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).