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NY Penal Law § 125.45: Abortion in the First 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. 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. Which abortion charge you will face depends on how many weeks the pregnant woman was at the time of the abortion.  It also depends on whether or not you, a pregnant woman, performed the abortion on yourself or if you carried it out on someone else who was pregnant. You could be prosecuted for abortion in the first degree under New York Penal Law § 125.45 if you perform an abortion on a woman who is more than 24 weeks pregnant.


Zaire is 25 weeks pregnant. The father of her child broke up with her and has since disappeared without a trace. Forlorn, Zaire decides to get rid of the baby. She visited several clinics, but because she already was 25 weeks along, she could not find a licensed physician who would perform the abortion. Now, at 26 weeks, she locates an unlicensed person who is willing to perform the abortion for cash. Both Zaire and the baby perish during the procedure. Theunlicensed  person who performed the abortion could face charges of abortion in the first degree.  This charge is valid because the mother was more than 24 weeks pregnant at the time of the botched procedure. The illegal abortionist could also be looking at a manslaughter in the second degree charge under New York Penal Law § 125.15.

Offenses that are Related

Manslaughter in the second degree: New York Penal Law § 125.15

Abortion in the second degree: New York Penal Law § 125.40

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 first degree.

The Sentence

Due to the fact that abortion in the first degree is categorized as a class D felony, if you are convicted, you could get sentenced by the judge to up to 7 years in state prison.



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