New York’s recently-passed Reproductive Health Act (RHA) is one of the more progressive pieces of pro-choice legislation to be passed in recent years. Under the RHA, outdated anti-abortion legislation was repealed, including legislation that put abortion in the criminal code. Additionally, restrictions on abortion were removed through 24 weeks of pregnancy, with abortions occurring after 24 weeks allowed in cases where the health of the pregnant person was at risk or the fetus was not viable. Finally, the number of trained medical professionals permitted to perform abortions expanded to nurses, physician’s assistants, and midwives.
Both before and after its passage, anti-abortion groups worked to find ways to attack the legislation. At first, these groups focused on the inflammatory and wildly false claim that the RHA “legalize[d] infanticide.” This alarmist rhetoric put pregnant people and abortion providers at risk by comparing abortions later in pregnancy to a criminal act and provoking outrage from anti-abortion activists. However, after a man murdered his pregnant girlfriend in New York, anti-abortion leaders changed tactics, claiming instead that the RHA won’t punish those who harm pregnant people and thereby cause them to miscarry. They focus specifically on the idea that, under the RHA, domestic abusers will be able to get away with causing their partners to miscarry as a result of their abuse.
Before the passage of the RHA, those who intentionally caused pregnant people to miscarry were charged with “unlawful abortion.” Laws such as these are unnecessary because there are assault laws not specific to pregnancy that can be used to prosecute those who harm pregnant people without implying that the fetus is a person whose rights can be weighed against those of the person carrying the pregnancy. So how are these types of laws used? According to the Guttmacher Institute, a number of people have been charged with “unlawful abortion” for self-managing their own abortions. Although sentences for unlawful abortion vary, the maximum sentence under the now-repealed New York law was four years in prison. As seen in the Guttmacher study, legislation like this has been used by anti-abortion leaders and politicians to punish pregnant people for taking charge of their reproductive health.
Under the RHA, this unlawful abortion charge no longer exists. However, in an editorial about the RHA, New York State Senators Liz Kreuger and Anna Kaplan state that the RHA will allow those who cause a pregnant person to miscarry through an act of violence to be tried on a charge of first-degree assault, which carries a penalty of up to 25 years in jail, a sentence over six times greater than that associated with the unlawful abortion charge. Additionally, in the recent New York case referenced earlier in which a man killed his pregnant girlfriend that anti-abortion activists are purposefully using to distort and fear-monger, it is highly unlikely an unlawful abortion charge would have had any impact on sentencing, since the second-degree murder charge takes precedent.
The anti-abortion claim that the RHA won’t punish those who use violence to cause others to miscarry is both false and dangerous. Anti-abortion activists are hiding behind their supposed love of women and using the trauma of assault to attempt to regulate abortion access and paint bills like the RHA as harmful to pregnant people. At a time when Roe v. Wade is at high risk of being overturned or gutted, which would open up the possibility of more people being jailed for taking charge of their reproductive care with self-managed abortion, it is important for pro-choice activists to spread the truth about legislation such as the RHA. The RHA does not allow abusers to escape consequences; instead, it prevents pregnant people from being charged with a crime when they take charge of their reproductive health and self-manage their abortions.