15 Oct 2021 New York Defies Texas Attack on Women’s Right to Choose

As an onslaught of state anti-abortion legislation threatens U.S. women’s rights, including an onerous new Texas law that effectively bans all abortions even in cases of rape or incest, New York’s new governor has vowed to make her state a “safe harbor” where women’s health and wellbeing are protected.

Last month, as women across the United States gathered in protest of Texas’s SB 8 and a storm of other state laws aimed at overturning the landmark 1973 case, Roe v. Wade, that established a woman’s constitutional right to choose, New York Governor Kathy Hochul stood with them.

“Abortion access is safe in New York; the rights of those who are seeking abortion services will always be protected here…,” Governor Hochul said at a pro-choice rally in Brooklyn on September 9, as reported by New York Daily News. “To the women of Texas, I want to say I am with you. Lady Liberty is here to welcome you with open arms.

“This is a fight I thought ended when my mother was starting out as a parent, as a young person,” Hochul continued. “I had no idea that all these years later we’d be fighting the same fight that grandma and my mom fought, and my own daughter has her own rights threatened by crazy people in places like Texas.”

Hochul, who succeeded former Governor Andrew Cuomo following his resignation in August amid sexual harassment charges, outlined a series of steps the state will take to protect women’s reproductive rights, including:

• A statewide public information campaign, including the development and publicization of a “patients’ bill of rights,” outlining women’s guaranteed rights and legal protections, in multiple languages, to be distributed in New York doctor’s offices and clinics;
• Updated, comprehensive guidance for providers of reproductive health services on their rights to provide abortion care;
• Updated regulations to make medication abortion accessible via telehealth visits.

Hochul was joined by scores of activists and New York elected officials, including New York City Mayor Bill DeBlasio and Brooklyn Borough President and Democratic New York City Mayor candidate Eric Adams.

Adams said anti-abortion activists have falsely laid claim to the term “pro-life,” when their actions are anything but, Daily News reported. “They put a bounty—$10,000—a bounty on someone who tries to get an abortion or goes to an abortion clinic but won’t give $10,000 to a single mother trying to survive right now, a single mother being evicted,” he said.

Meanwhile, the Supreme Court has agreed to hear another Roe v. Wade challenge, a Mississippi law that would ban abortion after 15 weeks—well before the 20- to 24-week guideline for fetal viability outside the womb that has been legal precedent since 1973. The court is expected to hear oral arguments in December, with a possible decision in April 2022. However, historically, the court has announced rulings in abortion cases in June.

Not Just Abortion: Fertility Treatment at Risk

My colleagues and associates in the assisted reproduction field are concerned.

Many Americans assume the fight over women’s right to choose is one-dimensional issue: Should a woman have the right to choose an abortion or not? Many people, who already have families or who are past reproductive age, assume the outcome will have little impact on them personally.

But the barrage of state abortion bans and the threats to U.S. constitutional protections for women also threaten individuals’ rights to many types of fertility treatment, including assisted reproduction technologies such as in vitro fertilization, fertility preservation, and surrogacy.

Many of the recent state laws restricting abortion, most of which have been prevented from taking effect because they are unconstitutional under Roe, are based in the argument that life and even legal personhood begins at conception. If such laws are enacted, and that legal precedent established, many fertility treatment procedures, such the harvesting and fertilization of eggs, selection of the strongest embryos for implantation, cryopreservation or disposal of unused embryos, and possibly egg and sperm donation could become illegal in those states.

ART professionals are working together now to prepare for future legal obstacles and to determine how best to support our clients—the countless couples and single people who hope to realize their dreams of parenthood through these miraculous, life-giving technologies.

I recently helped organize an expert panel, “Abortion and the New Supreme Court,” for the American Bar Association Family Law Section continuing legal education conference, where we had the privilege of hearing from Liz Wagner, an attorney with the Center for Reproductive Rights, which has joined the ACLU and Planned Parenthood in challenging the Mississippi and Texas abortion laws.

The presentation of challenges and existential questions raised by the ongoing attack on abortion rights was eye-opening. Is the right to have a child using assisted reproduction protected under the U.S. Constitution? When does the government’s right to regulate or prohibit assisted reproduction outweigh the individual’s right to use the technology to have a child? Is an embryo a legal person? If so, when does it become a person?

Procreation and fertility are deeply personal and emotional issues, while opposition to legal abortion has been politicized for decades, cynically used as a wedge issue to mobilize socially conservative voters. Our nation struggles with these questions during a time when Americans are pitted against one another over politics and public health. Do those determined to ban abortion understand the underlying impact on infertile couples seeking treatment or young people seeking to preserve their future ability to procreate in the face of invasive cancer treatment? Do ordinary Americans understand that the promise of parenthood offered by increasingly effective assisted reproductive technologies may be denied them or their children if laws such as SB 8 are allowed to stand?

Along my colleagues in the field, our experienced team of fertility attorneys and paralegals at IFLG are watching carefully, determined to do our best to guide our client intended parents, surrogates and donors as events unfold. Over the next weeks and months, we will be addressing the attack on reproductive rights and the questions raised about the true impacts on individuals, parents and families. We hope you will keep reading.