Could an abortion in New York performed after 24 weeks be lawful when the fetus was not viable, or when the procedure was needed to protect the pregnant woman's health, even though the Penal Law's text only excused abortions necessary to save her life?

Plain-English summary

New York's Penal Law had been written before Roe v. Wade. On its face, § 125.05(3) treated abortion as a crime unless the procedure was either (a) necessary to preserve the pregnant woman's life or (b) within 24 weeks of the start of pregnancy. So a literal reading would treat as criminal an abortion done after 24 weeks where the fetus was non-viable or the procedure was needed to protect (rather than save) the woman's life. That conflicted with Roe and Casey.

The State Comptroller asked the AG how to handle that conflict, because the Comptroller audits state payments to providers performing abortions and needs to know what counts as a "lawful" procedure. AG Schneiderman concluded that the statute had to be read with two implicit exceptions: one for procedures necessary to preserve the woman's health, and one for abortions of non-viable fetuses even after 24 weeks. Reading the exceptions in saved the statute's constitutionality and respected the Legislature's evident intent to prohibit some, but not all, abortions, in line with the federal constitutional rules then in force.

This is an example of the canon of constitutional avoidance: when a statute's text would, if read literally, conflict with the Constitution, courts and AGs read it (where possible) to be consistent with the Constitution rather than declare it unconstitutional.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The legal landscape this opinion sat in has shifted substantially. Two anchor points in the federal background, Roe v. Wade and the Casey "undue burden" framework, were overruled by the U.S. Supreme Court in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), which left abortion regulation to the states. New York's own legislative response, the Reproductive Health Act (2019), repealed the older Penal Law abortion provisions and moved abortion regulation into the Public Health Law, codifying many of the protections the 2016 opinion had read into the statute by interpretation. A reader looking at New York abortion law in 2026 should start with current Public Health Law and the Reproductive Health Act, not with this 2016 opinion.

Historical context

What the opinion meant for state agencies

The Comptroller, who triggered the opinion, needed to know whether a Medicaid or other state-paid abortion procedure was "in accord with the law" for audit purposes. The AG's answer was that procedures fitting either of two implied categories, health preservation or non-viable fetus, were lawful in New York even after 24 weeks. State payments for those procedures could be approved.

What the opinion meant for healthcare providers

A 2016 New York provider who performed an abortion after 24 weeks for an indication beyond saving the woman's life (for example, a non-viable fetus or a serious threat to maternal health) was, on the AG's reading, acting within state law. The Penal Law's literal text was not the operative rule; the Constitution-required reading was.

Why this opinion mattered as legal craft

The opinion is a clean illustration of the constitutional-avoidance canon. Rather than declare the statute partially unconstitutional, the AG read the necessary exceptions into the statutory text, citing New York Court of Appeals precedent (In re Donald DD, In re Bell, Robert Dollar Co.) treating that approach as a default for ambiguous or unconstitutionally-broad criminal statutes.

Common questions

Q: Did this opinion change the Penal Law?
A: No. The Legislature did not amend the statute as a result. The AG's reading was a guide to enforcement and audit officials. The Penal Law sections in question were later effectively repealed when the Reproductive Health Act of 2019 moved abortion regulation into the Public Health Law.

Q: What did "viability" mean for the AG's analysis?
A: The opinion adopts the Casey/Danforth rule that viability is determined by the attending physician based on appropriate medical judgment, not by a fixed gestational age. The 24-week mark in § 125.05 was therefore not a constitutional cutoff for non-viable fetuses; the AG read the statute to permit later procedures where the fetus was non-viable.

Q: Is this opinion still good law after Dobbs (2022)?
A: The constitutional underpinnings cited (Roe, Casey) were overruled in Dobbs. New York's own statutory framework changed in 2019 with the Reproductive Health Act. So the opinion's result (some post-24-week abortions are lawful in New York for health and viability reasons) matches current New York law, but the reasoning path (federal constitutional command read into Penal Law) has been superseded by direct state statutory authorization.

Q: What is constitutional avoidance?
A: The canon that when a statute is ambiguous or its literal reading would render it unconstitutional, a court (or in this case an AG) should adopt a saving construction, not invalidate the statute. The opinion cites In re Donald DD and other New York Court of Appeals decisions for the proposition.

Q: Why was the State Comptroller asking?
A: Article V, § 1 of the New York Constitution gives the Comptroller authority to audit state payments. State Medicaid and other state-funded healthcare reimbursements include abortion services. The Comptroller's duty to confirm that payments comply with law required clarity on what counted as a "lawful" abortion under state law.

Background and statutory framework

Penal Law § 125.05(3), as enacted long before Roe, defined a "justifiable abortional act" as one performed either "(a) under a reasonable belief that such is necessary to preserve [the pregnant woman's] life, or, (b) within twenty-four weeks from the commencement of her pregnancy." Read literally, the statute criminalized any post-24-week abortion that was not life-saving, even where the fetus was non-viable or the procedure was needed for the woman's health.

Federal constitutional doctrine at the time held two relevant rules:
1. Roe v. Wade, 410 U.S. 113 (1973), and Casey, 505 U.S. 833 (1992), protected abortion access pre-viability against any "undue burden."
2. After viability, the state may regulate abortion but may not prohibit it where necessary to preserve the woman's life or health.
3. Casey, Danforth, and Colautti required viability determinations to be made by the attending physician on appropriate medical judgment.

The AG synthesized these federal rules with the state Penal Law via constitutional avoidance, reading exceptions into the statute rather than striking it. The supporting New York authority for that approach included In re Donald DD, In re Bell, and Robert Dollar Co., all of which endorsed saving constructions of state statutes to avoid constitutional infirmity.

Citations and references

Statutes:
- N.Y. Penal Law § 125.05(3) (justifiable abortional act)
- N.Y. Const. art. V, § 1 (State Comptroller's audit power)

Cases:
- Roe v. Wade, 410 U.S. 113 (1973) (federal constitutional protection for pre-viability abortion access)
- Planned Parenthood v. Casey, 505 U.S. 833 (1992) (undue-burden framework; viability rule)
- Planned Parenthood v. Danforth, 428 U.S. 52 (1976) (viability determined by attending physician)
- Colautti v. Franklin, 439 U.S. 379 (1979) (same)
- In re Donald DD, 24 N.Y.3d 174 (2014) (constitutional avoidance in New York)
- In re Bell v. Waterfront Com'n of N.Y. Harbor, 20 N.Y.2d 54 (1967) (same)
- Robert Dollar Co. v. Canadian Car & Foundry Co., 220 N.Y. 270 (1917) (same)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2016-f1_pw_1.pdf

Original opinion text

Penal Law § 125.05(3)

To accord with precedent of the United States Supreme Court, Penal Law § 125.05 must be read to include an exception to preserve a pregnant woman's health and to allow an abortion of a nonviable fetus after 24 weeks.

September 7, 2016

Nancy G. Groenwegen, Counsel
Office of the State Comptroller
110 State Street, 14th Floor
Albany, New York 12236

Formal Opinion
No. 2016-F1

Dear Ms. Groenwegen:

You have asked whether an abortion can be lawful in New York when performed after 24 weeks from the commencement of pregnancy and not necessary to save the life of the pregnant woman. You raise this question because the New York Penal Law appears to criminalize all abortions performed after 24 weeks from the commencement of pregnancy unless necessary to save the life of the pregnant woman, but some such abortions, where the fetus is not viable or the procedure is necessary to protect the woman's health, are protected by the United States Constitution as interpreted by the United States Supreme Court. You have an interest in the answer to this question because the Comptroller, performing his duty under Article V, section 1 of the State Constitution, audits state payments to health care service providers who perform abortions to ensure that the payments are proper and in accord with the law. You recognize that federal constitutional law appears to allow abortions that the New York Penal Law prohibits and you believe that the federal Constitution is controlling.

New York law cannot criminalize what the federal Constitution protects, and thus the Penal Law should be interpreted to be consistent with the Constitution. Accordingly, as explained below, an abortion performed after 24 weeks from the commencement of pregnancy is lawful in New York when the fetus is not viable or when the abortion is necessary to protect the health of the pregnant woman, even though the Penal Law contains no express exemptions for those circumstances.

The United States Supreme Court held in 1973 that until approximately the end of the first trimester, a woman has a right to an abortion free from state interference, and until the point of viability that right is subject to state regulation only for the protection of the woman's health. Roe v. Wade, 410 U.S. 113, 163 (1973). The Court further held that after viability a state may not proscribe abortion when it is necessary to preserve the life or the health of the pregnant woman. 410 U.S. at 163-64. While the Court modified its trimester analysis in 1992, it reaffirmed that before viability a state may not constitutionally impose any "undue burden" on the constitutionally protected right to choose abortion. Planned Parenthood v. Casey, 505 U.S. 833, 846, 871 (1992). Moreover, after viability, the Constitution protects the right to an abortion that is necessary to protect or preserve the life or health of the pregnant woman. Roe v. Wade, 410 U.S. at 163-64; Planned Parenthood v. Casey, 505 U.S. at 879.

While the New York Penal Law, written before these decisions, does not on its face treat abortions after 24 weeks from the commencement of pregnancy as lawful when the fetus is nonviable or the procedure is necessary for the health of the pregnant woman, exceptions for abortions in these two circumstances must be read into the law to save its constitutionality. This approach to interpreting the law is consistent with the long-established principle that statutes should be read where possible to save their constitutionality. See, e.g., In re Donald DD, 24 N.Y.3d 174, 189 (2014); In re Bell v. Waterfront Com'n of N.Y. Harbor, 20 N.Y.2d 54, 62 (1967); Robert Dollar Co. v. Canadian Car & Foundry Co., 220 N.Y. 270, 277-78 (1917).

The New York Penal Law states that an abortion is a crime unless it is a "justifiable abortional act," and provides that in order to be justifiable, an abortional act must be performed either "(a) under a reasonable belief that such is necessary to preserve [the pregnant woman's] life, or, (b) within twenty-four weeks from the commencement of her pregnancy." Penal Law § 125.05(3).

But the United States Supreme Court has made clear that an abortion is constitutionally protected if it is necessary in appropriate medical judgment to preserve the pregnant woman's life or her health. Roe v. Wade, 410 U.S. at 163-65; Planned Parenthood v. Casey, 505 U.S. at 879. Therefore, an additional exception for preserving health must be read into subsection (a) of the statute for it to pass constitutional muster.

Likewise, the Court has made clear that the right to choose abortion is constitutionally protected from undue burdens until viability, and that the determination of viability must be made by the attending physician. Planned Parenthood v. Casey, 505 U.S. at 870, 871; Planned Parenthood v. Danforth, 428 U.S. 52, 64 (1976); see also Colautti v. Franklin, 439 U.S. 379, 388-89 (1979). Therefore, an exception must be read into subsection (b) of the statute for the situation of a fetus determined to be nonviable after 24 weeks from the commencement of pregnancy.

If these exceptions were not read into the statute, it would to that extent be unconstitutional, with essentially the same result. Reading these exceptions into Penal Law § 125.05, rather than interpreting it to be unconstitutional, in whole or in part, respects the Legislature's intent to prohibit certain abortions under some circumstances while presuming that it intended such prohibition to accord with rights granted by the Constitution.

Very truly yours,

ERIC T. SCHNEIDERMAN
Attorney General