Bill Text: NY A05389 | 2019-2020 | General Assembly | Introduced


Bill Title: Establishes the requirement of testing for a fetal heartbeat prior to the performance of an abortion; establishes standards for informed consent; directs the department of public health to prepare and disseminate certain materials regarding abortion and providing for certain civil remedies; expands the definition of medical professional misconduct to include certain acts of abortion and authorizes certain sanctions for violations; criminalizes the performance of an abortion under certain circumstances; establishes the joint legislative committee on adoption promotion and support; provides for certain remedies in the event that the supreme court of the United States overrules Roe v. Wade; and authorizes the commissioner of the department of public health to promulgate certain rules and regulations.

Spectrum: Partisan Bill (Republican 6-0)

Status: (Introduced) 2019-02-11 - referred to health [A05389 Detail]

Download: New_York-2019-A05389-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          5389
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 11, 2019
                                       ___________
        Introduced  by  M.  of  A.  DiPIETRO,  FRIEND,  HAWLEY  -- read once and
          referred to the Committee on Health
        AN ACT to amend the public health law, in relation to  establishing  the
          requirement  of testing for a fetal heartbeat prior to the performance
          of an abortion, establishing standards for informed consent, directing
          the department of public health to  prepare  and  disseminate  certain
          materials regarding abortion and providing for certain civil remedies;
          to amend the education law, in relation to expanding the definition of
          medical  professional  misconduct  to include certain acts of abortion
          and authorizing certain sanctions for violations; to amend  the  penal
          law, in relation to criminalizing the performance of an abortion under
          certain circumstances; to establish the joint legislative committee on
          adoption promotion and support; to provide for certain remedies in the
          event  that  the  supreme  court of the United States overrules Roe v.
          Wade; and to authorize the commissioner of the department of health to
          promulgate certain rules and regulations
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1.  The  legislature  declares  that  it  finds, according to
     2  contemporary medical research, all of the following:
     3    1. As many as thirty percent of natural pregnancies end in spontaneous
     4  miscarriage.
     5    2. Less than five percent of all natural pregnancies end in  spontane-
     6  ous miscarriage after detection of fetal cardiac activity.
     7    3.  Over  ninety  percent  of  in  vitro pregnancies survive the first
     8  trimester if cardiac activity is detected in the gestational sac.
     9    4. Nearly ninety percent of in vitro pregnancies do  not  survive  the
    10  first trimester where cardiac activity is not detected in the gestation-
    11  al sac.
    12    5. Fetal heartbeat, therefore, has become a key medical predictor that
    13  an unborn human individual will reach live birth.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07652-01-9

        A. 5389                             2
     1    6.  Cardiac  activity  begins at a biologically identifiable moment in
     2  time, normally when the fetal heart is formed in the gestational sac.
     3    7.  The  state of New York has legitimate interests from the outset of
     4  the pregnancy in protecting the health of the woman and the life  of  an
     5  unborn human individual who may be born.
     6    8.  In  order to make an informed choice about whether to continue her
     7  pregnancy, the pregnant woman has a legitimate interest in  knowing  the
     8  likelihood  of  the  fetus  surviving  to full-term birth based upon the
     9  presence of cardiac activity.
    10    § 2. Article 41 of the public health law is amended by  adding  a  new
    11  title 5-B to read as follows:
    12                                  TITLE V-B
    13                                  ABORTION
    14  Section 4164-a. Definitions.
    15          4164-b. Application.
    16          4164-c. Detectable heartbeat.
    17          4164-d. Preliminary informed consent.
    18          4164-e. Informed consent after detection of a heartbeat.
    19          4164-f. Performance of abortion.
    20          4164-g. Medical emergency.
    21          4164-h. Reporting.
    22          4164-i. Duties of the department.
    23          4164-j. Culpability of the physician.
    24          4164-k. Culpability of the pregnant woman.
    25          4164-l. Civil action.
    26    § 4164-a. Definitions. As used in this title:
    27    1. "Conception" means fertilization.
    28    2.  "Contraceptive"  means  a  drug, device, or chemical that prevents
    29  conception.
    30    3. "DNA" means deoxyribonucleic acid.
    31    4. "Fetal heartbeat" means cardiac activity or the steady and  repeti-
    32  tive rhythmic contraction of the fetal heart within the gestational sac.
    33    5.  "Fetus" means the human offspring developing during pregnancy from
    34  the moment of conception and includes the embryonic  stage  of  develop-
    35  ment.
    36    6.  "Gestational  age"  means the age of an unborn human individual as
    37  calculated from the first day of the last menstrual period of a pregnant
    38  woman.
    39    7. "Gestational sac" means the structure that comprises  the  extraem-
    40  bryonic  membranes  that envelop the fetus and that is typically visible
    41  by ultrasound after the fourth week of pregnancy.
    42    8. "Intrauterine pregnancy" means a pregnancy in which  the  fetus  is
    43  attached to the placenta within the uterus of the pregnant woman.
    44    9.  "Medical emergency" means a condition of a pregnant woman that, in
    45  the reasonable judgment of the physician who  is  attending  the  woman,
    46  creates  an  immediate  threat  of  serious risk to the life or physical
    47  health of the woman from the continuation of the pregnancy necessitating
    48  the immediate performance or inducement of an abortion.
    49    10. "Medical necessity" means a medical condition of a pregnant  woman
    50  that,  in  the reasonable judgment of the physician who is attending the
    51  woman, so complicates the pregnancy that it necessitates  the  immediate
    52  performance or inducement of an abortion.
    53    11. "Physician" means an individual licensed under article one hundred
    54  thirty-one  of  the  education  law  to practice medicine and surgery or
    55  osteopathic medicine and surgery.

        A. 5389                             3
     1    12. "Pregnancy" means the human  female  reproductive  condition  that
     2  begins  with  fertilization,  when  the woman is carrying the developing
     3  human offspring, and that is calculated from the first day of  the  last
     4  menstrual period of the woman.
     5    13. "Probable gestational age of the embryo or fetus" means the gesta-
     6  tional  age  that,  in  the judgment of a physician, is, with reasonable
     7  probability, the gestational age of the embryo or fetus at the time that
     8  the physician informs a pregnant woman  pursuant  to  section  forty-one
     9  hundred sixty-four-d of this title.
    10    14.  "Spontaneous  miscarriage" means the natural or accidental termi-
    11  nation of a pregnancy and the expulsion of the fetus,  typically  caused
    12  by  genetic  defects in the fetus or physical abnormalities in the preg-
    13  nant woman.
    14    15. "Standard medical practice" means the degree of skill,  care,  and
    15  diligence that a physician of the same medical specialty would employ in
    16  like circumstances. As applied to the method used to determine the pres-
    17  ence  of  a  fetal  heartbeat  for purposes of section forty-one hundred
    18  sixty-four-c of this title, "standard medical practice" includes employ-
    19  ing the appropriate means of detection depending on the estimated gesta-
    20  tional age of the fetus and the condition of the woman and her  pregnan-
    21  cy.
    22    16.  "Unborn  human  individual"  means  an individual organism of the
    23  species homo sapiens from fertilization until live birth.
    24    § 4164-b. Application. 1. The provisions of this title apply  only  to
    25  abortions involving intrauterine pregnancies.
    26    2.  The provisions of this title shall not apply to abortions in cases
    27  in which the method used to test for the presence of a  fetal  heartbeat
    28  in  compliance  with subdivision one of section forty-one hundred sixty-
    29  four-c of this title does not reveal a fetal heartbeat.
    30    3. Nothing in this title shall prohibit the sale,  use,  prescription,
    31  or  administration  of  a drug, device, or chemical that is designed for
    32  contraceptive purposes.
    33    § 4164-c. Detectable heartbeat. 1. Any person who intends  to  perform
    34  or  induce an abortion on a pregnant woman shall determine whether there
    35  is a detectable fetal heartbeat of the unborn human individual the preg-
    36  nant woman is carrying. The method of  determining  the  presence  of  a
    37  fetal  heartbeat shall be consistent with the person's good faith under-
    38  standing of standard medical practice and in accordance with all  appli-
    39  cable  rules  promulgated by the commissioner. The person who determines
    40  the presence or absence of a fetal heartbeat shall record in  the  preg-
    41  nant  woman's medical record the estimated gestational age of the unborn
    42  human individual, the method used to test for  a  fetal  heartbeat,  the
    43  date and time of the test, and the results of the test.
    44    2.  Except  as  provided  in section forty-one hundred sixty-four-g of
    45  this title, no person shall knowingly and purposefully perform or induce
    46  an abortion on a pregnant woman before:
    47    (a) determining in accordance with subdivision  one  of  this  section
    48  whether the unborn human individual the pregnant woman is carrying has a
    49  detectable heartbeat; and
    50    (b)  complying  with  the  notification  and  consent  requirements of
    51  section forty-one  hundred  sixty-four-d,  and  if  applicable,  section
    52  forty-one hundred sixty-four-e of this title.
    53    §  4164-d.  Preliminary  informed  consent.  1. Except when there is a
    54  medical emergency or medical necessity as provided in section  forty-one
    55  hundred  sixty-four-g  of  this title, an abortion shall be performed or
    56  induced only if all of the following conditions are satisfied:

        A. 5389                             4
     1    (a) At least twenty-four hours prior to the performance or  inducement
     2  of  the abortion, a physician meets with the pregnant woman in person in
     3  an individual, private setting and gives her an adequate opportunity  to
     4  ask  questions  about the abortion that will be performed or induced. At
     5  this  meeting,  the  physician shall inform the pregnant woman, verbally
     6  or, if she is hearing impaired, by other means of communication, of  all
     7  of the following:
     8    (1)  the nature and purpose of the particular abortion procedure to be
     9  used and the medical risks associated with that procedure;
    10    (2) the probable gestational age of the embryo or fetus; and
    11    (3) the medical risks associated with the pregnant woman carrying  the
    12  pregnancy to term.
    13    (b)  The  meeting  described in paragraph (a) of this subdivision need
    14  not occur at the facility where the  abortion  is  to  be  performed  or
    15  induced,  and  the  physician involved in the meeting need not be affil-
    16  iated with that facility or with  the  physician  who  is  scheduled  to
    17  perform  or  induce  the abortion. The physician involved in the meeting
    18  shall provide to the pregnant woman the  physician's  name  and  contact
    19  information.
    20    (c)  At least twenty-four hours prior to the performance or inducement
    21  of the abortion, the physician who is to perform or induce the  abortion
    22  or  the physician's agent does each of the following in person, by tele-
    23  phone, by certified mail, return receipt requested, or by  regular  mail
    24  evidenced by a certificate of mailing:
    25    (1)  inform  the  pregnant  woman  of the name of the physician who is
    26  scheduled to perform or induce the abortion;
    27    (2)  give  the  pregnant  woman  copies  of  the  published  materials
    28  described in section forty-one hundred sixty-four-i of this title; and
    29    (3)  inform  the  pregnant  woman that the materials given pursuant to
    30  section forty-one hundred sixty-four-i of this title  are  published  by
    31  the  state  and that they describe the embryo or fetus and list agencies
    32  that offer alternatives to abortion.  The pregnant woman may  choose  to
    33  examine  or  not  to examine the materials. A physician or an agent of a
    34  physician may choose to be disassociated  from  the  materials  and  may
    35  choose to comment or not comment on the materials.
    36    (d)  If  it  has  been determined that the unborn human individual the
    37  pregnant woman is carrying has a detectable heartbeat, the physician who
    38  is to perform or induce the abortion  shall  comply  with  the  informed
    39  consent  requirements  in section forty-one hundred sixty-four-e of this
    40  title in addition to complying with the informed consent requirements of
    41  this section.
    42    (e) Prior to the performance or inducement of the abortion, the  preg-
    43  nant woman signs a form consenting to the abortion and certifies both of
    44  the following on that form:
    45    (1)  she  has  received  the  information  and  materials described in
    46  section forty-one hundred sixty-four-i of this title, and her  questions
    47  about  the abortion that will be performed or induced have been answered
    48  in a satisfactory manner; and
    49    (2) she consents to the particular  abortion  voluntarily,  knowingly,
    50  intelligently,  and without coercion by any person, and she is not under
    51  the influence of any drug of abuse or alcohol.
    52    (f) The form shall contain the name and  contact  information  of  the
    53  physician  who  provided to the pregnant woman the information described
    54  in paragraph (a) of this subdivision.
    55    (g) Prior to the performance or inducement of the abortion, the physi-
    56  cian who is scheduled to perform or induce the abortion  or  the  physi-

        A. 5389                             5
     1  cian's  agent  receives  a  copy  of the pregnant woman's signed form on
     2  which she consents to the abortion and that includes  the  certification
     3  required by paragraph (e) of this subdivision.
     4    2.  If the conditions specified in this section are satisfied, consent
     5  to an abortion shall be presumed to be valid and effective.
     6    § 4164-e. Informed consent after detection of a heartbeat. 1.    If  a
     7  person  who intends to perform or induce an abortion on a pregnant woman
     8  has determined, under section forty-one  hundred  sixty-four-c  of  this
     9  title,  that  the unborn human individual the pregnant woman is carrying
    10  has a detectable heartbeat, the person shall not, except as provided  in
    11  subdivision  two  of  this section, perform or induce the abortion until
    12  all of the following requirements have been met and at least twenty-four
    13  hours have elapsed after the last of the requirements is met:
    14    (a) the person intending to  perform  or  induce  the  abortion  shall
    15  inform  the  pregnant  woman in writing that the unborn human individual
    16  the pregnant woman is carrying has a fetal heartbeat;
    17    (b) the person intending to  perform  or  induce  the  abortion  shall
    18  inform the pregnant woman, to the best of the person's knowledge, of the
    19  statistical probability of bringing the unborn human individual possess-
    20  ing a detectable fetal heartbeat to term based on the gestational age of
    21  the  unborn  human  individual  or,  if  the  commissioner has specified
    22  statistical probability information  pursuant  to  rules  adopted  under
    23  subdivision  three  of this section, shall provide to the pregnant woman
    24  that information; and
    25    (c) the pregnant woman shall sign a form acknowledging that the  preg-
    26  nant woman has received information from the person intending to perform
    27  or  induce  the  abortion  that the unborn human individual the pregnant
    28  woman is carrying has a fetal heartbeat and that the pregnant  woman  is
    29  aware  of the statistical probability of bringing the unborn human indi-
    30  vidual the pregnant woman is carrying to term.
    31    2. The provisions of subdivision one of this section shall  not  apply
    32  if  the  person  who  intends to perform or induce the abortion believes
    33  that a medical emergency  exists  that  prevents  compliance  with  such
    34  subdivision.
    35    3. The commissioner may adopt rules that specify information regarding
    36  the  statistical  probability  of  bringing  an  unborn human individual
    37  possessing a detectable heartbeat to term based on the  gestational  age
    38  of  the  unborn  human individual. The rules shall be based on available
    39  medical evidence.
    40    4. This section shall not have the effect of repealing or limiting any
    41  other provision of law relating to informed consent for an abortion.
    42    § 4164-f. Performance of abortion. 1. (a) A  person  who  performs  or
    43  induces  an  abortion  on  a  pregnant  woman  shall do whichever of the
    44  following is applicable:
    45    (1) If the reason for the abortion  purportedly  is  to  preserve  the
    46  health  of  the  pregnant  woman,  the person shall specify in a written
    47  document the medical condition that the abortion is asserted to  address
    48  and  the medical rationale for the person's conclusion that the abortion
    49  is necessary to address that condition; or
    50    (2) If the reason for the abortion  is  other  than  to  preserve  the
    51  health  of  the  pregnant  woman,  the person shall specify in a written
    52  document that maternal health is not the purpose of the abortion.
    53    (b) The person who specifies the information in the document described
    54  in paragraph (a) of this subdivision shall place  the  document  in  the
    55  pregnant woman's medical records. For at least seven years from the date

        A. 5389                             6
     1  the  document is created, the person who specifies the information shall
     2  maintain a copy of the document in the person's own records.
     3    2.  In the event that testing reveals a fetal heartbeat as provided in
     4  section forty-one hundred sixty-four-c of this title, except as provided
     5  in subdivision three of this section,  no  person  shall  knowingly  and
     6  purposefully  perform or induce an abortion on a pregnant woman with the
     7  specific intent of causing or abetting the termination of  the  life  of
     8  the  unborn  human  individual  the  pregnant woman is carrying. Whoever
     9  violates the provisions of this subdivision is guilty of abortion in the
    10  third degree as provided in section 125.41 of the penal law.
    11    3. (a) The provisions of subdivision two of  this  section  shall  not
    12  apply  to  a  physician  who  performs  a medical procedure that, in the
    13  physician's reasonable medical judgment,  is  designed  or  intended  to
    14  prevent  the death of the pregnant woman or to prevent a serious risk of
    15  the substantial and irreversible impairment of a major  bodily  function
    16  of  the  pregnant woman, as provided in section forty-one hundred sixty-
    17  four-g of this title.
    18    (b) A physician who performs a medical procedure as described in  this
    19  subdivision  shall  declare,  in  a  written  document, that the medical
    20  procedure is necessary,  to  the  best  of  the  physician's  reasonable
    21  medical  judgment,  to  prevent  the  death  of the pregnant woman or to
    22  prevent a serious risk of the substantial and irreversible impairment of
    23  a major bodily function of the pregnant  woman.  In  the  document,  the
    24  physician  shall specify the pregnant woman's medical condition that the
    25  medical procedure is asserted to address and the medical  rationale  for
    26  the  physician's  conclusion  that the medical procedure is necessary to
    27  prevent the death of the pregnant woman or to prevent a serious risk  of
    28  the  substantial  and irreversible impairment of a major bodily function
    29  of the pregnant woman.
    30    (c) A physician who performs a medical procedure as described in  this
    31  subdivision  shall  place the written document required by this subdivi-
    32  sion in the pregnant woman's medical records. For at least  seven  years
    33  from  the  date  the document is created, the physician shall maintain a
    34  copy of the document in the physician's own records.
    35    4. The provisions of subdivision two of this section  shall  not  have
    36  the  effect  of  repealing  or  limiting any other provision of law that
    37  restricts or regulates the performance or inducement of an abortion by a
    38  particular method or during a particular stage of a pregnancy.
    39    § 4164-g. Medical emergency. 1. If  a  medical  emergency  or  medical
    40  necessity  compels  the  performance  or  inducement of an abortion, the
    41  physician who will perform or induce the abortion, prior to its perform-
    42  ance or inducement, if possible, shall inform the pregnant woman of  the
    43  medical  indications supporting the physician's judgment that an immedi-
    44  ate abortion is necessary.
    45    2. The provisions  of  sections  forty-one  hundred  sixty-four-d  and
    46  forty-one hundred sixty-four-e of this title shall not apply to a physi-
    47  cian who performs or induces the abortion if the physician believes that
    48  a medical emergency exists that prevents compliance with those sections.
    49    3. Any physician who performs or induces an abortion without the prior
    50  satisfaction  of  the conditions specified in sections forty-one hundred
    51  sixty-four-d and forty-one hundred sixty-four-e of this title because of
    52  a medical emergency or medical necessity shall make written notations in
    53  the pregnant woman's medical records of the following:
    54    (a) the physician's belief that a medical emergency necessitating  the
    55  abortion existed;

        A. 5389                             7
     1    (b)  the  medical  condition  of  the  pregnant  woman that assertedly
     2  prevented compliance with the provisions of sections  forty-one  hundred
     3  sixty-four-d and forty-one hundred sixty-four-e of this title; and
     4    (c) the reasons for the conclusion that a medical emergency or medical
     5  necessity exists.
     6    4.  The physician shall maintain in the physician's own records a copy
     7  of the notations referred to in subdivision three of this section for at
     8  least seven years from the date the notations are made.
     9    § 4164-h. Reporting.  1.  A  physician  who  performs  or  induces  or
    10  attempts  to  perform  or  induce  an abortion on a pregnant woman shall
    11  submit a report to the department in accordance with the  forms,  rules,
    12  and  regulations  adopted  by  the  department  that includes all of the
    13  information the physician is required to certify in writing or determine
    14  under the provisions of this title. If a person other than the physician
    15  makes or maintains a record as required on the physician's behalf or  at
    16  the  physician's  direction, that person shall comply with the reporting
    17  requirements as if the person were the physician.
    18    2. By September thirtieth of each year, the department shall  issue  a
    19  public  report  that  provides statistics for the previous calendar year
    20  compiled from all of the reports covering that calendar  year  submitted
    21  to  the department in accordance with this section for each of the items
    22  listed in subdivision one of this section. The report shall also provide
    23  the statistics for each previous calendar year in  which  a  report  was
    24  filed  with the department pursuant to this section, adjusted to reflect
    25  any additional information that a physician provides to  the  department
    26  in a late or corrected report.  The department shall ensure that none of
    27  the  information  included  in  the  report could reasonably lead to the
    28  identification of any pregnant woman upon whom an abortion is performed.
    29    3. The physician shall submit the report described in subdivision  one
    30  of this section to the department within fifteen days after the woman is
    31  discharged. If the physician fails to submit the report more than thirty
    32  days  after that fifteen-day deadline, the physician shall be subject to
    33  a late fee of five hundred dollars for each additional thirty-day period
    34  or portion of a thirty-day period the report is overdue. A physician who
    35  is required to submit to the department a report under  subdivision  one
    36  of  this  section and who has not submitted a report or has submitted an
    37  incomplete report more than one year following the fifteen-day  deadline
    38  may,  in  an action brought by the department, be directed by a court of
    39  competent jurisdiction to submit a complete  report  to  the  department
    40  within  a  period  of  time  stated  in  a  court order or be subject to
    41  contempt of court.
    42    4. No person shall falsify any report  required  under  this  section.
    43  Whoever  violates  the  provisions of this section is guilty of abortion
    44  report falsification, a class A misdemeanor.
    45    § 4164-i. Duties of the department. 1. The department shall publish in
    46  English and in Spanish, in a typeface large enough to be  clearly  legi-
    47  ble,  and in an easily comprehensible format, the following materials on
    48  the department's web site:
    49    (a) Materials that inform the pregnant  woman  about  family  planning
    50  information, of publicly funded agencies that are available to assist in
    51  family  planning,  and  of public and private agencies and services that
    52  are available to assist her through the pregnancy, upon childbirth,  and
    53  while  the  child  is dependent, including, but not limited to, adoption
    54  agencies. The materials  shall  be  geographically  indexed;  include  a
    55  comprehensive  list  of  the  available  agencies,  a description of the
    56  services  offered  by  the  agencies,  and  the  telephone  numbers  and

        A. 5389                             8
     1  addresses of the agencies; and inform the pregnant woman about available
     2  medical  assistance benefits for prenatal care, childbirth, and neonatal
     3  care and about the support obligations of the father of a child  who  is
     4  born  alive. The department shall ensure that the materials described in
     5  this paragraph are comprehensive  and  do  not  directly  or  indirectly
     6  promote,  exclude,  or  discourage  the  use  of  any  agency or service
     7  described in this subdivision.
     8    (b) Materials that inform the pregnant woman of the  probable  anatom-
     9  ical  and  physiological  characteristics  of  the  zygote,  blastocyte,
    10  embryo, or fetus  at  two-week  gestational  increments  for  the  first
    11  sixteen  weeks of pregnancy and at four-week gestational increments from
    12  the seventeenth week of pregnancy to full term, including  any  relevant
    13  information  regarding  the  time  at  which the fetus possibly would be
    14  viable. The department shall cause these materials to be published  only
    15  after  it consults with the medical society of the state of New York and
    16  the New York section of the American college of obstetricians and  gyne-
    17  cologists  relative to the probable anatomical and physiological charac-
    18  teristics of a zygote, blastocyte,  embryo,  or  fetus  at  the  various
    19  gestational  increments. The materials shall use language that is under-
    20  standable by the average person who is not medically trained,  shall  be
    21  objective  and nonjudgmental, and shall include only accurate scientific
    22  information about the zygote, blastocyte, embryo, or fetus at the  vari-
    23  ous  gestational  increments.  If  the materials use a pictorial, photo-
    24  graphic, or other depiction to provide information regarding the zygote,
    25  blastocyte, embryo, or fetus, the materials shall include, in a conspic-
    26  uous manner, a scale or other explanation that is understandable by  the
    27  average  person and that can be used to determine the actual size of the
    28  zygote, blastocyte, embryo, or fetus at a particular gestational  incre-
    29  ment  as  contrasted  with  the depicted size of the zygote, blastocyte,
    30  embryo, or fetus at that gestational increment.
    31    2. Upon the submission of a request to the department by  any  person,
    32  hospital,  physician,  or medical facility for one copy of the materials
    33  published in accordance  with  subdivision  one  of  this  section,  the
    34  department  shall  make the requested copy of the materials available to
    35  the person, hospital, physician, or medical facility that requested  the
    36  copy.
    37    3.  The  department  shall  prepare  and  conduct a public information
    38  program to inform women of all available governmental programs and agen-
    39  cies that provide services or assistance for family  planning,  prenatal
    40  care, child care, or alternatives to abortion.
    41    §  4164-j. Culpability of the physician. 1. The failure of a physician
    42  to satisfy the conditions of section forty-one hundred  sixty-four-d  of
    43  this  title  prior to performing or inducing an abortion upon a pregnant
    44  woman may be the basis of both of the following:
    45    (a) A civil action for compensatory and exemplary damages as described
    46  in subdivision two of this section;
    47    (b) disciplinary action under subdivision fifty of section  sixty-five
    48  hundred thirty of the education law.
    49    2. (a) Subject to the provisions of paragraph (b) of this subdivision,
    50  any  physician who performs or induces an abortion with actual knowledge
    51  that the conditions specified in section forty-one hundred  sixty-four-d
    52  of this title have not been satisfied or with a heedless indifference as
    53  to whether those conditions have been satisfied is liable in compensato-
    54  ry  and exemplary damages in a civil action to any person, or the repre-
    55  sentative of the estate of any person, who sustains  injury,  death,  or
    56  loss  to  person or property as a result of the failure to satisfy those

        A. 5389                             9
     1  conditions. In the civil action, the court additionally  may  enter  any
     2  injunctive or other equitable relief that it considers appropriate.
     3    (b)  The  following  shall  be  affirmative defenses in a civil action
     4  authorized by paragraph (a) of this subdivision:
     5    (1) the physician performed or induced the abortion under the  circum-
     6  stances  described  in  section  forty-one  hundred sixty-four-g of this
     7  title; and
     8    (2) the physician made a good faith effort to satisfy  the  conditions
     9  specified in section forty-one hundred sixty-four-d of this title.
    10    3.  An employer or other principal is not liable in damages in a civil
    11  action authorized by paragraph (a) of subdivision two of this section on
    12  the basis of the doctrine of respondent superior unless  either  of  the
    13  following applies:
    14    (a)  the  employer  or other principal had actual knowledge or, by the
    15  exercise of reasonable diligence, should have known that an employee  or
    16  agent  performed  or  induced an abortion with actual knowledge that the
    17  conditions specified in section forty-one hundred sixty-four-d  of  this
    18  title  had  not  been  satisfied  or  with a heedless indifference as to
    19  whether those conditions had been satisfied; or
    20    (b) the employer or other principal negligently failed to  secure  the
    21  compliance  of  an  employee  or  agent  with  section forty-one hundred
    22  sixty-four-d of this title.
    23    4. The provisions of this section shall be the exclusive civil  remedy
    24  for persons, or the representatives of estates of persons, who allegedly
    25  sustain  injury,  death,  or loss to person or property as a result of a
    26  failure to satisfy the conditions specified in section forty-one hundred
    27  sixty-four-d of this title.
    28    § 4164-k. Culpability of the pregnant woman. A pregnant woman on  whom
    29  an  abortion  is  performed or induced in violation of the provisions of
    30  this title is not guilty of violating any of those  provisions;  is  not
    31  guilty  of  attempting to commit, conspiring to commit, or complicity in
    32  committing a violation of any of those provisions; and is not subject to
    33  a civil penalty based on the abortion  being  performed  or  induced  in
    34  violation of any of those provisions.
    35    §  4164-l.  Civil  action. 1. A woman who meets any one or more of the
    36  following criteria may file a civil action for the wrongful death of her
    37  unborn child:
    38    (a) A woman on whom an abortion was performed or induced in  violation
    39  of  the  provisions  of  subdivision  two  of  section forty-one hundred
    40  sixty-four-c  or  subdivision   two   of   section   forty-one   hundred
    41  sixty-four-f of this title;
    42    (b)  A  woman on whom an abortion was performed or induced who was not
    43  given the information described in paragraphs (a) and (b) of subdivision
    44  one of section forty-one hundred sixty-four-e of this title or  who  did
    45  not sign a form described in paragraph (c) of subdivision one of section
    46  forty-one hundred sixty-four-e of this title.
    47    2.  A  woman  who prevails in an action filed under subdivision one of
    48  this section shall receive both of the following  from  the  person  who
    49  committed  the  one  or  more  acts described in subdivision one of this
    50  section:
    51    (a) damages in an amount equal to ten thousand dollars  or  an  amount
    52  determined  by the trier of fact after consideration of the evidence (at
    53  the mother's election at any time prior to final  judgment)  subject  to
    54  the  same  defenses and requirements of proof, except any requirement of
    55  live birth, as would apply to a suit for the wrongful death of  a  child
    56  who had been born alive; and

        A. 5389                            10
     1    (b) court costs and reasonable attorney's fees.
     2    3.  If  the defendant in an action filed under subdivision one of this
     3  section prevails and the court finds the action  to  be  frivolous,  the
     4  court shall award the defendant reasonable attorney's fees in accordance
     5  with  section eighty-three hundred three-a of the civil practice law and
     6  rules.
     7    § 3. Section 6530 of the education law is  amended  by  adding  a  new
     8  subdivision 50 to read as follows:
     9    (50)  Failure  to comply with any of the requirements regarding making
    10  or maintaining medical records or documents described in subdivision one
    11  of section forty-one hundred sixty-four-c, subdivisions one and three of
    12  section forty-one hundred sixty-four-f or subdivision three  of  section
    13  forty-one hundred sixty-four-g of the public health law.
    14    §  4.  The penal law is amended by adding a new section 125.41 to read
    15  as follows:
    16  § 125.41 Abortion in the third degree.
    17    A person is guilty of abortion in the third  degree  when  he  or  she
    18  commits  an abortional act upon a female, before determining whether the
    19  unborn human individual the pregnant female is carrying has a detectable
    20  heartbeat, as provided in title  five-B  of  article  forty-one  of  the
    21  public health law.
    22    Abortion in the third degree is a class E felony.
    23    §  5.  a.  There  is hereby created the joint legislative committee on
    24  adoption promotion and support. The committee may review  or  study  any
    25  matter that it considers relevant to the operation of the adoption proc-
    26  ess  in  New  York,  with priority given to the study or review of mech-
    27  anisms to enhance the effectiveness and awareness of the process.
    28    b. The committee shall  consist  of  three  members  of  the  assembly
    29  appointed by the speaker of the assembly and three members of the senate
    30  appointed  by  the  temporary president of the senate. Not more than two
    31  members appointed by the speaker of the assembly and not more  than  two
    32  members appointed by the temporary president of the senate may be of the
    33  same  political  party.  Each  member of the committee shall hold office
    34  during the legislative session in which  the  member  is  appointed  and
    35  until a successor has been appointed, notwithstanding the adjournment of
    36  the  session  in which the member was appointed or the expiration of the
    37  member's term as a member of the legislature.  Any  vacancies  occurring
    38  among  the members of the committee shall be filled in the manner of the
    39  original appointment.
    40    c. The committee shall have the  same  powers  as  other  standing  or
    41  select committees of the legislature.
    42    §  6.  a.  A  court  judgment  or  order suspending enforcement of any
    43  provision of this act shall not to be regarded as tantamount  to  repeal
    44  of that provision.
    45    b. After the issuance of a decision by the supreme court of the United
    46  States  overruling Roe v. Wade, 410 U.S. 113 (1973), the issuance of any
    47  other court order or judgment restoring, expanding,  or  clarifying  the
    48  authority  of  states  to  prohibit  or regulate abortion entirely or in
    49  part, or the effective date of an amendment to the Constitution  of  the
    50  United  States  restoring,  expanding,  or  clarifying  the authority of
    51  states to prohibit or regulate abortion entirely or in part, the  attor-
    52  ney general may apply to the pertinent state or federal court for either
    53  or both of the following:
    54    (1)  A  declaration  that  any  one or more provisions of this act are
    55  constitutional;

        A. 5389                            11
     1    (2) A judgment or order lifting an injunction against the  enforcement
     2  of any one or more provisions of this act.
     3    c.  If the attorney general fails to apply for the relief described in
     4  this section within the thirty-day period after  the  occurrence  of  an
     5  event  described in subdivision b of this section, any county prosecutor
     6  may apply to the appropriate state or federal court for such relief.
     7    § 7. The commissioner of the department of health  is  authorized  and
     8  directed  to promulgate all rules and regulations he or she deems neces-
     9  sary and appropriate to implement the  provisions  of  this  act  on  or
    10  before its effective date, including, but not limited to:
    11    a.  rules  specifying the appropriate methods of determining the pres-
    12  ence of a fetal heartbeat of an  unborn  individual  based  on  standard
    13  medical practice; and
    14    b.  information  required  to  be  submitted by a physician performing
    15  abortions to the department of health.
    16    § 8. Severability. If any clause, sentence, paragraph, section or part
    17  of this act shall be adjudged by any court of competent jurisdiction  to
    18  be  invalid  and  after  exhaustion  of all further judicial review, the
    19  judgment shall not affect, impair or invalidate the  remainder  thereof,
    20  but  shall  be  confined in its operation to the clause, sentence, para-
    21  graph, section or part of this act directly involved in the  controversy
    22  in which the judgment shall have been rendered.
    23    §  9. This act shall take effect on the first of January next succeed-
    24  ing the date on which it shall have become a law.
feedback