28 A,D,3d 115 (N.Y. App. Div. 2006), aff'd, 7 N.Y.3d 510 (N.Y. 2006), cert. denied sub nom. Catholic Charities of the Diocese of Albany v. Dinallo, No. 06-1550 (U.S.Oct. 1, 2007).
N.Y. Ins. Law § 3221, 4303 (Enacted 2002; Last Amended 2007), 4322 (Enacted 2002; Last Amended 2005).
Targeted Regulation of Abortion Providers (TRAP)
New York prohibits certain qualified health care professionals from performing abortions, and has an unconstitutional and unenforceable law that subjects abortion providers to burdensome restrictions not applied to other medical professionals.
Restrictions on Where Abortions May Be Performed
Among the most common TRAP regulations are those restricting the performance of abortions to hospitals or other specialized facilities, which require doctors to obtain medically unnecessary additional licenses, needlessly convert their practices to mini-hospitals at great expense, or perform abortions only in hospitals, an impossibility in many parts of the country.
New York has an unconstitutional and unenforceable law requiring that all abortions after the 12th week of pregnancy be performed in a hospital and on an in-patient basis. N.Y. Pub. Health Law § 4164.1 (Enacted 1974).
The General Counsel for the New York Department of Health has concluded that the second trimester hospitalization requirement would be unconstitutional if enforced. Letter from Henry Greenberg, General Counsel, State of N.Y. Dep't of Health, to Erin Walker (Mar. 10, 1997).
Restrictions on Who May Perform Abortions
New York prohibits certain qualified health care professionals from performing abortions.
Only a licensed physician may perform an abortion. A woman may perform an abortion upon herself if she acts upon a physician's advice: (1) that such act is necessary to preserve her life; or (2) within 24 weeks from the commencement of her pregnancy. N.Y. Penal Law § 125.05(3) (Enacted 1965; Last Amended 1970).
PRO-CHOICE LAWS
Contraceptive Equity
New York law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception.
What is required? If a health insurance plan provides coverage for prescription drugs, it must provide coverage for Food and Drug Administration-approved prescription contraceptive drugs or devices.
To which insurance plans does the law apply? Group and blanket accident and health insurance policies, hospital or medical service contracts, and health maintenance organizations (HMOs) that provide coverage for prescription drugs.
Does the law provide additional protections for women? Yes. Insurers may only impose reasonable deductibles and coinsurance for contraceptive coverage that are consistent with those established for other drugs or devices covered under the policy.
Does the law contain a refusal clause, allowing certain employers and/or insurers to refuse to provide or pay for contraceptive coverage? Yes.
To whom does the refusal clause apply? Religious employers for whom contraceptive methods are contrary to their religious tenets.
What does the refusal clause allow? A religious employer may require issuers of its health insurance plans to exclude coverage for contraception.
Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women? No. The law carefully defines the term "religious employer" as a nonprofit organization that has the purpose of inculcating religious values and primarily employs and serves persons who share the religious tenets of the entity. This exemption appropriately applies to religious entities but not broad-based entities that operate in the public sphere.
Does the law require the refusing entity to notify the persons affected? Yes. An employer exercising a refusal clause must provide written notice to prospective enrollees, listing the contraceptive health care services the employer refuses to cover for religious reasons.
Are there circumstances under which a refusal clause may not be exercised? Yes. A refusal clause may not be used to exclude overage for prescription drugs prescribed for reasons other than contraception.
Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause? Yes. When an employer exercises a refusal clause, the insurer must provide enrollees with written notice of their right to directly purchase a rider for contraceptive coverage from the insurer. The notice must also advise enrollees of the additional premium for such coverage.
Has a court considered the constitutionality of this law? Yes. New York state courts held that this law is constitutional under both the federal and state constitutions. Catholic Charities of the Diocese of Albany v. Serio, RJI No. 01-03-072905 (N.Y. Sup. Ct. Nov. 25, 2003), aff'd, 28 A,D,3d 115 (N.Y. App. Div. 2006), aff'd, 7 N.Y.3d 510 (N.Y. 2006), cert. denied sub nom Catholic Charities of the Diocese of Albany v. Dinallo, No. 06-1550 (U.S. Oct. 1, 2007).
N.Y. Ins. Law §§ 3221, 4303, 4322 (Enacted 2002).
Emergency Contraception
EMERGENCY CONTRACEPTION (EC) FOR SEXUAL ASSAULT VICTIMS
New York law ensures that sexual assault victims receive access to emergency contraception (EC) in hospital emergency rooms. As part of the minimum standards for the examination and treatment of a sexual assault victim, a physician or other health care provider must provide a sexual assault victim with medically and factually accurate information about EC, offer her EC, and dispense EC to her upon request.
The Commissioner of the Department of Health is required to develop, prepare, and produce informational materials about EC for distribution to and use in all hospitals in the state. The Commissioner may also approve such materials from medically recognized sources.
N.Y. Pub. Health Law § 2805-p (Enacted 2003).
MEDICAID COVERAGE OF EMERGENCY CONTRACEPTION (EC)
New York provides Medicaid coverage of emergency contraception without a prescription.
NARAL Pro-Choice America Survey of State Medicaid Offices
Low-Income Women's Access to Abortion
New York allows women eligible for state medical assistance for general health care to obtain public funds to pay for a medically necessary abortion. "Medically necessary" is defined as necessary to prevent, diagnose, correct, or cure conditions in the person that cause acute suffering, endanger life, result in illness or infirmity, interfere with a person's capacity for normal activity, or threaten some significant handicap. N.Y. Soc. Serv. Law § 365-a(2) (Enacted 1966); N.Y. State Medicaid Program, Provider Manual, Physician Policy Guidelines, 18-19 (Rev. 2004) at http://www.emedny.org/ProviderManuals/Physician/PDFS/Physician_Manual_Policy_Guidelines.pdf.
Low-Income Women's Access to Family Planning
New York provides increased access to reproductive health care services through a Section 1115 waiver. As part of this waiver, the state is allowed to cover family planning services for men and women with incomes at or below 200% of the federal poverty level who are not otherwise eligible for Medicaid, and for women who lose Medicaid eligibility after the 60-day postpartum period who are not otherwise eligible for other federal or state health care programs. Eligibility lasts for one year.
Covered services include: pregnancy testing and counseling; reproductive health information, education and counseling services; all FDA-approved birth control methods, devices and supplies, including emergency contraception; comprehensive protective health history and physical examination; prevention and treatment of STDs; screening, testing, ambulatory treatment and referral for treatment of dysmenorrhea, cervical cancer or other genito-urinary abnormality identified in family planning services, and treatment for conditions impacting contraceptive choice; HIV counseling and testing; emergency services directly related to the contraceptive method; male and female sterilization; preconception counseling and preventive screening, including review of reproductive history, counseling for healthy lifestyles and screening for conditions impacting on a healthy pregnancy.
The waiver will expire on Sept. 30, 2009.
N.Y. Partnership Plan Section 1115 Demonstration Fact Sheet, Ctrs. for Medicare and Medicaid Servs., Oct. 1, 2006 at http://www.cms.hhs.gov/MedicaidStWaivProgDemoPGI/downloads/New%20York%20Partnership%20Plan%20Fact%20Sheet.pdf (last visited Dec. 5, 2008); N.Y. Medicaid Demonstration Project For Family Planning Expansion Program; NARAL Pro-Choice America Survey of State Medicaid Offices
Protection Against Clinic Violence
Any person who: (1) by force, threat of force, or by physical obstruction intentionally injures, intimidates, or interferes with, or attempts to injure, intimidate, or interfere with, another person because she or he was or is obtaining or providing reproductive health services, or in order to discourage another person from obtaining or providing reproductive health services; or (2) intentionally damages or attempts to damage the property of a health care facility because it provides reproductive health care services is guilty of a misdemeanor. Any repeat offense is a felony.
This law does not apply to a minor's parent or guardian whose conduct is directed exclusively at the minor. The attorney general or district attorney of the county in which the affected health care facility is located may seek injunctive relief whenever she or he has reasonable cause to believe that any person or group of persons is, has been, or may be injured by conduct violating this law.
N.Y. Penal Law §§ 240.70 to .71 (Enacted 1999); N.Y. Civ. Rights Law § 79-m (Enacted 1999).
In a lawsuit against individuals who violated this clinic access law, a court noted that this law is constitutional. New York v. Kraeger, 160 F. Supp. 2d 360 (N.D.N.Y. 2001).
OTHER LAWS
Post-Viability Abortion Restriction
New York's post-viability abortion restriction provides that no abortion may be performed after the 24th week of pregnancy unless necessary to preserve the woman's life. N.Y. Penal Law § 125.05(3) (Enacted 1965; Last Amended 1970), 125.40 (Enacted 1965).
Another law provides that when an abortion is performed after the 20th week of pregnancy, a second physician must be in attendance. N.Y. Pub. Health Law § 4164 (Enacted 1974).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortions so long as they contain adequate exceptions to protect the life and health of the woman. NARAL Pro-Choice America opposes New York's post-viability restriction because it lacks an exception to protect the health of the woman. NARAL Pro-Choice America also opposes this law because it is unconstitutional to the extent that it prohibits pre-viability abortions by defining viability at 24 weeks. A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside of a woman's body. Roe v. Wade, 410 U.S. 113, 163 (1973). Because viability is a point that varies with each pregnancy, states may not declare that it occurs at a particular gestational age. Colautti v. Franklin, 439 U.S. 379, 388-89 (1979).
