Penal Law § 125.05(3)

To accord with precedent of the United States Supreme Court, Penal Law § 125.05
must be read to include an exception to preserve a pregnant woman’s health and to
allow an abortion of a nonviable fetus after 24 weeks.

                                  September 7, 2016


Nancy G. Groenwegen, Counsel                          Formal Opinion
Office of the State Comptroller                       No. 2016-F1
110 State Street, 14th Floor
Albany, New York 12236

Dear Ms. Groenwegen:

       You have asked whether an abortion can be lawful in New York when performed
after 24 weeks from the commencement of pregnancy and not necessary to save the life
of the pregnant woman. You raise this question because the New York Penal Law
appears to criminalize all abortions performed after 24 weeks from the commencement
of pregnancy unless necessary to save the life of the pregnant woman, but some such
abortions—where the fetus is not viable or the procedure is necessary to protect the
woman’s health—are protected by the United States Constitution as interpreted by the
United States Supreme Court. You have an interest in the answer to this question
because the Comptroller, performing his duty under Article V, section 1 of the State
Constitution, audits state payments to health care service providers who perform
abortions to ensure that the payments are proper and in accord with the law. You
recognize that federal constitutional law appears to allow abortions that the New York
Penal Law prohibits and you believe that the federal Constitution is controlling.

      New York law cannot criminalize what the federal Constitution protects, and
thus the Penal Law should be interpreted to be consistent with the Constitution.
Accordingly, as explained below, an abortion performed after 24 weeks from the
commencement of pregnancy is lawful in New York when the fetus is not viable or
when the abortion is necessary to protect the health of the pregnant woman, even
though the Penal Law contains no express exemptions for those circumstances.

        The United States Supreme Court held in 1973 that until approximately the end
of the first trimester, a woman has a right to an abortion free from state interference,
and until the point of viability that right is subject to state regulation only for the
protection of the woman’s health. Roe v. Wade, 410 U.S. 113, 163 (1973). The Court
further held that after viability a state may not proscribe abortion when it is necessary
to preserve the life or the health of the pregnant woman. 410 U.S. at 163-64. While
the Court modified its trimester analysis in 1992, it reaffirmed that before viability a
state may not constitutionally impose any “undue burden” on the constitutionally
protected right to choose abortion. Planned Parenthood v. Casey, 505 U.S. 833, 846,
871 (1992). Moreover, after viability, the Constitution protects the right to an abortion
that is necessary to protect or preserve the life or health of the pregnant woman. Roe
v. Wade, 410 U.S. at 163-64; Planned Parenthood v. Casey, 505 U.S. at 879.

       While the New York Penal Law, written before these decisions, does not on its
face treat abortions after 24 weeks from the commencement of pregnancy as lawful
when the fetus is nonviable or the procedure is necessary for the health of the pregnant
woman, exceptions for abortions in these two circumstances must be read into the law
to save its constitutionality. This approach to interpreting the law is consistent with
the long-established principle that statutes should be read where possible to save their
constitutionality. See, e.g., In re Donald DD, 24 N.Y.3d 174, 189 (2014); In re Bell v.
Waterfront Com’n of N.Y. Harbor, 20 N.Y.2d 54, 62 (1967); Robert Dollar Co. v.
Canadian Car & Foundry Co., 220 N.Y. 270, 277-78 (1917).

        The New York Penal Law states that an abortion is a crime unless it is a
“justifiable abortional act,” and provides that in order to be justifiable, an abortional
act 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.” Penal Law § 125.05(3).

       But 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. Roe v. Wade, 410 U.S. at 163-65;
Planned Parenthood v. Casey, 505 U.S. at 879. Therefore, an additional exception for
preserving health must be read into subsection (a) of the statute for it to pass
constitutional muster.

       Likewise, the Court has made 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. Planned
Parenthood v. Casey, 505 U.S. at 870, 871; Planned Parenthood v. Danforth, 428 U.S.
52, 64 (1976); see also Colautti v. Franklin, 439 U.S. 379, 388-89 (1979). Therefore, an
exception must be read into subsection (b) of the statute for the situation of a fetus
determined to be nonviable after 24 weeks from the commencement of pregnancy.

      If these exceptions were not read into the statute, it would to that extent be
unconstitutional, with essentially the same result. Reading these exceptions into
Penal Law § 125.05, rather than interpreting it to be unconstitutional, in whole or in
part, respects the Legislature’s intent to prohibit certain abortions under some
circumstances while presuming that it intended such prohibition to accord with rights
granted by the Constitution.

                                        Very truly yours,

                                        ERIC T. SCHNEIDERMAN
                                        Attorney General
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