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NY Penal Law § 125.40: Abortion in the second degree

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. An abortion can be a physical act performed upon a pregnant woman as well as the taking of medication to induce a miscarriage. You can violate an abortion statute if you perform the abortion on a pregnant woman or if you are the pregnant woman and perform the abortion on yourself. There are 4 different abortion-related offenses in the New York criminal code: 2 are related to performing an abortion on another person and 2 are related to self-abortion. Under New York Penal Law § 125.40 you could be prosecuted for the crime of abortion in the second degree if you commit an abortion that is not justifiable. An abortion is justifiable if it is:

  1. Committed with the consent of the pregnant woman by a licensed physician under a reasonable belief that such is necessary to preserve the pregnant woman's life, or
  2. Performed on a woman who no more than 24 weeks pregnant.

Sarah tells Bob, her married ex-boyfriend, that she is 5 months pregnant with his baby. Bob demands that Sarah get an abortion. Sarah refuses. Enraged, Bob knocks Sarah to the floor and kicks her in her stomach multiple times and leaves. Sarah calls 911 and is rushed to the hospital. Sarah recovers, but the baby does not. Bob could be prosecuted for abortion in the second degree as he intentionally caused Sarah to suffer a miscarriage without her consent. He could also be prosecuted for assault.

Related Offenses
  1. Abortion in the first degree: New York Penal Law § 125.45
  2. Self-abortion in the second degree: New York Penal Law § 125.50
  3. Self-abortion in the first degree: New York Penal Law § 125.55

In order for you to be convicted of abortion in the second degree you must have intended to cause a miscarriage. If you did not know that the woman was pregnant or if you did not have the intent to cause her to miscarry, then you may be able to successfully defend a charge of abortion in the second degree.


Because abortion in the second degree is a class E felony, if you are convicted you could be sentenced to up to 4 years in state prison.

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

A person is guilty of abortion in the second degree when he commits an abortional act upon a female, unless such abortional act is justifiable pursuant to subdivision three of § 125.05.

Contact the Law Offices of Stephen Bilkis & Associates

If you are charged with abortion in the second degree it is critical that you have experienced representation. If you are convicted you could end up behind bars for up to 4 years. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with vehicular manslaughter, manslaughter, conspiracy, murder and other serious crimes. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of crimes in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.

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