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NY Penal Law § 125.40: Abortion in the Second Degree

July 1, 2020 Federal Criminal Attorneys

While abortion is generally legal in New York, under certain circumstances it is a crime. An “abortional act” is defined as an action that is intended to cause a miscarriage. The abortion can be a physical illegal operation that is performed upon a pregnant woman, or it can be carried out by the taking of medication to induce a miscarriage. You would be in violation of an abortion statute if you perform an illegal abortion on a pregnant woman or if you, a pregnant woman, perform the abortion on yourself. Four different abortion-related offenses are laid out  in the New York criminal code.  Two of them are related to performing an abortion on another person.  The other two are related to self-abortion.  You could be prosecuted for the crime of abortion in the second degree under New York Penal Law § 125.40 if you commit an abortion that is not justifiable. An abortion is justifiable if it is:

  1. Carried out with the consent of the pregnant woman by a licensed physician under a reasonable assumption that such a procedure is necessary to preserve the pregnant woman’s life, or
  2. Performed on a woman who was no more than 24 weeks pregnant.

For Example

Hannah informs Seung, her ex-boyfriend who is married to another woman, that she is 5 months pregnant with his baby. Seung demands that Hannah abort the baby. Hannah refuses to get rid of her child. Enraged, Seung throws Hannah onto the floor, kicks her in the stomach multiple times and leaves. After he walks out, Hannah calls 911 and is rushed to the hospital. Hannah recovers, but the baby doesn’t make it. Seung could face prosecution for abortion in the second degree.  This charge is valid because he intentionally caused Hannah to suffer a miscarriage without her consent. He might also be prosecuted on an assault charge.

Offenses that are Related

Abortion in the first degree: New York Penal Law § 125.45

Self-abortion in the second degree: New York Penal Law § 125.50

Self-abortion in the first degree: New York Penal Law § 125.55

Possible Defenses

To be convicted of abortion in the second degree, you must have had the intent to bring about a miscarriage of a pregnancy. If, for example, you were not aware that the woman was pregnant, or if you knew she was pregnant but did not have the intent to cause her to miscarry by your actions, then you might be able to successfully defend against a charge of abortion in the second degree.

The Sentence

Due tot he fact that abortion in the second degree is categorized as a class E felony, if you are convicted, you could be sentenced to as much as 4 years in state prison.



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