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New York's governor has a backup plan in case the Supreme Court overturns Roe v. Wade

Gov. Andrew Cuomo wants to write Roe v. Wade into the state’s constitution. It’s more than a symbolic gesture.

New York Gov. Andrew Cuomo announced Monday that he will propose an amendment to codify Roe v. Wade, the 1973 Supreme Court decision that legalized abortion, into the New York state constitution.

“Our rights are under attack in Washington. And as they seek to limit women’s rights, we in New York seek to protect them,” Cuomo said. “And as they threaten this nation with a possible Supreme Court nominee who will reverse Roe v. Wade, I want them to know today if that’s what they do, we’re going to protect Roe v. Wade in the state of New York.”

Cuomo made his announcement in front of 1,600 advocates, including Planned Parenthood president Cecile Richards, at an "I Stand with Planned Parenthood" rally and Family Planning Advocates' Day of Action in New York on Monday.

This isn’t the first proactive gesture Cuomo has taken to protect reproductive rights in New York; he recently announced new regulations that will make sure insurers based in New York state to continue to offer comprehensive birth control access with no copays, even if the Affordable Care Act’s birth control benefit goes away. The regulations also ensure coverage for medically necessary abortions with no copays.

Cuomo is urging other pro-choice governors and state legislatures to take similar steps to protect women’s health in the age of Trump, and it’s likely that many will.

This isn’t just a symbolic gesture

It’s not terribly likely that Roe v. Wade will be overturned during Trump’s first term, or even his theoretical second, as I’ve explained — but it’s certainly possible. It all depends on how many conservative justices Trump is able to confirm, whether the Court takes up the right case, and how willing the justices are to overturn a case with such well-established precedent in American jurisprudence.

But if Roe v. Wade ever were overturned, the effects would be immediate in the 19 states that have more restrictive, but currently unenforceable, abortion laws on the books. Meanwhile, seven states (California, Connecticut, Hawaii, Maine, Maryland, Nevada, and Washington) have specific state-level protections for abortion rights on the books as a sort of Roe v. Wade backup plan.

It turns out that even New York, a blue state with strong pro-choice policies, has an outdated, pre-Roe law on the books that is somewhat more restrictive than Roe. And sometimes that law is enforced in a way that harms women, even though it really shouldn’t be.

The law in question legalized abortion in 1970, three years before Roe was decided in 1973. That law also banned abortion after 24 weeks of pregnancy unless the woman is literally dying.

Under Roe, however, abortion must always be allowed to protect the woman’s life and her broader health. Roe also has no cutoff based on the number of weeks a pregnancy has progressed; the dividing line is fetal viability, which doesn’t happen at the same point in every pregnancy. That also means even late abortion is permitted if a doctor determines that a fetus isn’t viable, due to severe anomalies or other reasons.

According to a new report from the New York Civil Liberties Union (NYCLU), this law has made women suffer needlessly by not being able to get an abortion they need in their home state.

“I thought, this is totally crazy. We live in New York, after all, and my baby is not viable. Yet, I still can’t have this done in a supposedly progressive state,” said Erika Christensen, 35, in the report. Christensen learned 31 weeks into her pregnancy that her baby would not survive. But since fetal anomalies aren’t exempted in New York’s 24-week ban, she had to fly to Colorado and pay $25,000 cash to end the pregnancy.

The NYCLU report urges legislators to codify Roe v. Wade as a solution to this problem. Cuomo’s amendment would do that if it passed — but while it would be more permanent than a legislative fix, it would also take a lot longer.

After Cuomo proposes the amendment, both chambers of the state legislature have to approve it — and not just this session of the legislature, but the next one as well. If the current legislature approved the amendment, a new set of lawmakers would also have to approve it after their next session starts in 2019. Finally, after all that, a majority of New Yorkers must approve the amendment at a ballot referendum.

But if the amendment passes, it will have a real impact on abortion access in the state — both if Roe v. Wade is overturned and if it remains the law of the land.

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