A08947 Summary:

BILL NOA08947
 
SAME ASNo same as
 
SPONSORDiPietro
 
COSPNSR
 
MLTSPNSR
 
Add Art 41 Title V-B SS4164-a - 4164-l, Pub Health L; amd S6530, Ed L; add S125.41, Pen L
 
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 authorizing 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 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.
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A08947 Actions:

BILL NOA08947
 
03/04/2014referred to health
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A08947 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8947
 
                   IN ASSEMBLY
 
                                      March 4, 2014
                                       ___________
 
        Introduced by M. of A. DiPIETRO -- read once and referred to the Commit-
          tee 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.
    14    6. Cardiac activity begins at a biologically  identifiable  moment  in

    15  time, normally when the fetal heart is formed in the gestational sac.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14069-01-4

        A. 8947                             2
 
     1    7.  The  state of New York has legitimate interests from the outset of
     2  the pregnancy in protecting the health of the woman and the life  of  an
     3  unborn human individual who may be born.
     4    8.  In  order to make an informed choice about whether to continue her
     5  pregnancy, the pregnant woman has a legitimate interest in  knowing  the
     6  likelihood  of  the  fetus  surviving  to full-term birth based upon the
     7  presence of cardiac activity.
     8    § 2. Article 41 of the public health law is amended by  adding  a  new

     9  title 5-B to read as follows:
    10                                  TITLE V-B
    11                                  ABORTION
    12  Section 4164-a. Definitions.
    13          4164-b. Application.
    14          4164-c. Detectable heartbeat.
    15          4164-d. Preliminary informed consent.
    16          4164-e. Informed consent after detection of a heartbeat.
    17          4164-f. Performance of abortion.
    18          4164-g. Medical emergency.
    19          4164-h. Reporting.
    20          4164-i. Duties of the department.
    21          4164-j. Culpability of the physician.
    22          4164-k. Culpability of the pregnant woman.
    23          4164-l. Civil action.
    24    § 4164-a. Definitions. As used in this title:

    25    1. "Conception" means fertilization.
    26    2.  "Contraceptive"  means  a  drug, device, or chemical that prevents
    27  conception.
    28    3. "DNA" means deoxyribonucleic acid.
    29    4. "Fetal heartbeat" means cardiac activity or the steady and  repeti-
    30  tive rhythmic contraction of the fetal heart within the gestational sac.
    31    5.  "Fetus" means the human offspring developing during pregnancy from
    32  the moment of conception and includes the embryonic  stage  of  develop-
    33  ment.
    34    6.  "Gestational  age"  means the age of an unborn human individual as
    35  calculated from the first day of the last menstrual period of a pregnant
    36  woman.
    37    7. "Gestational sac" means the structure that comprises  the  extraem-

    38  bryonic  membranes  that envelop the fetus and that is typically visible
    39  by ultrasound after the fourth week of pregnancy.
    40    8. "Intrauterine pregnancy" means a pregnancy in which  the  fetus  is
    41  attached to the placenta within the uterus of the pregnant woman.
    42    9.  "Medical emergency" means a condition of a pregnant woman that, in
    43  the reasonable judgment of the physician who  is  attending  the  woman,
    44  creates  an  immediate  threat  of  serious risk to the life or physical
    45  health of the woman from the continuation of the pregnancy necessitating
    46  the immediate performance or inducement of an abortion.
    47    10. "Medical necessity" means a medical condition of a pregnant  woman
    48  that,  in  the reasonable judgment of the physician who is attending the

    49  woman, so complicates the pregnancy that it necessitates  the  immediate
    50  performance or inducement of an abortion.
    51    11. "Physician" means an individual licensed under article one hundred
    52  thirty-one  of  the  education  law  to practice medicine and surgery or
    53  osteopathic medicine and surgery.
    54    12. "Pregnancy" means the human  female  reproductive  condition  that
    55  begins  with  fertilization,  when  the woman is carrying the developing

        A. 8947                             3
 
     1  human offspring, and that is calculated from the first day of  the  last
     2  menstrual period of the woman.
     3    13. "Probable gestational age of the embryo or fetus" means the gesta-

     4  tional  age  that,  in  the judgment of a physician, is, with reasonable
     5  probability, the gestational age of the embryo or fetus at the time that
     6  the physician informs a pregnant woman  pursuant  to  section  forty-one
     7  hundred sixty-four-d of this title.
     8    14.  "Spontaneous  miscarriage" means the natural or accidental termi-
     9  nation of a pregnancy and the expulsion of the fetus,  typically  caused
    10  by  genetic  defects in the fetus or physical abnormalities in the preg-
    11  nant woman.
    12    15. "Standard medical practice" means the degree of skill,  care,  and
    13  diligence that a physician of the same medical specialty would employ in
    14  like circumstances. As applied to the method used to determine the pres-

    15  ence  of  a  fetal  heartbeat  for purposes of section forty-one hundred
    16  sixty-four-c of this title, "standard medical practice" includes employ-
    17  ing the appropriate means of detection depending on the estimated gesta-
    18  tional age of the fetus and the condition of the woman and her  pregnan-
    19  cy.
    20    16.  "Unborn  human  individual"  means  an individual organism of the
    21  species homo sapiens from fertilization until live birth.
    22    § 4164-b. Application. 1. The provisions of this title apply  only  to
    23  abortions involving intrauterine pregnancies.
    24    2.  The provisions of this title shall not apply to abortions in cases
    25  in which the method used to test for the presence of a  fetal  heartbeat

    26  in  compliance  with subdivision one of section forty-one hundred sixty-
    27  four-c of this title does not reveal a fetal heartbeat.
    28    3. Nothing in this title shall prohibit the sale,  use,  prescription,
    29  or  administration  of  a drug, device, or chemical that is designed for
    30  contraceptive purposes.
    31    § 4164-c. Detectable heartbeat. 1. Any person who intends  to  perform
    32  or  induce an abortion on a pregnant woman shall determine whether there
    33  is a detectable fetal heartbeat of the unborn human individual the preg-
    34  nant woman is carrying. The method of  determining  the  presence  of  a
    35  fetal  heartbeat shall be consistent with the person's good faith under-
    36  standing of standard medical practice and in accordance with all  appli-

    37  cable  rules  promulgated by the commissioner. The person who determines
    38  the presence or absence of a fetal heartbeat shall record in  the  preg-
    39  nant  woman's medical record the estimated gestational age of the unborn
    40  human individual, the method used to test for  a  fetal  heartbeat,  the
    41  date and time of the test, and the results of the test.
    42    2.  Except  as  provided  in section forty-one hundred sixty-four-g of
    43  this title, no person shall knowingly and purposefully perform or induce
    44  an abortion on a pregnant woman before:
    45    (a) determining in accordance with subdivision  one  of  this  section
    46  whether the unborn human individual the pregnant woman is carrying has a
    47  detectable heartbeat; and

    48    (b)  complying  with  the  notification  and  consent  requirements of
    49  section forty-one  hundred  sixty-four-d,  and  if  applicable,  section
    50  forty-one hundred sixty-four-e of this title.
    51    §  4164-d.  Preliminary  informed  consent.  1. Except when there is a
    52  medical emergency or medical necessity as provided in section  forty-one
    53  hundred  sixty-four-g  of  this title, an abortion shall be performed or
    54  induced only if all of the following conditions are satisfied:
    55    (a) At least twenty-four hours prior to the performance or  inducement
    56  of  the abortion, a physician meets with the pregnant woman in person in

        A. 8947                             4
 

     1  an individual, private setting and gives her an adequate opportunity  to
     2  ask  questions  about the abortion that will be performed or induced. At
     3  this meeting, the physician shall inform the  pregnant  woman,  verbally
     4  or,  if she is hearing impaired, by other means of communication, of all
     5  of the following:
     6    (1) the nature and purpose of the particular abortion procedure to  be
     7  used and the medical risks associated with that procedure;
     8    (2) the probable gestational age of the embryo or fetus; and
     9    (3)  the medical risks associated with the pregnant woman carrying the
    10  pregnancy to term.
    11    (b) The meeting described in paragraph (a) of  this  subdivision  need

    12  not  occur  at  the  facility  where  the abortion is to be performed or
    13  induced, and the physician involved in the meeting need  not  be  affil-
    14  iated  with  that  facility  or  with  the physician who is scheduled to
    15  perform or induce the abortion. The physician involved  in  the  meeting
    16  shall  provide  to  the  pregnant woman the physician's name and contact
    17  information.
    18    (c) At least twenty-four hours prior to the performance or  inducement
    19  of  the abortion, the physician who is to perform or induce the abortion
    20  or the physician's agent does each of the following in person, by  tele-
    21  phone,  by  certified mail, return receipt requested, or by regular mail
    22  evidenced by a certificate of mailing:

    23    (1) inform the pregnant woman of the name  of  the  physician  who  is
    24  scheduled to perform or induce the abortion;
    25    (2)  give  the  pregnant  woman  copies  of  the  published  materials
    26  described in section forty-one hundred sixty-four-i of this title; and
    27    (3) inform the pregnant woman that the  materials  given  pursuant  to
    28  section  forty-one  hundred  sixty-four-i of this title are published by
    29  the state and that they describe the embryo or fetus and  list  agencies
    30  that  offer  alternatives to abortion.  The pregnant woman may choose to
    31  examine or not to examine the materials. A physician or an  agent  of  a
    32  physician  may  choose  to  be  disassociated from the materials and may
    33  choose to comment or not comment on the materials.

    34    (d) If it has been determined that the  unborn  human  individual  the
    35  pregnant woman is carrying has a detectable heartbeat, the physician who
    36  is  to  perform  or  induce  the abortion shall comply with the informed
    37  consent requirements in section forty-one hundred sixty-four-e  of  this
    38  title in addition to complying with the informed consent requirements of
    39  this section.
    40    (e)  Prior to the performance or inducement of the abortion, the preg-
    41  nant woman signs a form consenting to the abortion and certifies both of
    42  the following on that form:
    43    (1) she has  received  the  information  and  materials  described  in
    44  section  forty-one hundred sixty-four-i of this title, and her questions

    45  about the abortion that will be performed or induced have been  answered
    46  in a satisfactory manner; and
    47    (2)  she  consents  to the particular abortion voluntarily, knowingly,
    48  intelligently, and without coercion by any person, and she is not  under
    49  the influence of any drug of abuse or alcohol.
    50    (f)  The  form  shall  contain the name and contact information of the
    51  physician who provided to the pregnant woman the  information  described
    52  in paragraph (a) of this subdivision.
    53    (g) Prior to the performance or inducement of the abortion, the physi-
    54  cian  who  is  scheduled to perform or induce the abortion or the physi-
    55  cian's agent receives a copy of the  pregnant  woman's  signed  form  on


        A. 8947                             5
 
     1  which  she  consents to the abortion and that includes the certification
     2  required by paragraph (e) of this subdivision.
     3    2.  If the conditions specified in this section are satisfied, consent
     4  to an abortion shall be presumed to be valid and effective.
     5    § 4164-e. Informed consent after detection of a heartbeat. 1.    If  a
     6  person  who intends to perform or induce an abortion on a pregnant woman
     7  has determined, under section forty-one  hundred  sixty-four-c  of  this
     8  title,  that  the unborn human individual the pregnant woman is carrying
     9  has a detectable heartbeat, the person shall not, except as provided  in
    10  subdivision  two  of  this section, perform or induce the abortion until

    11  all of the following requirements have been met and at least twenty-four
    12  hours have elapsed after the last of the requirements is met:
    13    (a) the person intending to  perform  or  induce  the  abortion  shall
    14  inform  the  pregnant  woman in writing that the unborn human individual
    15  the pregnant woman is carrying has a fetal heartbeat;
    16    (b) the person intending to  perform  or  induce  the  abortion  shall
    17  inform the pregnant woman, to the best of the person's knowledge, of the
    18  statistical probability of bringing the unborn human individual possess-
    19  ing a detectable fetal heartbeat to term based on the gestational age of
    20  the  unborn  human  individual  or,  if  the  commissioner has specified

    21  statistical probability information  pursuant  to  rules  adopted  under
    22  subdivision  three  of this section, shall provide to the pregnant woman
    23  that information; and
    24    (c) the pregnant woman shall sign a form acknowledging that the  preg-
    25  nant woman has received information from the person intending to perform
    26  or  induce  the  abortion  that the unborn human individual the pregnant
    27  woman is carrying has a fetal heartbeat and that the pregnant  woman  is
    28  aware  of the statistical probability of bringing the unborn human indi-
    29  vidual the pregnant woman is carrying to term.
    30    2. The provisions of subdivision one of this section shall  not  apply
    31  if  the  person  who  intends to perform or induce the abortion believes

    32  that a medical emergency  exists  that  prevents  compliance  with  such
    33  subdivision.
    34    3. The commissioner may adopt rules that specify information regarding
    35  the  statistical  probability  of  bringing  an  unborn human individual
    36  possessing a detectable heartbeat to term based on the  gestational  age
    37  of  the  unborn  human individual. The rules shall be based on available
    38  medical evidence.
    39    4. This section shall not have the effect of repealing or limiting any
    40  other provision of law relating to informed consent for an abortion.
    41    § 4164-f. Performance of abortion. 1. (a) A  person  who  performs  or
    42  induces  an  abortion  on  a  pregnant  woman  shall do whichever of the
    43  following is applicable:

    44    (1) If the reason for the abortion  purportedly  is  to  preserve  the
    45  health  of  the  pregnant  woman,  the person shall specify in a written
    46  document the medical condition that the abortion is asserted to  address
    47  and  the medical rationale for the person's conclusion that the abortion
    48  is necessary to address that condition; or
    49    (2) If the reason for the abortion  is  other  than  to  preserve  the
    50  health  of  the  pregnant  woman,  the person shall specify in a written
    51  document that maternal health is not the purpose of the abortion.
    52    (b) The person who specifies the information in the document described
    53  in paragraph (a) of this subdivision shall place  the  document  in  the

    54  pregnant woman's medical records. For at least seven years from the date
    55  the  document is created, the person who specifies the information shall
    56  maintain a copy of the document in the person's own records.

        A. 8947                             6
 
     1    2. In the event that testing reveals a fetal heartbeat as provided  in
     2  section forty-one hundred sixty-four-c of this title, except as provided
     3  in  subdivision  three  of  this  section, no person shall knowingly and
     4  purposefully perform or induce an abortion on a pregnant woman with  the
     5  specific  intent  of  causing or abetting the termination of the life of
     6  the unborn human individual the  pregnant  woman  is  carrying.  Whoever

     7  violates the provisions of this subdivision is guilty of abortion in the
     8  third degree as provided in section 125.41 of the penal law.
     9    3.  (a)  The  provisions  of subdivision two of this section shall not
    10  apply to a physician who performs  a  medical  procedure  that,  in  the
    11  physician's  reasonable  medical  judgment,  is  designed or intended to
    12  prevent the death of the pregnant woman or to prevent a serious risk  of
    13  the  substantial  and irreversible impairment of a major bodily function
    14  of the pregnant woman, as provided in section forty-one  hundred  sixty-
    15  four-g of this title.
    16    (b)  A physician who performs a medical procedure as described in this
    17  subdivision shall declare, in  a  written  document,  that  the  medical

    18  procedure  is  necessary,  to  the  best  of  the physician's reasonable
    19  medical judgment, to prevent the death  of  the  pregnant  woman  or  to
    20  prevent a serious risk of the substantial and irreversible impairment of
    21  a  major  bodily  function  of  the pregnant woman. In the document, the
    22  physician shall specify the pregnant woman's medical condition that  the
    23  medical  procedure  is asserted to address and the medical rationale for
    24  the physician's conclusion that the medical procedure  is  necessary  to
    25  prevent  the death of the pregnant woman or to prevent a serious risk of
    26  the substantial and irreversible impairment of a major  bodily  function
    27  of the pregnant woman.
    28    (c)  A physician who performs a medical procedure as described in this

    29  subdivision shall place the written document required by  this  subdivi-
    30  sion  in  the pregnant woman's medical records. For at least seven years
    31  from the date the document is created, the physician  shall  maintain  a
    32  copy of the document in the physician's own records.
    33    4.  The  provisions  of subdivision two of this section shall not have
    34  the effect of repealing or limiting any  other  provision  of  law  that
    35  restricts or regulates the performance or inducement of an abortion by a
    36  particular method or during a particular stage of a pregnancy.
    37    §  4164-g.  Medical  emergency.  1.  If a medical emergency or medical
    38  necessity compels the performance or  inducement  of  an  abortion,  the

    39  physician who will perform or induce the abortion, prior to its perform-
    40  ance  or inducement, if possible, shall inform the pregnant woman of the
    41  medical indications supporting the physician's judgment that an  immedi-
    42  ate abortion is necessary.
    43    2.  The  provisions  of  sections  forty-one  hundred sixty-four-d and
    44  forty-one hundred sixty-four-e of this title shall not apply to a physi-
    45  cian who performs or induces the abortion if the physician believes that
    46  a medical emergency exists that prevents compliance with those sections.
    47    3. Any physician who performs or induces an abortion without the prior
    48  satisfaction of the conditions specified in sections  forty-one  hundred
    49  sixty-four-d and forty-one hundred sixty-four-e of this title because of

    50  a medical emergency or medical necessity shall make written notations in
    51  the pregnant woman's medical records of the following:
    52    (a)  the physician's belief that a medical emergency necessitating the
    53  abortion existed;
    54    (b) the medical  condition  of  the  pregnant  woman  that  assertedly
    55  prevented  compliance  with the provisions of sections forty-one hundred
    56  sixty-four-d and forty-one hundred sixty-four-e of this title; and

        A. 8947                             7
 
     1    (c) the reasons for the conclusion that a medical emergency or medical
     2  necessity exists.
     3    4.  The physician shall maintain in the physician's own records a copy
     4  of the notations referred to in subdivision three of this section for at

     5  least seven years from the date the notations are made.
     6    § 4164-h. Reporting.  1.  A  physician  who  performs  or  induces  or
     7  attempts  to  perform  or  induce  an abortion on a pregnant woman shall
     8  submit a report to the department in accordance with the  forms,  rules,
     9  and  regulations  adopted  by  the  department  that includes all of the
    10  information the physician is required to certify in writing or determine
    11  under the provisions of this title. If a person other than the physician
    12  makes or maintains a record as required on the physician's behalf or  at
    13  the  physician's  direction, that person shall comply with the reporting
    14  requirements as if the person were the physician.

    15    2. By September thirtieth of each year, the department shall  issue  a
    16  public  report  that  provides statistics for the previous calendar year
    17  compiled from all of the reports covering that calendar  year  submitted
    18  to  the department in accordance with this section for each of the items
    19  listed in subdivision one of this section. The report shall also provide
    20  the statistics for each previous calendar year in  which  a  report  was
    21  filed  with the department pursuant to this section, adjusted to reflect
    22  any additional information that a physician provides to  the  department
    23  in a late or corrected report.  The department shall ensure that none of
    24  the  information  included  in  the  report could reasonably lead to the

    25  identification of any pregnant woman upon whom an abortion is performed.
    26    3. The physician shall submit the report described in subdivision  one
    27  of  this  section  to the department of health within fifteen days after
    28  the woman is discharged. If the physician fails  to  submit  the  report
    29  more  than  thirty  days  after that fifteen-day deadline, the physician
    30  shall be subject to a late fee of five hundred dollars  for  each  addi-
    31  tional thirty-day period or portion of a thirty-day period the report is
    32  overdue.  A  physician  who  is  required to submit to the department of
    33  health a report under subdivision one of this section and  who  has  not
    34  submitted  a  report or has submitted an incomplete report more than one

    35  year following the fifteen-day deadline may, in an action brought by the
    36  department, be directed by a court of competent jurisdiction to submit a
    37  complete report to the department within a period of time  stated  in  a
    38  court order or be subject to contempt of court.
    39    4.  No  person  shall  falsify any report required under this section.
    40  Whoever violates the provisions of this section is  guilty  of  abortion
    41  report falsification, a class A misdemeanor.
    42    § 4164-i. Duties of the department. 1. The department shall publish in
    43  English  and  in Spanish, in a typeface large enough to be clearly legi-
    44  ble, and in an easily comprehensible format, the following materials  on
    45  the department's web site:

    46    (a)  Materials  that  inform  the pregnant woman about family planning
    47  information, of publicly funded agencies that are available to assist in
    48  family planning, and of public and private agencies  and  services  that
    49  are  available to assist her through the pregnancy, upon childbirth, and
    50  while the child is dependent, including, but not  limited  to,  adoption
    51  agencies.  The  materials  shall  be  geographically  indexed; include a
    52  comprehensive list of the  available  agencies,  a  description  of  the
    53  services  offered  by  the  agencies,  and  the  telephone  numbers  and
    54  addresses of the agencies; and inform the pregnant woman about available
    55  medical assistance benefits for prenatal care, childbirth, and  neonatal

    56  care  and  about the support obligations of the father of a child who is

        A. 8947                             8
 
     1  born alive. The department shall ensure that the materials described  in
     2  this  paragraph  are  comprehensive  and  do  not directly or indirectly
     3  promote, exclude, or  discourage  the  use  of  any  agency  or  service
     4  described in this subdivision.
     5    (b)  Materials  that inform the pregnant woman of the probable anatom-
     6  ical  and  physiological  characteristics  of  the  zygote,  blastocyte,
     7  embryo,  or  fetus  at  two-week  gestational  increments  for the first
     8  sixteen weeks of pregnancy and at four-week gestational increments  from
     9  the  seventeenth  week of pregnancy to full term, including any relevant

    10  information regarding the time at which  the  fetus  possibly  would  be
    11  viable.  The department shall cause these materials to be published only
    12  after it consults with the medical society of the state of New York  and
    13  the  New York section of the American college of obstetricians and gyne-
    14  cologists relative to the probable anatomical and physiological  charac-
    15  teristics  of  a  zygote,  blastocyte,  embryo,  or fetus at the various
    16  gestational increments. The materials shall use language that is  under-
    17  standable  by  the average person who is not medically trained, shall be
    18  objective and nonjudgmental, and shall include only accurate  scientific
    19  information  about the zygote, blastocyte, embryo, or fetus at the vari-

    20  ous gestational increments. If the materials  use  a  pictorial,  photo-
    21  graphic, or other depiction to provide information regarding the zygote,
    22  blastocyte, embryo, or fetus, the materials shall include, in a conspic-
    23  uous  manner, a scale or other explanation that is understandable by the
    24  average person and that can be used to determine the actual size of  the
    25  zygote,  blastocyte, embryo, or fetus at a particular gestational incre-
    26  ment as contrasted with the depicted size  of  the  zygote,  blastocyte,
    27  embryo, or fetus at that gestational increment.
    28    2.  Upon  the submission of a request to the department by any person,
    29  hospital, physician, or medical facility for one copy of  the  materials

    30  published  in  accordance  with  subdivision  one  of  this section, the
    31  department shall make the requested copy of the materials  available  to
    32  the  person, hospital, physician, or medical facility that requested the
    33  copy.
    34    3. The department shall  prepare  and  conduct  a  public  information
    35  program to inform women of all available governmental programs and agen-
    36  cies  that  provide services or assistance for family planning, prenatal
    37  care, child care, or alternatives to abortion.
    38    § 4164-j. Culpability of the physician. 1. The failure of a  physician
    39  to  satisfy  the conditions of section forty-one hundred sixty-four-d of
    40  this title prior to performing or inducing an abortion upon  a  pregnant

    41  woman may be the basis of both of the following:
    42    (a) A civil action for compensatory and exemplary damages as described
    43  in subdivision two of this section;
    44    (b)  disciplinary action under subdivision fifty of section sixty-five
    45  hundred thirty of the education law.
    46    2. (a) Subject to the provisions of paragraph (b) of this subdivision,
    47  any physician who performs or induces an abortion with actual  knowledge
    48  that  the conditions specified in section forty-one hundred sixty-four-d
    49  of this title have not been satisfied or with a heedless indifference as
    50  to whether those conditions have been satisfied is liable in compensato-
    51  ry and exemplary damages in a civil action to any person, or the  repre-

    52  sentative  of  the  estate of any person, who sustains injury, death, or
    53  loss to person or property as a result of the failure to  satisfy  those
    54  conditions.  In  the  civil action, the court additionally may enter any
    55  injunctive or other equitable relief that it considers appropriate.

        A. 8947                             9
 
     1    (b) The following shall be affirmative  defenses  in  a  civil  action
     2  authorized by paragraph (a) of this subdivision:
     3    (1)  the physician performed or induced the abortion under the circum-
     4  stances described in section  forty-one  hundred  sixty-four-g  of  this
     5  title; and
     6    (2)  the  physician made a good faith effort to satisfy the conditions

     7  specified in section forty-one hundred sixty-four-d of this title.
     8    3. An employer or other principal is not liable in damages in a  civil
     9  action authorized by paragraph (a) of subdivision two of this section on
    10  the  basis  of  the doctrine of respondent superior unless either of the
    11  following applies:
    12    (a) the employer or other principal had actual knowledge  or,  by  the
    13  exercise  of reasonable diligence, should have known that an employee or
    14  agent performed or induced an abortion with actual  knowledge  that  the
    15  conditions  specified  in section forty-one hundred sixty-four-d of this
    16  title had not been satisfied or  with  a  heedless  indifference  as  to
    17  whether those conditions had been satisfied; or

    18    (b)  the  employer or other principal negligently failed to secure the
    19  compliance of an  employee  or  agent  with  section  forty-one  hundred
    20  sixty-four-d of this title.
    21    4.  The provisions of this section shall be the exclusive civil remedy
    22  for persons, or the representatives of estates of persons, who allegedly
    23  sustain injury, death, or loss to person or property as a  result  of  a
    24  failure to satisfy the conditions specified in section forty-one hundred
    25  sixty-four-d of this title.
    26    §  4164-k. Culpability of the pregnant woman. A pregnant woman on whom
    27  an abortion is performed or induced in violation of  the  provisions  of
    28  this  title  is  not guilty of violating any of those provisions; is not

    29  guilty of attempting to commit, conspiring to commit, or  complicity  in
    30  committing a violation of any of those provisions; and is not subject to
    31  a  civil  penalty  based  on  the abortion being performed or induced in
    32  violation of any of those provisions.
    33    § 4164-l. Civil action. 1. A woman who meets any one or  more  of  the
    34  following criteria may file a civil action for the wrongful death of her
    35  unborn child:
    36    (a)  A woman on whom an abortion was performed or induced in violation
    37  of the provisions  of  subdivision  two  of  section  forty-one  hundred
    38  sixty-four-c   or   subdivision   two   of   section  forty-one  hundred
    39  sixty-four-f of this title;

    40    (b) A woman on whom an abortion was performed or induced who  was  not
    41  given the information described in paragraphs (a) and (b) of subdivision
    42  one  of  section forty-one hundred sixty-four-e of this title or who did
    43  not sign a form described in paragraph (c) of subdivision one of section
    44  forty-one hundred sixty-four-e of this title.
    45    2. A woman who prevails in an action filed under  subdivision  one  of
    46  this  section  shall  receive  both of the following from the person who
    47  committed the one or more acts described  in  subdivision  one  of  this
    48  section:
    49    (a)  damages  in  an amount equal to ten thousand dollars or an amount
    50  determined by the trier of fact after consideration of the evidence  (at

    51  the  mother's  election  at any time prior to final judgment) subject to
    52  the same defenses and requirements of proof, except any  requirement  of
    53  live  birth,  as would apply to a suit for the wrongful death of a child
    54  who had been born alive; and
    55    (b) court costs and reasonable attorney's fees.

        A. 8947                            10
 
     1    3. If the defendant in an action filed under subdivision one  of  this
     2  section  prevails  and  the  court finds the action to be frivolous, the
     3  court shall award the defendant reasonable attorney's fees in accordance
     4  with section eighty-three hundred three-a of the civil practice law  and
     5  rules.
     6    §  3.  Section  6530  of  the education law is amended by adding a new

     7  subdivision 50 to read as follows:
     8    (50) Failure to comply with any of the requirements  regarding  making
     9  or maintaining medical records or documents described in subdivision one
    10  of section forty-one hundred sixty-four-c, subdivisions one and three of
    11  section  forty-one  hundred sixty-four-f or subdivision three of section
    12  forty-one hundred sixty-four-g of the public health law.
    13    § 4. The penal law is amended by adding a new section 125.41  to  read
    14  as follows:
    15  § 125.41 Abortion in the third degree.
    16    A  person  is  guilty  of  abortion in the third degree when he or she
    17  commits an abortional act upon a female, before determining whether  the
    18  unborn human individual the pregnant female is carrying has a detectable

    19  heartbeat,  as  provided  in  title  five-B  of article forty-one of the
    20  public health law.
    21    Abortion in the third degree is a class E felony.
    22    § 5. a. There is hereby created the  joint  legislative  committee  on
    23  adoption  promotion  and  support. The committee may review or study any
    24  matter that it considers relevant to the operation of the adoption proc-
    25  ess in New York, with priority given to the study  or  review  of  mech-
    26  anisms to enhance the effectiveness and awareness of the process.
    27    b.  The  committee  shall  consist  of  three  members of the assembly
    28  appointed by the speaker of the assembly and three members of the senate
    29  appointed by the temporary president of the senate. Not  more  than  two
    30  members  appointed  by the speaker of the assembly and not more than two

    31  members appointed by the temporary president of the senate may be of the
    32  same political party. Each member of the  committee  shall  hold  office
    33  during  the  legislative  session  in  which the member is appointed and
    34  until a successor has been appointed, notwithstanding the adjournment of
    35  the session in which the member was appointed or the expiration  of  the
    36  member's  term  as  a member of the legislature. Any vacancies occurring
    37  among the members of the committee shall be filled in the manner of  the
    38  original appointment.
    39    c.  The  committee  shall  have  the  same powers as other standing or
    40  select committees of the legislature.
    41    § 6. a. A court  judgment  or  order  suspending  enforcement  of  any
    42  provision  of  this act shall not to be regarded as tantamount to repeal
    43  of that provision.
    44    b. After the issuance of a decision by the supreme court of the United

    45  States overruling Roe v. Wade, 410 U.S. 113 (1973), the issuance of  any
    46  other  court  order  or judgment restoring, expanding, or clarifying the
    47  authority of states to prohibit or  regulate  abortion  entirely  or  in
    48  part,  or  the effective date of an amendment to the Constitution of the
    49  United States restoring,  expanding,  or  clarifying  the  authority  of
    50  states  to prohibit or regulate abortion entirely or in part, the attor-
    51  ney general may apply to the pertinent state or federal court for either
    52  or both of the following:
    53    (1) A declaration that any one or more  provisions  of  this  act  are
    54  constitutional;
    55    (2)  A judgment or order lifting an injunction against the enforcement
    56  of any one or more provisions of this act.

        A. 8947                            11
 

     1    c. If the attorney general fails to apply for the relief described  in
     2  this  section  within  the  thirty-day period after the occurrence of an
     3  event described in subdivision b of this section, any county  prosecutor
     4  may apply to the appropriate state or federal court for such relief.
     5    §  7.  The  commissioner of the department of health is authorized and
     6  directed to promulgate all rules and regulations he or she deems  neces-
     7  sary  and  appropriate  to  implement  the  provisions of this act on or
     8  before its effective date, including, but not limited to:
     9    a. rules specifying the appropriate methods of determining  the  pres-
    10  ence  of  a  fetal  heartbeat  of an unborn individual based on standard
    11  medical practice; and
    12    b. information required to be  submitted  by  a  physician  performing
    13  abortions to the department of health.

    14    § 8. Severability. If any clause, sentence, paragraph, section or part
    15  of  this act shall be adjudged by any court of competent jurisdiction to
    16  be invalid and after exhaustion of  all  further  judicial  review,  the
    17  judgment  shall  not affect, impair or invalidate the remainder thereof,
    18  but shall be confined in its operation to the  clause,  sentence,  para-
    19  graph,  section or part of this act directly involved in the controversy
    20  in which the judgment shall have been rendered.
    21    § 9. This act shall take effect on the first of January next  succeed-
    22  ing the date on which it shall have become a law.
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