VMM partner Joseph Trotti, head of the firm's Matrimonial and Family Law practice, founding partner of the VMM Family InstituteSM, and member of the Surrogacy, Adoption, and Assisted Reproduction and LGBTQ Representation practices, was invited by AM New York to write an op-ed on what the Roe v. Wade overturn means for New Yorkers.
The article appeared in print yesterday. It can be found online here and below.
Op-Ed | Roe v. Wade overturned – what it means for New Yorkers
By Joseph Trotti, Esq.
The decision to overturn Roe v. Wade means that there is no longer a constitutional, federally protected right to an abortion in the United States. Instead, each state now sets its own agenda, including outright banning. New Yorkers’ access to abortion is protected, but the decision will undoubtedly affect New Yorkers.
On June 24, the Supreme Court overruled in Dobbs v. Jackson Women’s Health Organization the longstanding precedent set in 1973’s Roe v. Wade, which famously established the constitutional right to an abortion.
This doesn’t lead to a nationwide ban on abortions, but about half the states now restrict or criminalize them, with more actively working to legislate similar laws. Some states have bans that predate Roe v. Wade and could resume enforcement right away. Some states have “trigger laws,” written and passed specifically to ban abortion immediately in the event Roe v. Wade is ever overturned. Others simply have old laws that were rendered moot in 1973 but were never repealed and are now back in effect.
Many of these laws are without precedent or a clear method of enforcement or seem to contradict other laws. Their implications will become clear in the coming months and years.
In New York State, abortions are legal up to 24 weeks of pregnancy, or later if a fetus isn’t viable or to protect the mother’s life. Laws protecting New Yorkers seeking and providing abortions date back to 1970, with a flurry of efforts by state officials to further ensure abortion access taking place since the SCOTUS draft opinion leaked in May.
The first way in which the overturn will affect New Yorkers is the likely influx of out-of-state women seeking abortions, especially from neighboring states like Pennsylvania and Ohio.
It’s currently legal to cross state lines to get an abortion, and New York laws shield out-of-state patients and the health care providers that serve them from legal action by other states. They cannot be arrested, extradited, or subpoenaed (in most cases).
However, some states are considering—though not yet actively pursuing—passing laws regarding travel across state lines for abortion care. This sets up the potential for legal fights between New York and other states, including over whether providers and those who help women obtain abortions can be sued or prosecuted.
Family health care for New York residents will potentially also be affected, as the influx could tax the system, creating longer wait times and a shortage of providers, supplies, and public funding. The ratio of abortions in New York provided to out-of-state residents has already tripled in the last decade.
New Yorkers seeking to start or expand their family through surrogacy will also be affected. Gestational surrogacy has only been legal in New York since February 15, 2021, and many, if not most, of the surrogates live outside the state, leading to a number of unanswered questions regarding the rights of both surrogates and expected parents.
Vice President Kamala Harris has argued that the Court’s decision might allow states to also restrict in vitro fertilization and prohibit contraception like intrauterine devices and morning-after pills, under the argument that human life begins at fertilization.
LGBTQ New Yorkers would also be impacted by surrogacy restrictions in other states, and advocacy organizations have expressed concern that the overturn would stir conservative groups to next attack established gay rights.
The concern is not unfounded; in an opinion concurring with the 6-to-3 majority decision to overturn Roe v. Wade, Justice Clarence Thomas wrote that the Court’s landmark rulings in 1965’s Griswold v. Connecticut, which established the right of married couples to obtain contraceptives, 2003’s Lawrence v. Texas, which established the right to private sexual acts, and 2015’s Obergefell v. Hodges, which established the right of same-sex individuals to marry, were “demonstrably erroneous decisions” and should be reconsidered, effectively calling for cases to be brought up before the Court to challenge them.
Joseph Trotti is the head of Vishnick McGovern Milizio LLP’s Matrimonial and Family Law practice and founding partner of the VMM Family Institute℠. He can be reached at firstname.lastname@example.org and 212.759.3500.