What happens in NY if Roe v. Wade is overturned?
In a matter of weeks, the U.S. Supreme Court is expected to either overturn or substantially weaken its landmark Roe v. Wade decision. It has advocates on both sides of the abortion issue preparing — even in a Roe-friendly state like New York.
A Change is Gonna Come
For the first time since Roe was decided nearly 50 years ago, there's a 6-3 majority against abortion on the U.S. Supreme Court. It's why the High Court is expected to decide against Roe in two major cases already argued. One is a Texas ban on abortion after six weeks of pregnancy. The other is a Mississippi ban after 15 weeks.
When this happens, the Guttmacher Institute expects 26 states to seek a ban on abortion and more women traveling to Roe-friendly states for the procedure. The NYC-based research and policy organization estimates that New York would then be the closest state for another 200,000 women of reproductive age.
"Which is a pretty big increase. And, in fact, that might be a minimum number," said Elizabeth Nash, a principal policy analyst at the Guttmacher Institute.
"To what extent does New York have the capacity to serve them?" WBFO asked.
"Well, that's the big question," Nash said. "In states that have protected abortion rights, as well as those that continually try to restrict access, we don't always have the capacity that we need. And certainly, if you're talking about more people coming to a state for an abortion, there needs to be more capacity within that state. Advocates and providers are thinking about this very, very much. But we also need state government to step in."
Abortion in NY Now
Gov. Kathy Hochul has welcomed women from other states in need of an abortion to come to New York.
"Who are the warriors in this battle? Yes, it's New York women once again, to help our sisters across this country," she said in September, when Texas passed its abortion ban. "This is a safe harbor for people suffering from oppression and our harbor is open. The rights of those who are seeking abortion services will always be protected here."
Hochul also talked about starting a public awareness campaign that includes providers, a campaign against misinformation, a patient bills of rights and abortion care through telemedicine. Her State of the State Address in January included a reproductive rights agenda with more funds for Family Planning Grants and safety-net hospitals, while codifying private insurance coverage for abortions without cost-sharing.
Two kinds of abortions are available in New York: surgical requires a physician, while medication uses two pills to terminate a pregnancy. The state's Reproductive Health Act, enacted in 2019, allows "a licensed healthcare practitioner to perform an abortion within 24 weeks of pregnancy, when there's an absence of fetal viability, or it's necessary to protect the patient's life or health."
"We legalized abortion here in New York prior to Roe v. Wade and so our laws were outdated and required modernization to be in alignment with the federal protections under Roe," said Georgana Hanson, interim president and CEO of Planned Parenthood Empire State Acts, the advocacy organization for the five Planned Parenthoods in New York. "And that's what we did here in New York. We moved the regulation of abortion out of the penal code and into the public health law where it rightfully belongs, because abortion is health care."
Until the Reproductive Health Act, abortion was technically still a crime in New York.
New York performs more abortions than any other state, according to the Centers for Disease Control and Prevention. The CDC reported 78,587 induced abortions in the state in 2019 and two-thirds of them were performed in NYC, according to the state Health Department. The CDC also reported about 9% are women from out of state, usually because it's easier to get the procedure here.
Barriers to Care
"A right is meaningless if there's not meaningful access," Hanson said.
Hanson said as Roe-friendly as New York is, the state still has barriers to care and they'll become more prominent when demand increases. A virtual Day of Action is planned for March 8.
"We are looking closely at what those barriers are and we're thinking about ways to remove them," she said. "And that could include priorities like uplifted by the governor, in terms of strengthening insurance coverage for abortion, could be financial considerations, could be child care, logistics, transportation."
It starts, however, with a strong provider network, she said. The Guttmacher Institute estimates about 250 abortion providers in New York, but the majority are in the NYC area, where the majority of procedures are done.
"Coming into New York State, capacity is limited, especially in Western New York," said University at Buffalo OB/GYN professor Dr. Vanessa Barnabei.
Barnabei, who trains students in all aspects of reproductive health at UB's Jacobs Medical School, said there's already a critical shortage of OB/GYN doctors. The Medical School graduates only 2-4 a year who end up working locally.
"The technique that we use to perform early terminations is the same procedure that we use to treat miscarriage or threatened miscarriage or missed abortion," Barnabei said. "But that doesn't mean that those people will go out and do pregnancy terminations once they leave residency."
And even those who do face barriers providing care. Barnabei said key to increasing access is medications, but the federal government keeps a tight grip on them.
"You have to have special permission to be a provider," she said. "It's not that you have to go through any special certification, but you have to fill out pages and pages of forms to do that. And so that the number of providers who are willing to do that is low."
Although, in December, the FDA permanently lifted the ban on receiving abortion pills through the mail, allowing more telemedicine appointments and less travel time. According to CompassCare, which provides services in Buffalo and Rochester, medication abortions can also be half the cost of surgical procedures.
Nash said New York recognized it will take many years to increase the number of providers by allowing physician assistants to do abortions, not just physicians. Still, she said, the continued "harassment and violence across the country makes it very hard for people to become abortion providers."
WBFO reached out to local providers, but no one expressed a willingness to give an interview.
Western New York has had an especially violent history. Throughout the 1990s, Buffalo was a common site for large, vocal police- and court-enforced pro-life demonstrations. In October 1998, Amherst provider Dr. Bernard Slepian was fatally shot through the window of his home.
WBFO reached out to several pro-life organizations, but did not receive a response.
Sonia Ossorio, president of the National Organization for Women New York, said the network is also limited because the Catholic Church owns many health facilities.
"Those hospitals aren't going to be providing abortions," she said. "That's a problem."
Barnabei agreed that hospitals, in general, are resistant to being known for performing abortions. Hence the increased move to stand-alone facilities, but those are also more prone to attack.
Even the several facilities in Western New York that perform abortions may not do all types at any point in a pregnancy. Planned Parenthood, for example, does second-trimester abortions mostly in Rochester, according to Barnabei.
A limited provider network for potentially thousands more women than usual could mean longer waits for appointments.
Ossorio said another longstanding federal barrier that impacts New York women is what's called the Hyde Amendment.
"The Hyde Amendment, in and of itself, was the biggest blow to access to reproductive rights and our freedom to abortion in this country," she said.
Passed by Congress five years after Roe, the Hyde Amendment prohibits Medicaid funds for abortion, except in cases of rape, incest or when a woman's life is endangered by carrying a pregnancy to term. New York voluntarily uses its own funds in these cases and Hyde has been used as a template for restricting other public spending on abortion care.
"And, of course, who does it affect the most? It affects women in the poorest counties, women who are working minimum wage jobs, who don't have the the availability to be able to travel to other states to be able to get the access that they need," Ossorio said.
Although President Biden has promised to do away with Hyde, Kaiser Family Foundation noted that since it's attached to the annual passage of federal spending bills, the amendment also impacts funding for abortions under the Indian Health Service, Medicare, the Children's Health Insurance Program, the military's TRICARE program, federal prisons, the Peace Corps and federal employee health programs.
Ossorio said NYC has set up its own abortion fund and 30% goes to women from outside the city. She advocates the state set up a similar fund that could help pay the costs for residents and women from outside New York.
"It's very complicated," Ossorio said. "Even though we have access through Medicaid here in New York, it can be bureaucratic to get through all of that. And time is of the essence in these situations. You will want the care as quickly as possible."
"I anticipate a pretty interesting state session in New York, but across the country, as well," Nash said. "People are all looking at what the Supreme Court's doing."