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State Laws

New York


Political Information

Executive (Governor)

Pro-choice

Senate

Anti-choice

House

Pro-choice

Abortion-Care Policies

Abortion Providers

Abortion Providers: Restrictions

New York imposes extra restrictions on abortion providers, despite the fact that all health-care providers already must comply with a variety of federal and state regulations governing health, safety, building and fire codes, and zoning requirements.

Restrictions on Where Abortion Services May Be Provided

Among the most common TRAP regulations are those restricting the provision of abortion services 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 provide abortion services only in hospitals, an impossibility in many parts of the country.

New York has an unconstitutional and unenforceable law requiring that all abortion services after the 12th week be provided in a hospital and on an in-patient basis. N.Y. Pub. Health Law § 4164.1 (Enacted 1974).

The New York Department of Health general counsel 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).

Additionally, at least one physician at each site that provides abortion services must have admitting privileges at a hospital.  Nothing requires hospitals to grant such privileges, nor is an exception made for rural areas. N.Y. Comp. Codes R & Regs. tit. § 10, 756.4 (1987).

Restrictions on Who May Provide Abortion Services

New York prohibits certain qualified health-care professionals from providing abortion services.

Only a licensed physician may provide abortion care. A woman may terminate a pregnancy 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).


Abortion Providers: Expanded Access to Surgical Abortion

A ruling from the New York Department of Health permits physician’s assistants to provide surgical first-trimester abortion care (New York State Dep’t of Health, Declaratory Ruling: Performance of an Abortion by Physician Assistant (Dec. 20, 1994)).


Abortion Providers: Expanded Access to Non-Surgical Abortion

A ruling from the New York Department of Health permits physician’s assistants to provide non-surgical first-trimester abortion care (New York State Dep’t of Health, Declaratory Ruling: Performance of an Abortion by Physician Assistant (Dec. 20, 1994)).


Abortion Rights

Post-Viability Ban

New York’s post-viability abortion restriction states that no abortion may be provided 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).  However, in September 2016, New York Attorney General Eric Schneiderman issued a legal opinion stating that an abortion after the 24th week of pregnancy is lawful when a fetus is not viable or when an abortion is necessary to protect a woman’s health, even though the penal law contains no express exemptions for those circumstances.  This opinion explained that "New York law cannot criminalize what the federal Constitution protects, and thus the Penal Law should be interpreted to be consistent with the Constitution." Op. NY Att’y Gen. 2016-F1 (Sept. 7, 2016).

Another law provides that when an abortion is provided 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 abortion so long as they contain adequate exceptions to protect the woman’s life and health.  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 abortion 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 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).


Biased Counseling

No state measure.

Mandatory Delays

No state measure.

Insurance Coverage & Abortion

Supports Insurance Coverage of Contraception

New York law requires health-insurance plans that cover prescription medication to provide equitable coverage for contraception.

What is required?  If a health-insurance plan provides coverage for prescription medication, it must provide coverage for Food and Drug Administration-approved prescription contraception.

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 medication.

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 medication 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 contraception is 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 medication 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 also must 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 (16), 4303, 4322 (Enacted 2002).


Low-Income Women & Abortion

Restricts 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 medically necessary abortion services.  "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. April 2008), at https://www.emedny.org/ProviderManuals/Physician/PDFS/Physician_Manual_Policy_Guidelines.pdf.


Young Women & Abortion

No state measure.

Family-Planning Policies

Insurance Coverage & Contraception

No state measure.

Low-Income Women & Contraception

Supports Low-Income Women’s Access to Contraception

New York provides increased access to reproductive-health-care services through a State Plan Amendment (SPA) to its Medicaid program.  The SPA allows the state to cover family-planning services for women and men with family incomes at or below 223 percent.  Additionally, enrollees must be (1) U.S. citizens or persons who meet the state’s defined immigration requirements and (2) New York residents.

Beneficiaries of family-planning coverage available through the SPA are not required to pay premiums or co-payments for covered services.  Covered services include: all FDA-approved birth-control methods, devices and supplies; a comprehensive reproductive-health history, physical examination, and pap smear; emergency services directly related to the contraceptive method and follow-up; pregnancy testing and counseling; prevention and treatment of sexually transmitted infections; HIV testing and counseling; limited diagnostic services for fertility management; male and female sterilization; reproductive-health education and counseling.

New York Family Planning Benefit Program, NY-12-12, at https://www.medicaid.gov/State-resource-center/Medicaid-State-Plan-Amendments/Downloads/NY/NY-12-12.pdf;  https://www.medicaid.gov/State-resource-center/Medicaid-State-Plan-Amendments/Downloads/NY/NY-13-0053-MM1.pdff.  New York Family Planning Benefit Program, at https://www.health.ny.gov/health_care/medicaid/program/longterm/familyplanbenprog.htm


Supports Low-Income Women’s Access to Contraception

MEDICAID COVERAGE OF EMERGENCY CONTRACEPTION (EC)

New York provides Medicaid coverage of emergency contraception without a prescription.

New York State Medicaid Program, Pharmacy Manual Policy Guidelines (November, 2015), at https://www.emedny.org/ProviderManuals/Pharmacy/PDFS/Pharmacy_Policy_Guidelines.pdf.


Emergency Contraception

EC in the ER

New York law ensures that sexual-assault survivors 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 survivor, a physician or other health-care provider must provide a woman with medically and factually accurate information about EC, offer her EC, and dispense EC to her upon request.

The commissioner 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 also may approve such materials from medically recognized sources.

N.Y. Pub. Health Law § 2805-p (Enacted 2003).


Other Important Issues

Clinic Protections

Clinic Protections

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); § 240.72 (Enacted 2010); 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).  


Crisis Pregnancy Centers

No state measure.

Refusals & Guarantees

Refusals of Medical Care

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? Allows individuals who refuse in writing on the basis of conscience or religious beliefs to refuse to provide abortion services. The refusal may not be a basis for civil liability or for discrimination by a hospital, person, firm, corporation, or association. Allows hospitals to refuse to admit any patient for the purpose of providing abortion care. The refusal to participate may not be the basis for liability if the hospital informs the patient of its decision not to participate in abortion care.

Must the refusal be in writing? Yes, for individuals. The writing must set forth in advance 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 to refuse to provide family-planning 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 medication to provide equitable coverage for contraception, certain employers 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 nonprofit 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 medication 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 2012), 4322 (Enacted 2002; Last Amended 2005).


Counseling & Referral Bans

No state measure.

Everyone should be able to decide if, when, how, and with whom they start or grow a family.

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