Cuomo Says He Wants to Pass the Reproductive Health Act. But Does He Really Mean It?

In his State of the State speech in January, New York Governor Andrew Cuomo made passing the Women's Equality Act a centerpiece of his agenda for this year, including legislation protecting women's rights to safe abortion care. But his political allegiances make the fate of the bill unclear. Does he really support it, or is he trying to play both ends?

Governor Cuomo gives his 2013 State of the State address. SI Live

New York Governor Andrew Cuomo came out swinging in his State of the State speech on January 9th, laying out a progressive agenda for the next year that included a new commitment to women’s issues.

The governor called for passage of the Women’s Equality Act, a ten-point plan that would include steps toward establishing pay equity in the state, stronger policies on sexual harassment, housing and pregnancy discrimination, and protection of the right to an abortion. The governor, who is widely assumed to be preparing for a presidential run in 2016 or beyond, repeated “Because it’s her body, and it’s her choice” three times in the course of the speech, garnering applause from women’s and pro-choice groups in the audience.

In an interview, Andrea Miller, president of NARAL Pro-Choice New York, told Rewire, “We were thrilled to see that the governor recognizes that a woman doesn’t have equal opportunity if she doesn’t have the ability to protect her health or make reproductive health decisions.” In a statement, Rabbi Dennis S. Ross of Concerned Clergy for Choice said, “The Governor is taking the moral high ground, meanwhile politicians in Congress and state capitols across the nation are attacking access to birth control and safe, legal abortion.” M. Tracey Brooks, Family Planning Advocates of New York State President and CEO, called for lawmakers to stand by New York’s women and pass Cuomo’s plan quickly.

As a Democrat, Cuomo gets mixed reviews on his policies. He has long won praise from progressives for his work on marriage equality, for example, while the praise he gets on economic issues usually comes from conservatives. The governor had previously made protecting women’s right to choose a part of his platform, but the sweeping ten-point plan, covering economic issues like pay equity as well as a push on stronger protections for abortion rights, is new. 

At the core of this Women’s Equality Act is a piece of legislation that’s been waiting on the shelf in Albany since Eliot Spitzer was governor, two Democratic administrations ago. The Reproductive Health Act would strengthen protections for those who need abortions and the doctors who provide them; it’s been waiting since 2008 for a majority of both houses of the state legislature to drop it on the desk of a sympathetic governor for a signature. The story of this bill is both emblematic of what holds up strong pro-choice legislation in progressive states like New York, and a tale of New York’s particular brand of political dysfunction, where egos often trump party association and political ideals. 

What is the Reproductive Health Act? 

In 2007, New York State Assemblyman Richard Gottfried (D-Manhattan) explained to Rewire in a phone  interview, people in the pro-choice community were eager for the state to take a strong stand in favor of abortion rights. Governor Spitzer’s office proposed updating the state’s abortion law, and lawmakers, including Gottfried, worked with advocates to craft language that would strengthen protections for patients and doctors. 

Jordan Goldberg, State Advocacy Counsel at the Center for Reproductive Rights, called the state’s abortion law as it stands “antiquated” and told Rewire that it’s unconstitutional in its 1971 form, since it has been superseded by Roe v. Wade.  A fact sheet on existing law states:

In 1970, New York decriminalized abortion, three years before Roe v. Wade. It was one of the first states to do so. The law was visionary then, but today it is outdated and confusing. Current law does not contain the foundations upon which Roe was decided, including the fundamental right of women to make private medical decisions, nor does it take into account how abortion care is now provided.  The current law must be changed because under New York State’s present law, family planning and abortion are still treated as crimes in our statute books. Doctors should not have to fear prosecution because of the type of medicine they practice. It also lacks protections if a woman’s health is endangered. Furthermore, the current law is like icing on a cake; it has never been incorporated into NYS law, i.e. the batter. With one swift motion, it could be wiped away, and New York will be left with abortion being a crime as described in the penal code.

The Reproductive Health Act, as it is currently written, would make clear the state’s commitment to leading on reproductive health and rights. It would remove the abortion from the criminal code and put it in the health care code;  it would also strengthen the law beyond Roe, ensuring that should a conservative court majority overturn the decision, New Yorkers would still have access to legal, safe abortion care.

Back in the 1800s, Andrea Miller explained, most states passed laws making abortion a crime. New York was one of the first, in the early seventies, to change its criminal code to allow some abortions. “You are technically looking at the provision of abortion care being considered an exception to homicide, creating the concept of a justifiable homicide,” she noted. The text of the law deems “abortion in the first degree” a felony, and considers a “justifiable abortional act” one that occurs up to 24 weeks of pregnancy, or if the pregnancy is a threat to the woman’s life. In 2011, a Manhattan woman was charged with “self-abortion in the first degree” under the current law; Miller noted that the charges were dropped, but that such moves by either a well-meaning or a politically-motivated prosecutor can have a chilling effect on doctors, who may not want to perform the procedure.

“We know that abortion is not a criminal issue, it’s a health issue. Getting unconstitutional law off the books is very important, and the fact that you have something sitting there that threatens doctors with criminal penalties is very disturbing,” Goldberg said.

Since it was introduced, the bill has enjoyed strong support across the state, and across religious and party lines. Seventy-six percent of New Yorkers currently support the bill, from the Adirondacks to the city, across gender, religion, and age groups. “New Yorkers understand that we need a health exception explicitly written into our law and that it’s crazy that it’s legislated in the criminal code,” M. Tracey Brooks of Family Planning Advocates of New York State told Rewire.

Yet the bill hasn’t moved. According to Gottfried, the Assembly’s Democratic majority would have no problem passing the bill if it appeared likely to get through the Senate. But the Senate has been a different story.

Spitzer stepped down after a scandal in 2008, which pushed many of his priorities onto the back burner. Later, under Governor David Paterson, Brooks said, the Reproductive Health Act was on the legislative calendar to move to the floor for a vote, but then the infamous “coup” happened—a group of four Democrats refused to endorse their own party’s leadership in the Senate despite having won a majority. Two of them, Pedro Espada, later convicted of embezzling $400,000 from a nonprofit he founded, and Hiram Monserrate, best known for slashing his girlfriend’s face, wound up caucusing with the Republicans, leaving the GOP in control and bills like the Reproductive Health Act a no-go. Senator Diane Savino said at the time, “What they did is take what should have been a real moment of celebration and turned it on its head, and quite frankly we never recovered from it.”

In 2011, marriage equality was center stage. And in 2012, Brooks explained, attention turned back to getting a pro-choice majority to pass the bill. And it looked like it was going to be a good year.

“Voters were rejecting the kind of hostility to reproductive health care that Congress levied for 24 months. Voters here in New York saw and were reminded and voted against those actors,” Brooks said. 

But the bill’s chances now depend on another strange arrangement in the State Senate, and many see the fingerprints of the man who called so forcefully for its passage all over the setup that might keep it from passing. 

The State Senate—Where Good Bills Go to Die

For the second time in the lifetime of the Reproductive Health Act, a small group of Democrats have handed Republicans control of the legislature’s upper body. And columnists and pundits from local papers to MSNBC’s Chris Hayes haven’t been shy about pointing out Cuomo’s role in the situation.

Democrats won a majority in the State Senate after the election, taking 32 seats to the Republicans’ 30 with one district facing a long recount. But almost immediately, Simcha Felder, who ran on the Democratic and Conservative party tickets, announced that he’d caucus with Republicans. That would’ve left the chamber even, but then Jeff Klein (ostensibly D-Bronx/Westchester), Diane Savino (Staten Island), David Valesky (Syracuse), and David Carlucci (Rockland County) split to form the “Independent Democratic Conference,” and created a power-sharing deal with Republicans. They were later joined by former Democratic leader Malcolm Smith (Queens), who was at one point rumored to be considering a run for mayor of New York City—as a Republican.

Klein, the former Deputy Majority Leader for the Democrats, now leads his own formal caucus, and will serve as Temporary President of the Senate (and control the agenda, including which bills come up for a vote) on alternating days with Dean Skelos, leader of the Republican party and the man put in power by the previous coup. Rather than pushing for Democrats to take the control they’d rightly won in the election, Governor Cuomo gave his conditional support to the coalition plan; a Democratic source told Crain’s that Klein was running ideas past the governor before making his moves. Azi Paybarah at Capital New York, a longtime Albany reporter, wrote, “Cuomo is making the endorsement of the deal between Jeff Klein’s breakaway Democrats and Dean Skelos’ Republicans conditional, so he can take credit for the coalition arrangement if it’s seen to be working and abandon it if the arrangement breaks down or otherwise becomes unseemly in the eyes of the voting public.”

On policy issues, Klein and Skelos rarely see eye to eye. During the State of the State speech, Michael Powell at the New York Times noted, “The governor vowed to defend women and abortion choice, and Mr. Klein clapped. The Republican senator tried to sit on his hands.”Ostensibly, the reason for the coalition is good governance—each man will have a chance to bring bills to the floor, meaning that it’s entirely possible that Klein could bring up the Reproductive Health Act or a larger Women’s Equality Act for a vote on the days he’s in charge of the agenda and pass it with support from the larger Democratic caucus. Brooks called Klein a strong supporter of the bill and of abortion rights and expects him to deliver. 

Yet one has to ask, and many have, if the goal is to pass progressive legislation, isn’t it better to have a Democratic majority? And what’s so functional about a Jekyll-and-Hyde power-sharing deal? Fred LeBrun at the Albany Times-Union noted, “…oddly enough, Dean Skelos, Jeff Klein and Malcolm Smith were all leaders in the Legislature during the legendary dysfunctional period, yet they are all integral to the great coalition of convenience that the governor is giving a level of legitimacy.

Andrea Stewart-Cousins, a Yonkers Democrat, is now the first (African-American) woman to lead a New York State legislative caucus. She certainly isn’t thrilled with the deal—if the IDC hadn’t split to join the Republicans, she’d be in charge in the Senate. “Frankly, I’m not sure why he’s struck this relationship with the Republicans,” Stewart-Cousins told  Anna Sale at WNYC. “When people go the polls and they vote for someone of a certain party and that person goes and does something different, that’s a level of disenfranchisement frankly.”

The charge carries special weight because many of the Democratic politicians who are now shut out of leadership roles are black and Latino representatives of largely black and Latino districts. “They are being cheated,” LeBrun wrote, because the Republicans—who are all white (and nearly all male) and tend to represent mostly white Upstate districts—are clinging to power despite losing the vote.
That Democrats managed to win a majority only to see it wrested from their hands again is especially painful because the odds were stacked against them to begin with. Republicans had vowed with Democrats to pursue nonpartisan redistricting, signing a pledge put together by former New York City mayor Ed Koch during their brief period in the minority. But as soon as they were back in charge, explained Phillip Anderson, former new media director for the New York State Senate and a longtime New York political observer and organizer, the Republicans claimed that was unconstitutional and the maps were drawn to help GOP senators hold on to their seats. Governor Cuomo, who had called nonpartisan redistricting a priority, signed off on the highly partisan maps, even allowing the addition of a new district—which was won, counter to Republican expectations and after a lengthy recount, by the Democrat, Cecilia Tkacyzk. Her win gave people elected as Democrats 33 seats in the Senate.

“With the Tkaczyk election,there’s now a Democrat-Working Families majority in the State Senate,” Dan Cantor, the executive director of the Working Families Party, which had cross-endorsed many of the Senate Democrats, told Rewire. Democrats actually got 58 percent of the vote in state senate races this year, but wound up with a very slim majority; Anderson called the results an indictment of the redistricting process. “If you look at [the vote totals] and you look at the final product, the Senate that was sworn in, how can you not see that we’ve got a serious problem here?” Anderson asked.   

And, of course, Tkaczyk’s win doesn’t, ultimately, shake Republicans from power. Anderson continued, “They had to go further than producing possibly the most gerrymandered maps ever in the state of New York—and that’s saying something—and buy off five more Dems to keep their majority.”

Chris Hayes, a native New Yorker and host of MSNBC’s Up With Chris Hayes, was perhaps the highest-profile political commentator to raise questions about Cuomo’s involvement in the State Senate mess, noting that in addition to signing off on the partisan redistricting after vowing not to, the Democratic governor endorsed the re-elections of two Republican senators who had supported gay marriage. In one of those races, the Republican lost a primary challenge and Cuomo declined to support the Democrat—a married lesbian. She lost. In the other district, the Democrat, Terry Gipson, won despite Cuomo’s support for his Republican opponent.

“In the months leading up to the election, Cuomo refused to answer reporters when they asked if he favored a takeover of the state Senate by his own party. He endorsed only one Democrat, incumbent Joe Addabbo of Queens, and refused calls from fellow Dems to endorse others,” Michael McKee of the Metropolitan Council on Housing wrote. And Hayes commented on his show:   

“Watching all this unfold, one can’t help but suspect Andrew Cuomo actually does not want a Democratic majority in the State Senate because a Republican majority gives him more of an opportunity to burnish his bipartisan compromiser bona fides before launching his presidential campaign. And much, much, much more insidiously, we suspect he doesn’t want a Democratic majority because said majority stands ready to pass a whole raft of incredibly important, ground-breaking progressive legislation, including public financing for elections, marijuana decriminalization and a minimum wage hike, among others. The governor says he favors all those policies, but in this case, he sure is not acting like it.”

What does all this mean for the Reproductive Health Act? Anderson noted, “It languished for ages because the very people that Cuomo worked to keep in power wouldn’t pass it. These are the people who, now, he expects to go and pass it.”

Cuomo, in an op-ed after the election, made a point of emphasizing the Democratic caucus’s dysfunction, and signaled his support for the new ruling coalition based on a policy litmus test which includes “protecting a woman’s right to choose.” (The Governor’s office did not return requests by Rewire for comment on this article.)

And while the governor has garnered praise for the progressive agenda he’s laid out for next year, Anderson said, that agenda is a big change from what he’s done in the past—one that he perhaps wouldn’t have made had he been facing a Democratic majority willing to support his priorities.

“Governor Cuomo came out and gave this speech and laid out a policy agenda that was markedly pretty different from anything that he’d promoted before,” Anderson said.  “He grew up in the politics of this state, he knows exactly how it works probably more so than just about anybody. Not only did he not try to get the legislative body made up in such a way that it will pass that agenda, he actually worked to make sure that legislative body never came to be. If he wanted a Senate that would pass all the stuff that he outlined in his speech he could’ve had it. He absolutely could’ve had it.”

What Now?

Now the applause from the speech has faded, and the messier business of passing laws in a confusing legislature is upon us. Gottfried said, “Whether [forming a coalition with Republicans] is the right thing for the five IDC members to be doing or not, it is what they’re doing, so we have to deal with the hand we’ve been dealt.”

The first step, of course, is drafting a ten-point bill that meets Cuomo’s specifications. The Reproductive Health Act was reintroduced this session by Senator Stewart-Cousins, but the Women’s Equality Act Cuomo called for in January has yet to be written.

Once it is written and introduced, the next step will be publicly holding Cuomo and Klein accountable for their promises. Gottfried believes that the IDC members are solidly prochoice—the question is whether Klein will push to bring a bill to the floor for a vote. The new senate rules don’t just create the unique power-sharing deal giving Klein and Skelos equal control over the bills that see the light of day—they actually increase the threshold for other senators to get their bills moved to the floor, from a majority vote on a “motion for consideration” to a three-fifths vote.

There’s also a question of whether any Republicans will join a vote for it. Dean Skelos, the head of the Republican caucus, told a dinner held by the Conservative Party that he wouldn’t compromise on abortion rights. “We will block that,” he said, and Newsday reported that he was applauded. But notwithstanding those comments, Miller noted that more than six in ten Republican women supported the Reproductive Health Act and more than a majority of all Republican voters. She’s been having conversations with a number of senators and is hopeful that they will have some Republicans who are willing to vote their constituents’ values and support a bill.

The Democratic party itself is far from perfectly pro-choice–Ruben Diaz, who made a speech once calling Americans worse than Hitler for supporting abortion, won’t support the bill and most likely Simcha Felder, from a conservative Jewish district, won’t either. But with Tkacyzk’s win, Cantor said, “The votes are there to improve people’s lives and increase citizen confidence in the government itself. On public financing of elections and the Reproductive Health Act, it’s up to Governor Cuomo and the IDC to get it done.”

Democrats in New York and across the country learned this year the benefit of standing strong on abortion and women’s issues, as a near-endless string of Republicans stuck their tasseled loafers in their mouths over rape and pregnancy. Anderson noted, “One of the reasons Democrats were able to do as well as they did in the middle of a lousy economy was that they could credibly claim that the other side really hates women.” And Miller pointed out that Ted O’Brien (D-Monroe County) won his race because the right to choose was a strong issue in his district; Tkacyzk won a district no one expected a Democrat to take and George Latimer in Westchester won with prochoice support. “Races that were supposed to be opportunities for upsets, the upsets happened in the prochoice column,” Miller said.

“Given what we’ve seen on the national stage in the last couple of years, there’s an unprecedented opportunity to take the lead on these issues that people across the country care about,” Goldberg said. “New York could step up; we’re not going to see a lot of other proactive legislation on the issue of abortion this year.”

NARAL New York, which is leading the effort on the Reproductive Health Act, has an information page on its website and a petition in support of the Women’s Equality Agenda, and Miller said, “We’re going to be doing a lot of local activities and getting people engaged,” calling for supporters of the bill to contact their legislators in both the Assembly and the Senate, making sure “that message [that New York has a prochoice majority] comes through more than loud and clear, that it is absolutely unmistakable and that we send that message repeatedly from now until we get this passed.”

Cuomo’s calculated play to the progressive base with his speech seems to have worked, but what would really leave a lasting impression would be passing a slate of progressive laws, to go beyond the rhetoric and actually work to make the bill pass. Klein’s reputation has been staked on his ability to get the notoriously dysfunctional senate moving again, and Cuomo appears to want to burnish his progressive credentials, having spent much of his term so far as a stern fiscal conservative. Jay Jochnowitz, the Editorial page editor at the Albany Times Union, wrote of the Women’s Equality Act, “The Independent Democratic Conference, the Republicans’ coalition partner, should consider its credibility on the line if it can’t get such key legislation to the floor.”

Brooks was confident before the speech that this was the year the Reproductive Health Act would pass.

“The voters here in New York support this particular piece of legislation,” she said. “They did speak with their vote and want to see this work.”

The voters are solidly behind this bill; the governor claims it as central to his agenda. Now it’s time to see if the senate can get it done—and how much weight the governor actually will throw behind getting it passed.  As Azi Paybarah wrote, “Cuomo does own this Senate coalition, politically. And he will continue to own it right up until the moment he decides not to.”