Untitled New York Attorney General Opinion, 2016-F1

The Office of the State Comptroller asked whether abortions performed after 24 weeks from the commencement of pregnancy can be lawful in New York when not necessary to save the woman’s life, given apparent conflict between Penal Law § 125.05(3) and U.S. constitutional protections.
Penal Law § 125.05(3) criminalizes abortions except when performed (a) under a reasonable belief that necessary to preserve the woman’s life, or (b) within 24 weeks from commencement of pregnancy.
U.S. Supreme Court precedents recognize a constitutional right to abortion before viability and permit regulation only after viability so long as abortions necessary to preserve the woman’s life or health remain allowed.
The opinion reasons that New York law cannot be interpreted to criminalize constitutionally protected abortions and therefore must be read to include exceptions required by federal law.
The Attorney General concludes that § 125.05(3) must be read to permit post-24-week abortions when the fetus is nonviable or when the procedure is necessary to protect the pregnant woman’s health.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 125.05(3) permits abortions after 24 weeks when necessary to protect the woman’s health	Federal constitutional law protects abortions necessary to preserve life or health; statute must allow health exception	Penal Law facially only mentions life or within 24 weeks, no explicit health exception	Read a health-preserving exception into subsection (a) to conform with Roe/Casey
Whether § 125.05(3) permits abortions after 24 weeks for a nonviable fetus	Viability determinations by physician and pre-viability protections require exception for nonviable fetuses even after 24 weeks	Statute prohibits abortions after 24 weeks except to preserve life, lacking explicit nonviability exception	Read an exception into subsection (b) for nonviable fetuses determined by attending physician

Roe v. Wade, 410 U.S. 113 (constitutional protection for abortion before viability; post-viability abortions allowed to preserve life or health)
Planned Parenthood v. Casey, 505 U.S. 833 (reaffirmed pre-viability protections and undue-burden standard; viability determined by physician)
Planned Parenthood v. Danforth, 428 U.S. 52 (physician-determined viability and related standards)
Colautti v. Franklin, 439 U.S. 379 (discussion of viability and standards for statutory restrictions)
In re Donald DD, 24 N.Y.3d 174 (New York canon: read statutes to preserve constitutionality)
In re Bell v. Waterfront Com’n of N.Y. Harbor, 20 N.Y.2d 54 (same principle of saving statutes from unconstitutional readings)
Robert Dollar Co. v. Canadian Car & Foundry Co., 220 N.Y. 270 (statutory interpretation to preserve constitutionality)