City Bar Supports Key Provisions of Governor Cuomo’s 2018 Women’s Agenda

The New York City Bar Association has issued a report in support of three provisions of Governor Cuomo’s 2018 Women’s Agenda in this year’s budget, including issues relating to comprehensive contraception insurance coverage (Part A), decriminalizing abortion under state law (Part B), and a model K-12 curriculum on healthy relationships (Part K). The City Bar urges the inclusion of these provisions in the final 2019 Executive Budget, as they provide important advancements in women’s reproductive health policy and combating sexual harassment and assault.

The City Bar has also commented on the sections of the Women’s Agenda aimed at preventing sexual harassment in State government (Part I, Subparts E and F). The City Bar recommends that Subpart F be augmented to cover all forms of harassment, but opposes adoption of Subpart E, which would give the Joint Committee on Public Ethics (JCOPE) express authority to receive and investigate sexual harassment complaints, until JCOPE and the Legislative Ethics Commission (LEC) “have been replaced with an agency to enforce the State Code of Ethics that is credible in its non-partisanship and independence.”

PART A: THE COMPREHENSIVE CONTRACEPTIVE COVERAGE ACT

The Comprehensive Contraception Coverage Act provides that every group or blanket health insurance policy that is issued, amended, renewed, effective or delivered on or after January 1, 2019 shall provide coverage for all FDA-approved contraceptive drugs, devices and other products, including emergency contraception. It would (1) require insurers to cover any contraception that a health care provider recommends for a woman without a co-payment, (2) provide that women can access 12 months of contraception at one time (which reduces the likelihood of an unintended pregnancy), and (3) fully include and cover emergency contraception.

“We are pleased to support this bill and commend Governor Cuomo and those who have fought for comprehensive contraception coverage in New York State, particularly in the face of federal threats to reproductive health care coverage overall,” the report states, quoting in support of its position, among other things, the Supreme Court’s holding that if personal liberty “means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

PART B: DECRIMINALIZING ABORTION UNDER STATE LAW TO ENSURE THAT WOMEN CAN MAKE PERSONAL HEALTH CARE DECISIONS

Part B of the Women’s Agenda would fully decriminalize abortion by repealing the crimes of abortion and self-abortion in the criminal code and removing all reference to criminal abortion in the criminal procedure law, county law, and judiciary law. Additionally, Part B would remove unconstitutional provisions governing abortion within the public health and education law.

The report notes that while New York State was once at the forefront of protecting women’s health and reproductive freedom, its relevant law is now “outdated and inadequate,” containing “archaic provisions that fail to comply with subsequent Supreme Court decisions, prevents health care providers from offering the best reproductive care, impedes women’s ability to make the decisions that are right for themselves and their families, and creates a looming threat of prosecution for women who end their own pregnancies.”

The report adds, “Given the shift in U.S. Supreme Court abortion jurisprudence in recent years, and a possible shift in the composition of the Supreme Court itself, it is more important than ever that the State of New York update its laws regulating reproductive health.”

PART K: IMPLEMENTING THE “BE AWARE, BE INFORMED” LEARNING MODULE – APPROVED WITH SUGGESTED MODIFICATION

The City Bar supports, with some recommended modifications, the enactment of Part K of the Women’s Agenda, which would amend New York’s Education Law to establish a “Be Aware, Be Informed” learning module. Under the proposed budget provision, the State Education Department, in consultation with the Department of Health, would develop a model K-12 curriculum on healthy relationships. This curriculum would provide age-appropriate information on confronting and avoiding sexual harassment, assault and teen dating violence, as well as medically accurate sexual health. The curriculum would also reinforce the definition of affirmative consent as established in the “Enough is Enough” law to foment a common understanding for all students.

The report notes that New York’s current Enough is Enough law applies only to higher education, “but young adults form beliefs – and sometimes misconceptions – about relationships and related conduct well before they arrive on a college campus. Age-appropriate training efforts therefore must begin earlier, before students’ ideas become relatively fixed. A common statewide educational module available for K-12 students will create a better understanding of safe, healthy relationships, while helping to prevent violence not only in primary and secondary schools, but also across our communities and on college campuses.” Further, as currently drafted, the legislation would only provide model curriculum, lesson plans, and instructional materials to schools throughout the state. “Requiring schools to offer this instruction would ensure that students across the state consistently receive the benefit of age-appropriate, evidence-informed training,” the report states.

PART I, SUBPARTS E AND F: PREVENTING SEXUAL HARASSMENT IN STATE GOVERNMENT

The City Bar recommends that Subpart E of the Women’s Agenda, which would give the Joint Committee on Public Ethics (JCOPE) express authority to receive and investigate sexual harassment complaints, “not be enacted until steps have been taken to replace JCOPE and the Legislative Ethics Commission (LEC) with a truly independent enforcement body able to investigate and impose sanctions on a consistent basis.” Subpart F, which requires the creation and enforcement of sexual harassment policies within the three branches of government, should be strengthened and its scope expanded to cover all forms of harassment. 

The City Bar’s letter argues that in cases of harassment “enforcement must be particularly vigorous and consistent because it is not infrequent that the appropriate way to prevent sexual or other forms of harassment, both as a matter of deterrence and needed remedial outcome, is the removal of the repeated or egregious violator from the workplace. Accordingly, particularly in the context of the Executive and Legislative Branches of state government, enforcement by a single non-partisan entity independent of political pressure is necessary to assure that appropriate enforcement, including termination of public service, is consistently achieved.” However, such a power does not exist in New York as JCOPE “suffers from a lack of independence and credibility because its structure is fatally flawed.” Until the flaws in JCOPE are corrected, the City Bar does not believe it will be able to adequately enforce a sexual harassment policy, and therefore proposes steps that can be taken in the interim to strengthen the likelihood of strong enforcement through increasing transparency, accountability and due process. 

The City Bar’s reports were written by its Committees on Sex and Law, Education and the Law, Health Law and Government Ethics and State Affairs.

The report on Parts A, B and K of the Women’s Agenda can be read here: http://bit.ly/2p2WXtm.

The letter on preventing sexual harassment in State government can be read here: http://bit.ly/2oYgBaK.

About the Association
The New York City Bar Association, since its founding in 1870, has been dedicated to maintaining the high ethical standards of the legal profession, promoting reform of the law and access to justice, and providing service to the profession and the public. The Association, through its 24,000 members, continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities. www.nycbar.org