Commentary Abortion

New York Forces Women Like Me to Carry Nonviable Pregnancies to Term

Erika A. Christensen

New Yorkers, we need to act quickly: There's a bill making its way through the state legislature that can help people like me, who are the faces of abortion statistics, to access the care we need in our home state.

In May of 2016, I had an abortion. I was 32 weeks pregnant. I then shared my story, anonymously, on Jezebel. I suppose this article at Rewire is kind of my “coming out,” and it’s so personal of an issue I’m getting hives thinking about the strangers—and more importantly non-strangers—who will read these words and thus know something so deeply private about me and my family.

While I am active on social media, I keep the world at arm’s length and guard my privacy. But it turns out privacy is a privilege. I no longer feel our current political climate allows me privacy, not when my silence creates a void. The absence of stories like mine leaves fertile ground for politicians to hijack my tragedy for their own ideological purposes. So now I am reluctantly putting my name to my story, to lend context to the fever-pitched rhetoric around the abortions that happen later in pregnancy. More importantly, though, the senate in my home state of New York—a state I fiercely love—has an opportunity to protect women like me in similar circumstances, and they’re about to botch it. Again.

My husband and I were thrilled last year to find out I was pregnant again after a miscarriage at ten weeks. After almost eight long months of learning one “extremely rare” and “totally random” complication after the next, we were told at 30 weeks that the baby’s growth had fallen off a cliff and that I had developed polyhydramnios, or high amniotic fluid levels. High fluid coupled with a lack of growth indicated that the baby was not swallowing. As our doctor was explaining this to us, putting the puzzle pieces of the past eight months together, he finally got to his point: “Swallowing is how the baby practices breathing on the outside. If he cannot swallow, he will not be able to breathe.”

He didn’t have to say the words “incompatible with life” at this moment because he could see in our horrified faces that we understood. When we asked what this would mean for our baby, he explained that if we decided to carry to term, and this is presuming I didn’t have a third-trimester miscarriage, the baby would live for only a short time before choking to death.

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When we heard this outcome for our baby, which sounded to us like suffering, we immediately wanted to know if there was any other option. This is when our doctor first mentioned the possibility of termination. Emotionally exhausted from months of hanging on to hope, we were heartbroken. My husband and I looked at each other with tears in our eyes, knowing immediately it was the most humane possible conclusion to this pregnancy.

But then we learned that our doctor would not be able to provide this care to us because abortions are illegal in New York after 24 weeks unless the life of the pregnant person is in immediate danger. We were shocked because, as we understood it, Roe v. Wade was supposed to protect people in instances such as ours, when my life or health was at risk or if the pregnancy wasn’t viable. Our doctor just said, “not in New York.”

At the time, the politics of the issue eluded us. All we knew was that we needed care, we were unable to receive that care in our state, and that we were racing a clock.

We were referred to Dr. Warren Hern in Colorado, one of four doctors in the entire country who will treat patients from out of state for later abortion care. Our doctor in New York assured us that “patients who have received care at this clinic have gone on to have healthy pregnancies, which we want for you.” I couldn’t remotely fathom ever putting myself through this again, but I nodded anyway. Due to a pre-existing health condition, my doctors decided the best course of action would be for me to fly to Boulder so Dr. Hern could administer a shot that would stop the baby’s heart. Then that same night I would fly back to New York, where I would be induced the next evening to deliver a stillbirth.

The shot alone cost $10,000, and we had to pay cash upfront because these procedures aren’t fully reimbursed by insurance companies. My mom gave us the money, taking it out of her retirement fund. We wondered why it was so expensive, but couldn’t figure out how to place a monetary value on Dr. Hern and his staff having to go to work behind bulletproof glass. It took two weeks to get all of my doctors on the same page and to coordinate our travel to the clinic in Boulder—last-minute flights, hotels, and a rental car from the airport in Denver, all paid for on credit cards.

At 32 weeks, a couple of days after Mother’s Day, my husband and I got on the plane to Colorado. Walking through airport security, a TSA agent congratulated me, gesturing to my stomach with a huge smile on his face. I offered a curt “thank you” as my husband squeezed my hand.

Once in Boulder, the care we received from Dr. Hern’s clinic was exceptional. He treated me with sympathy and respect, offering his condolences for my loss. When he had to give me an ultrasound, he turned the screen away, but not before first making sure it was OK to do so. Still in shock over this tragic turn of events, I lay on the table, looking up at the ceiling. My internal questions played like a tape over and over in my mind: Why am I here? Did New York expect me to carry this baby to term, only to watch him suffer and die?

Since then, I’ve tried to answer that second question. The only answer I’ve come up with is: yes.

Abortion was a criminal act in the United States in 1970 when New York state, as the local American Civil Liberties Union put it, “amended the state penal code to include a new clause allowing for a ‘justifiable abortional act,’ permitting abortions performed within 24 weeks from the commencement of pregnancy, and at any point during pregnancy when a woman’s life is in danger.”

When the law was written in 1970, this was considered progressive. Unfortunately, it was never updated after the Roe v. Wade decision in 1973. So today, abortion is still a crime in New York, but with exceptions.

The Roe decision hinged on the notion of viability, only allowing states to limit abortion access after a fetus was viable, which is generally considered around 24 weeks. In our case, our baby would never be viable. Roe also protected the right to an abortion in cases where the health of the pregnant person was threatened.

This left New York’s law inadequate and technically unconstitutional. Because while federal law is supposed to supersede state law, when New York hospital lawyers open the penal code and discover this discrepancy, they conservatively advise health-care providers to steer clear of later abortions, for fear of having their doctors thrown into jail. Sure, they’re just doing their job, but this results in critical denials of federally protected care.

Angry yet?

If, like me, you think abortion provisions belong in the health code, as opposed to the criminal code, and you understand there are extenuating circumstances that might necessitate an abortion after 24 weeks, then you will be equally angry to learn that the New York Senate has failed to move on legislation that would fix this for at least the past seven years.

The most recent version, a bill called the Reproductive Health Act (RHA), S2796, does three things to fix this: (1) It takes abortion out of the penal code and puts into public health law; (2) it allows for abortions after 24 weeks in cases of non-viability, and in cases where either the life or health of the woman is at risk; and (3) it allows for advanced practice clinicians (APCs) to administer abortion care within their scope of practice. In 1970 when the law in New York was written, nurse practitioners, physician’s assistants, or licensed midwives weren’t common, so in a way this just modernizes the law to reflect the rest of the health-care system. For instance, it is perfectly reasonable for these licensed medical professionals to administer an early abortion pill, in accordance with FDA guidelines. This is important because in more rural parts of the state and underserved areas, doctors are stretched thin and these APCs expand care, especially for the uninsured.

The RHA passed the New York State Assembly in January and is now at risk of dying in the senate before it is even given a vote.

When a bill comes to the senate, there are two paths to a vote: The senate majority leader can either bring it to the floor directly, where it’s debated and ultimately voted on, or they can put it through a committee, in this case the health committee, where it is debated behind closed doors. Then, the head of that committee decides if it’s brought to the floor. This means there are ultimately two gatekeepers who decide whether or not this bill is heard, debated, and voted on in the senate.

Currently, there are two male conservative Republicans who hold those keys for the Reproductive Health Act: Majority Leader Sen. John J. Flanagan (R) of the 2nd district, and the head of the Health Committee, Sen. Kemp Hannon (R) of the 6th district. And let’s be clear—I would never expect either of these men to vote for this bill themselves, and I imagine neither would their constituents. What I would expect is that they would bring this bill to the floor, as it has already passed one branch of government and deserves to move through to the next.

The constituents of other elected senators in New York should be able to make their voices heard on the bill. Not only do we need the RHA debated on the record, people here deserve to know where their representatives actually stand on reproductive rights. “Pro-choice” and “pro-life” labels are politically expedient, but hollow when untested. There are moderate Republicans currently in the senate who ran as pro-choice candidates, and it is time they prove it to their electorate.

If the bill is brought to a vote and then passed in the senate, Gov. Andrew Cuomo (D) would then have to sign the bill into law. The governor has expressed support for this legislation, and indeed has positioned himself as a champion of women and our reproductive rights, so there is no reason to think he would not sign it if passed.

Now is when I ask my fellow New Yorkers for your help. We have roughly five weeks before the end of the legislative session on June 21. It is crucial that we put pressure not only on Sens. Flanagan and Hannon, but all of our senators. With that, I offer five steps:

  1. Identify your district and senator here.
  2. Write/call your senator and express your support for the bill, and more importantly, for a vote on the bill.
  3. Get vocal on social media (RHAVote.com).
  4. Sign a reproductive health coalition’s petition. This petition will be printed and brought to the senate next month. Sign it by June 2.
  5. Focus on the whole state. Got a friend in the Hudson Valley? Their senator is on the fence. Know someone out on Long Island? That’s where Flanagan and Hannon’s districts are.

That’s my plea.

I ask you to consider me, and women like me who are the faces of abortion statistics. We are slowly inching out from the shadows, as angry as we are devastated. Only 1.3 percent of abortions happen after 22 weeks, but each of us has a unique story.

Then I ask you to consider the women in our state who cannot afford to become part of that number—who cannot afford to travel for this care and are forced to carry doomed pregnancies to term. Forced to put their health at risk and into very real scenarios where they are left to watch their babies suffer and die. And lest you think this hypothetical, I’ve talked to doctors who have absolutely had to watch patients go through this, which is why the RHA is supported by the American Congress of Obstetricians and Gynecologists.

And maybe most importantly, I implore you to question any narrative that requires you to consider women to be monsters for protecting their own health, or for offering a merciful end to an unviable pregnancy. These anti-abortion talking points are ideological rhetoric meant to divide us when we are at a critical juncture with reproductive rights at a state and federal level. New Yorkers, we need to act quickly.

Tell your senator in Albany that you trust women and their doctors to make health decisions for themselves. Demand that they finally bring the Reproductive Health Act to the floor for a vote. And be sure to let them know that if they cannot protect us, we will find representatives who will. The people of New York cannot wait.

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