Appeals court rules people can’t sue over forced abortion under the Adult Survivors Act
Unauthorized abortions are not a type of sexual abuse a person can sue over under New York’s lookback window for sexual assault, a state appeals court said Tuesday in a novel ruling.
The Appellate Division, First Department ruled against Yolanda Murray, a woman whose 2023 Adult Survivors Act suit alleged a Planned Parenthood physician gave her an abortion she didn’t want in 1996 while making “inappropriate comments” to her, deciding that non-consensual abortion wouldn’t constitute a sex offense as defined by state penal law.
“The performance of an unauthorized abortion, as alleged here, is not the type of sexual misconduct the ASA and similar ‘revival’ statutes were designed to reach, even allowing for the fact, as alleged, that the provider made inappropriate comments to plaintiff while performing the procedure,” the court wrote.
New York Law School professor Heather Cucolo told amNewYork Law this was the first court to make a determination on whether a person could file an Adult Survivors Act claim over a non-consensual abortion. She called the novel decision “unfortunate” for Murray, who was representing herself, but “logical.”
Cucolo said she felt the court’s reading of the state’s penal law was “reasonable,” but that, because Murray alleged the physician made obscene comments about her body while carrying out the nonconsensual procedure, it could be argued the physician’s conduct would’ve fallen under the portion of the statute that criminalizes touching a person’s intimate parts for their own gratification.
“It appears the doctor who had performed the abortion had engaged in vulgar amusement, making some illicit statements about her private parts during that procedure,” Cucolo said. “It could have potentially been a viable argument to say that this is sexualized conduct directed at an intimate body part during a moment of extreme vulnerability, without consent, maybe accompanied by coercion, since there was a claim that it was not a procedure that was wanted.”
Cucolo said the case may have been more successful if Murray had had the advice and representation of an attorney. However, she said, it’s difficult to know for sure, as there were a few aspects of her suit where the facts are unclear. It seemed like there was a lack of clarity over whether Murray was a minor or an adult when the non-consensual abortion happened; if she’d had been under 18, the claim would not have fallen under the ASA regardless.
“It’s really difficult to say whether nonconsensual abortion in and of itself … whether there’d be a strong argument in this capacity under the look back window,” Cucolo said. “But if we’re coupling that with inappropriate sexualized comments and treatment and whatnot, there could very well be a creative argument that expands the narrow definition of [the penal law] and possibly apply it to the facts in this case.”
She said it was possible an attorney could have made other arguments given the very specific particulars of Murray’s situation, but that it was difficult to know without having all the facts of the case.
If Murray were to appeal the decision, it could be taken up by the Court of Appeals, the state’s highest court.
