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Ciara O'Rourke
By Ciara O'Rourke February 1, 2019

No, New York abortion law doesn't let mothers abort babies a minute before they would be born

On Jan. 22, New York Gov. Andrew Cuomo signed abortion legislation that its advocates say codifies Roe vs. Wade into state law.

The Reproductive Health Act, sponsored by Democratic state Sen. Liz Krueger, says that a health care practitioner "may perform an abortion when, according to the practitioner’s reasonable and good faith professional judgment based on the facts of the patient’s case: the patient is within twenty-four weeks from the commencement of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health."

Previously, women in New York could only get abortions after 24 weeks of pregnancy if their lives were threatened, according to Justin Flagg, a spokesman for Krueger.

Under the new law, he said, women can also get an abortion after 24 weeks if their health is threatened or the fetus isn’t viable.

That was the standard set by the 1973 Supreme Court decision, Flagg said, but the discrepancy between the state and federal laws "meant that many women have been forced to go out of state to get necessary medical care after 24 weeks."

The New York law is part of a trend: In states where many people favor abortion rights, legislatures are moving to make the Roe vs. Wade standard part of state law.  

"With the signing of this bill, we are sending a clear message that whatever happens in Washington, women in New York will always have the fundamental right to control their body," Cuomo said.

New York’s new law has alarmed abortion opponents, who see the exceptions of Roe — the health or life of the mother — as something that could apply to any pregnancy for any reason.

The law "will expand our state’s already radically permissive law, by empowering more health practitioners to provide abortion and removing all state restrictions on late-term procedures," said the state’s Catholic bishops in a statement.

Online, abortion opponents have crafted many Facebook messages about the New York law. One post from Jan. 23 attacked it by suggesting it allowed murdering babies a minute before they would otherwise be born.

"I was born at 12:05," reads the text over a photo of a smiling infant. "In New York, it is now perfectly legal to murder me at 12:04."

This post is not accurate, though it has been shared more than 5,500 times and was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook.)

Featured Fact-check

Is the post correct that women can get abortions the minute before a baby would be born?

Flagg called such a situation "absurd."

"If a healthy baby is born at 12:05, the only thing happening at 12:04 is labor," he said. "If it is a vaginal birth, the baby’s head would likely have been crowning for several minutes, and the labor itself going on for several hours or even days. In a caesarean delivery, the mother would have been prepped for surgery for some time."

But a C-section is not always possible, said Danielle Castaldi-Micca, vice president of political and government affairs at the National Institute for Reproductive Health, an organization that advocates for abortion rights. It’s possible the abdominal surgery would endanger the mother’s life or health, she said.

Jen Villavicencio, an ob-gyn in the Midwest who provides abortions, said in a statement to PolitiFact that the post is "inaccurate."

"Abortions are not performed at 40 weeks on healthy, viable pregnancies," she said. "Overwhelmingly, abortions that occur at this point in pregnancy are pregnancies where lethal fetal anomalies have been diagnosed."

In some cases, she said, complications aren’t detected or haven’t developed until the third trimester. Doctors may ask patients if they want to continue the pregnancy and deliver a "nonviable fetus," she said, or have an abortion. There are situations where abortion is necessary to save the mother’s life, Villavicencio said. "However, if a mother’s life is at risk and she is pregnant with a viable fetus, most often delivery is pursued, not abortion. The care becomes about saving both the life of the mother and the fetus."

Third-trimester abortions account for "far less than 1 percent of abortions," she said. Data back that up. The Guttmacher Institute finds that "slightly more than 1 percent of abortions are performed at 21 weeks or later." And in a study of abortions in the United States in 2015, the Centers for Disease Control and Prevention, reported that 1.3 percent of abortions happened at 21 weeks gestation or later.

Finally, the New York law is codifying on a state level what already existed in federal law.  

Our ruling

The Facebook post oversimplifies and distorts what the New York law allows.

The Reproductive Health Act permits abortion after 24 weeks of pregnancy only if the mother’s life or health are threatened or if the fetus isn’t viable. The post doesn’t make clear significant restrictions still apply to the new law; rather, it gives the opposite impression.

We rate this post False.

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A New York law makes it "now perfectly legal to murder" a baby a minute before it would be born.
Wednesday, January 23, 2019

Our Sources

Facebook post, Jan. 23, 2019

Senate Bill S240, visited Jan. 25, 219

New York Governor’s website, "Governor Cuomo signs legislation protecting women’s reproductive rights," Jan. 22, 2019

U.S. Department of Justice, murder definition, visited Jan. 28, 2019

Email interview with Justin Flagg, spokesman for New York Sen. Liz Krueger, Jan. 26, 2019

Interview with Danielle Castaldi-Micca, vice president of political and government affairs, National Institute for Reproductive Health, Jan. 28, 2019

Email interview with Susan Yanow, consultant, Later Abortion Initiative, Jan. 25, 2019

Guttmacher Institute, Abortion policy in the absence of Roe, Jan. 1, 2019

Statement from Jen Villavicencio, ob-gyn, Jan. 28, 2019


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No, New York abortion law doesn't let mothers abort babies a minute before they would be born

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