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S00438 Summary:

BILL NO    S00438 

SAME AS    No same as 

SPONSOR    STEWART-COUSINS

COSPNSR    AVELLA, BRESLIN, DILAN, GIANARIS, GIPSON, HASSELL-THOMPSON, HOYLMAN,
           KRUEGER, LATIMER, MONTGOMERY, O'BRIEN, PARKER, PERALTA, PERKINS,
           RIVERA, SAMPSON, SERRANO, SQUADRON, STAVISKY, TKACZYK

MLTSPNSR   

Add Art 17 SS1700 - 1703, amd S4164, Pub Health L; rpld S6811 sub 8, Ed L; rpld
SS125.40, 125.45, 125.50, 125.55 & 125.60, amd Art 125 Art Head, SS125.00,
125.05, 125.15 & 125.20, Pen L; amd S700.05, CP L; amd S673, County L; amd S4,
Judy L

Enacts the "reproductive health act"; provides a fundamental right to choose
contraception and the right of a female to determine the course of a pregnancy;
authorizes abortion prior to viability; defines terms; decriminalizes abortion.
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S00438 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                          438

                              2013-2014 Regular Sessions

                                   I N  S E N A T E

                                      (PREFILED)

                                    January 9, 2013
                                      ___________

       Introduced  by  Sens.  STEWART-COUSINS,  ADAMS,  AVELLA, BRESLIN, DILAN,
         GIANARIS,  HASSELL-THOMPSON,  KRUEGER,  LATIMER,  MONTGOMERY,  PARKER,
         PERALTA, PERKINS, RIVERA, SAMPSON, SERRANO, SQUADRON, STAVISKY -- read
         twice  and  ordered  printed,  and when printed to be committed to the
         Committee on Health

       AN ACT to amend the public health  law,  in  relation  to  enacting  the
         "reproductive  health  act" and revising existing provisions regarding
         abortions; to amend the penal law, the  criminal  procedure  law,  the
         county  law  and the judiciary law, in relation to abortion; to repeal
         certain provisions of the  education  law  relating  to  the  sale  of
         contraceptives;  and  to  repeal  certain  provisions of the penal law
         relating to abortion

         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section  1.  Short title.  This act shall be known and may be cited as
    2  the "reproductive health act".
    3    S 2. The public health law is amended by adding a new  article  17  to
    4  read as follows:
    5                                  ARTICLE 17
    6                           REPRODUCTIVE HEALTH ACT
    7  SECTION 1700. STATEMENT OF POLICY.
    8          1701. AUTHORIZED PERFORMANCE OF ABORTIONS.
    9          1702. STATE REGULATION.
   10          1703. DEFINITIONS.
   11    S 1700. STATEMENT OF POLICY. THE LEGISLATURE DECLARES THAT EVERY INDI-
   12  VIDUAL  HAS  A  FUNDAMENTAL  RIGHT  OF  PRIVACY  WITH RESPECT TO CERTAIN
   13  PERSONAL REPRODUCTIVE DECISIONS.  ACCORDINGLY, IT IS THE  PUBLIC  POLICY
   14  OF THE STATE OF NEW YORK THAT:
   15    1.  EVERY  INDIVIDUAL  HAS  THE  FUNDAMENTAL RIGHT TO CHOOSE OR REFUSE
   16  CONTRACEPTION; AND
   17    2. EVERY FEMALE HAS THE FUNDAMENTAL RIGHT TO DETERMINE THE  COURSE  OF
   18  HER  PREGNANCY, WHICH INCLUDES THE RIGHT TO CARRY A PREGNANCY TO TERM OR
   19  TO TERMINATE A PREGNANCY: (I) IN THE ABSENCE  OF  FETAL  VIABILITY;  AND

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD03449-01-3
       S. 438                              2

    1  (II)  AT  ANY TIME IF SUCH TERMINATION IS NECESSARY TO PROTECT THE PREG-
    2  NANT FEMALE'S LIFE OR HEALTH.
    3    S  1701.  AUTHORIZED  PERFORMANCE  OF ABORTIONS. THE PERFORMANCE OF AN
    4  ABORTION BY A QUALIFIED, LICENSED HEALTH CARE PRACTITIONER, ACTING WITH-
    5  IN THE SCOPE OF HIS OR HER PRACTICE, IS AUTHORIZED:
    6    1. IN THE ABSENCE OF FETAL VIABILITY; AND
    7    2. AT ANY TIME, IF IN THE GOOD FAITH MEDICAL JUDGMENT OF A  PHYSICIAN,
    8  SUCH TERMINATION IS NECESSARY TO PROTECT THE FEMALE'S LIFE OR HEALTH.
    9    S  1702.  STATE  REGULATION.  1. THE STATE SHALL NOT DENY, REGULATE OR
   10  RESTRICT THE RIGHTS SET FORTH IN SECTION SEVENTEEN HUNDRED OF THIS ARTI-
   11  CLE BY ANY LAW, ORDINANCE, REGULATION OR POLICY  EXCEPT  BY  LAW,  REGU-
   12  LATION  OR  POLICY THAT IS NARROWLY TAILORED TO SERVE A COMPELLING STATE
   13  INTEREST AND EXCEPT AS SET FORTH IN SUBDIVISION THREE OF THIS SECTION.
   14    2. THE STATE SHALL NOT DISCRIMINATE AGAINST THE EXERCISE OF THE RIGHTS
   15  SET FORTH IN SECTION SEVENTEEN HUNDRED OF THIS ARTICLE IN THE REGULATION
   16  OR PROVISION OF BENEFITS, FACILITIES, SERVICES OR INFORMATION.
   17    3. NOTHING IN THIS ARTICLE SHALL PROHIBIT THE ENFORCEMENT OF GENERALLY
   18  APPLICABLE STATUTES, RULES OF LAW AND REGULATIONS GOVERNING MATTERS SUCH
   19  AS PRACTITIONER LICENSING,  PHARMACEUTICALS  AND  MEDICAL  DEVICES,  AND
   20  MEDICAL PROCEDURES.
   21    4.  NOTHING  IN  THIS  ARTICLE SHALL BE CONSTRUED TO CONFLICT WITH ANY
   22  APPLICABLE STATE OR FEDERAL LAW OR REGULATION PERMITTING A  HEALTH  CARE
   23  PROVIDER TO REFRAIN FROM PROVIDING ABORTIONS DUE TO THE PROVIDER'S RELI-
   24  GIOUS OR MORAL BELIEFS.
   25    S  1703.  DEFINITIONS.  THE  FOLLOWING  DEFINITIONS  SHALL  APPLY  FOR
   26  PURPOSES OF THIS ARTICLE:
   27    1. "ABORTION" MEANS THE TERMINATION OF A PREGNANCY FOR PURPOSES  OTHER
   28  THAN  PRODUCING  A  LIVE  BIRTH,  WHICH INCLUDES BUT IS NOT LIMITED TO A
   29  TERMINATION USING PHARMACOLOGICAL AGENTS. ABORTION DOES NOT INCLUDE  THE
   30  TERMINATION OF AN ECTOPIC PREGNANCY.
   31    2.  "CONTRACEPTION"  MEANS  ANY  DRUG OR DEVICE APPROVED BY THE UNITED
   32  STATES FOOD AND DRUG ADMINISTRATION FOR THE PURPOSE OF PREVENTING  PREG-
   33  NANCY.
   34    3.  "GESTATIONAL  AGE" MEANS THE TIME THAT HAS ELAPSED SINCE THE FIRST
   35  DAY OF THE PREGNANT FEMALE'S LAST MENSTRUAL PERIOD.
   36    4. "PREGNANCY" MEANS THE HUMAN REPRODUCTIVE  PROCESS,  BEGINNING  WITH
   37  THE IMPLANTATION OF A FERTILIZED EGG.
   38    5.  "STATE"  MEANS THE STATE OF NEW YORK AND EVERY COUNTY, CITY, TOWN,
   39  MUNICIPAL CORPORATION  OR  QUASI-MUNICIPAL  CORPORATION  OF  THE  STATE,
   40  INCLUDING  GOVERNMENTAL AND POLITICAL SUBDIVISIONS, AGENCIES AND INSTRU-
   41  MENTALITIES.
   42    6. "FETAL VIABILITY" MEANS THE POINT IN PREGNANCY WHEN, AS  DETERMINED
   43  BY  A  PHYSICIAN  OR  OTHER  QUALIFIED PRACTITIONER ACTING IN GOOD FAITH
   44  WITHIN THE SCOPE OF HIS OR HER PRACTICE  IN  ACCORDANCE  WITH  GENERALLY
   45  ACCEPTED  MEDICAL  STANDARDS APPLIED TO THE PARTICULAR FACTS OF THE CASE
   46  BEFORE THAT PRACTITIONER: (A) THE GESTATIONAL AGE OF THE FETUS IS  TWEN-
   47  TY-FOUR  WEEKS  OR MORE, AND (B) THERE IS A REASONABLE LIKELIHOOD OF THE
   48  FETUS'S SUSTAINED SURVIVAL OUTSIDE THE UTERUS WITHOUT THE APPLICATION OF
   49  EXTRAORDINARY MEDICAL MEASURES.
   50    S 3. Subdivision 1 of section 4164 of the public health law, as  added
   51  by chapter 991 of the laws of 1974, is amended to read as follows:
   52    1.  [When  an  abortion  is  to be performed after the twelfth week of
   53  pregnancy it shall be performed only in a hospital and only on an in-pa-
   54  tient basis.] When an abortion is to be performed after  [the  twentieth
   55  week of pregnancy,] FETAL VIABILITY, AS THAT TERM IS DEFINED BY SUBDIVI-
   56  SION SIX OF SECTION SEVENTEEN HUNDRED THREE OF THIS CHAPTER, IT SHALL BE
       S. 438                              3

    1  PERFORMED  BY A PHYSICIAN IN A FACILITY WHICH IS LICENSED BY THE DEPART-
    2  MENT PURSUANT TO ARTICLE TWENTY-EIGHT OF THIS CHAPTER  AND  a  physician
    3  other  than the physician performing the abortion shall be in attendance
    4  to  take  control  of and to provide immediate medical care for any live
    5  birth that is the result of the abortion,  PROVIDED,  HOWEVER,  THAT  AN
    6  ABORTION  SHALL  NOT  BE DELAYED FOR THE PURPOSE OF SECURING SUCH SECOND
    7  PHYSICIAN'S ATTENDANCE IF, IN THE JUDGMENT OF THE  PHYSICIAN  PERFORMING
    8  THE  ABORTION,  SUCH  DELAY  WOULD  POSE  A RISK TO THE FEMALE'S LIFE OR
    9  HEALTH.  The commissioner [of health] is authorized to promulgate  rules
   10  and  regulations  to  insure the health and safety of the mother and the
   11  [viable child] LIVE BIRTH, in such instances.
   12    S 4. Subdivision 8 of section 6811 of the education law is REPEALED.
   13    S 5. Sections 125.40, 125.45, 125.50, 125.55 and 125.60 of  the  penal
   14  law  are  REPEALED,  and the article heading of article 125 of the penal
   15  law is amended to read as follows:
   16                   HOMICIDE[, ABORTION] AND RELATED OFFENSES
   17    S 6. Section 125.00 of the penal law is amended to read as follows:
   18  S 125.00 Homicide defined.
   19    Homicide means conduct which causes the  death  of  a  person  [or  an
   20  unborn  child  with which a female has been pregnant for more than twen-
   21  ty-four weeks] under circumstances constituting murder, manslaughter  in
   22  the  first  degree,  manslaughter  in  the  second degree, OR criminally
   23  negligent homicide[, abortion in the first degree  or  self-abortion  in
   24  the first degree].
   25    S  7.  Section  125.05  of  the penal law, subdivision 3 as amended by
   26  chapter 127 of the laws of 1970, is amended to read as follows:
   27  S 125.05 Homicide[, abortion]  and  related  offenses;  [definitions  of
   28             terms] PERSON DEFINED.
   29    [The following definitions are applicable to this article:
   30    1.  "Person,"]  FOR  THE  PURPOSES OF THIS ARTICLE, THE TERM "PERSON,"
   31  when referring to the victim of a homicide, means a human being who  has
   32  been born and is alive.
   33    [2.  "Abortional act" means an act committed upon or with respect to a
   34  female, whether by another person or by the female herself, whether  she
   35  is pregnant or not, whether directly upon her body or by the administer-
   36  ing, taking or prescription of drugs or in any other manner, with intent
   37  to cause a miscarriage of such female.
   38    3. "Justifiable abortional act." An abortional act is justifiable when
   39  committed  upon  a  female with her consent by a duly licensed physician
   40  acting (a) under a reasonable belief that such is necessary to  preserve
   41  her  life, or, (b) within twenty-four weeks from the commencement of her
   42  pregnancy. A pregnant female's commission  of  an  abortional  act  upon
   43  herself  is justifiable when she acts upon the advice of a duly licensed
   44  physician (1) that such act is necessary to preserve her life,  or,  (2)
   45  within  twenty-four  weeks  from  the commencement of her pregnancy. The
   46  submission by a female to an abortional  act  is  justifiable  when  she
   47  believes that it is being committed by a duly licensed physician, acting
   48  under  a  reasonable  belief  that such act is necessary to preserve her
   49  life, or, within twenty-four weeks from the commencement of her pregnan-
   50  cy.]
   51    S 8. Section 125.15 of the penal law is amended to read as follows:
   52  S 125.15 Manslaughter in the second degree.
   53    A person is guilty of manslaughter in the second degree when:
   54    1. He OR SHE recklessly causes the death of another person; or
       S. 438                              4

    1    2. [He commits upon a female an abortional act which causes her death,
    2  unless such abortional act is justifiable pursuant to subdivision  three
    3  of section 125.05; or
    4    3.]  He  OR  SHE intentionally causes or aids another person to commit
    5  suicide.
    6    Manslaughter in the second degree is a class C felony.
    7    S 9. Section 125.20 of the penal law, subdivision  3  as  amended  and
    8  subdivision 4 as added by chapter 477 of the laws of 1990, is amended to
    9  read as follows:
   10  S 125.20 Manslaughter in the first degree.
   11    A person is guilty of manslaughter in the first degree when:
   12    1.  With intent to cause serious physical injury to another person, he
   13  OR SHE causes the death of such person or of a third person; or
   14    2. With intent to cause the death of another person, he OR SHE  causes
   15  the  death of such person or of a third person under circumstances which
   16  do not constitute murder because he acts under the influence of  extreme
   17  emotional disturbance, as defined in paragraph (a) of subdivision one of
   18  section 125.25. The fact that homicide was committed under the influence
   19  of  extreme  emotional disturbance constitutes a mitigating circumstance
   20  reducing murder to manslaughter in the first  degree  and  need  not  be
   21  proved in any prosecution initiated under this subdivision; or
   22    3.  [He commits upon a female pregnant for more than twenty-four weeks
   23  an abortional act which causes her death, unless such abortional act  is
   24  justifiable pursuant to subdivision three of section 125.05; or
   25    4.] Being eighteen years old or more and with intent to cause physical
   26  injury to [a] ANOTHER person less than eleven years old, [the defendant]
   27  HE  OR  SHE  recklessly engages in conduct which creates a grave risk of
   28  serious physical injury to such person and thereby causes the  death  of
   29  such person.
   30    Manslaughter in the first degree is a class B felony.
   31    S 10. Paragraph (b) of subdivision 8 of section 700.05 of the criminal
   32  procedure law, as amended by chapter 405 of the laws of 2010, is amended
   33  to read as follows:
   34    (b)  Any  of  the  following felonies: assault in the second degree as
   35  defined in section 120.05 of the penal law, assault in the first  degree
   36  as  defined in section 120.10 of the penal law, reckless endangerment in
   37  the first degree as defined in section 120.25 of the penal law,  promot-
   38  ing  a  suicide  attempt  as defined in section 120.30 of the penal law,
   39  strangulation in the second degree as defined in section 121.12  of  the
   40  penal  law,  strangulation  in  the  first  degree as defined in section
   41  121.13 of the penal law, criminally negligent  homicide  as  defined  in
   42  section  125.10  of  the penal law, manslaughter in the second degree as
   43  defined in section 125.15 of the penal law, manslaughter  in  the  first
   44  degree  as  defined  in  section  125.20 of the penal law, murder in the
   45  second degree as defined in section 125.25 of the penal law,  murder  in
   46  the  first  degree  as  defined  in  section  125.27  of  the penal law,
   47  [abortion in the second degree as defined in section 125.40 of the penal
   48  law, abortion in the first degree as defined in section  125.45  of  the
   49  penal law,] rape in the third degree as defined in section 130.25 of the
   50  penal law, rape in the second degree as defined in section 130.30 of the
   51  penal  law, rape in the first degree as defined in section 130.35 of the
   52  penal law, criminal sexual act in the third degree as defined in section
   53  130.40 of the penal law, criminal sexual act in  the  second  degree  as
   54  defined  in  section 130.45 of the penal law, criminal sexual act in the
   55  first degree as defined in section 130.50 of the penal law, sexual abuse
   56  in the first degree as defined in  section  130.65  of  the  penal  law,
       S. 438                              5

    1  unlawful  imprisonment  in the first degree as defined in section 135.10
    2  of the penal law, kidnapping in the second degree as defined in  section
    3  135.20  of  the  penal law, kidnapping in the first degree as defined in
    4  section 135.25 of the penal law, labor trafficking as defined in section
    5  135.35  of  the penal law, custodial interference in the first degree as
    6  defined in section 135.50 of the penal law, coercion in the first degree
    7  as defined in section 135.65 of the penal law, criminal trespass in  the
    8  first  degree as defined in section 140.17 of the penal law, burglary in
    9  the third degree as defined in section 140.20 of the penal law, burglary
   10  in the second degree as defined in section  140.25  of  the  penal  law,
   11  burglary  in  the first degree as defined in section 140.30 of the penal
   12  law, criminal mischief in the third degree as defined in section  145.05
   13  of  the  penal law, criminal mischief in the second degree as defined in
   14  section 145.10 of the penal law, criminal mischief in the  first  degree
   15  as defined in section 145.12 of the penal law, criminal tampering in the
   16  first degree as defined in section 145.20 of the penal law, arson in the
   17  fourth  degree  as  defined in section 150.05 of the penal law, arson in
   18  the third degree as defined in section 150.10 of the penal law, arson in
   19  the second degree as defined in section 150.15 of the penal  law,  arson
   20  in the first degree as defined in section 150.20 of the penal law, grand
   21  larceny  in  the fourth degree as defined in section 155.30 of the penal
   22  law, grand larceny in the third degree as defined in section  155.35  of
   23  the  penal law, grand larceny in the second degree as defined in section
   24  155.40 of the penal law, grand larceny in the first degree as defined in
   25  section 155.42 of the penal law, health care fraud in the fourth  degree
   26  as  defined in section 177.10 of the penal law, health care fraud in the
   27  third degree as defined in section 177.15 of the penal law, health  care
   28  fraud  in  the  second  degree as defined in section 177.20 of the penal
   29  law, health care fraud in the first degree as defined in section  177.25
   30  of  the  penal  law,  robbery  in the third degree as defined in section
   31  160.05 of the penal law, robbery in the  second  degree  as  defined  in
   32  section  160.10 of the penal law, robbery in the first degree as defined
   33  in section 160.15 of the penal law, unlawful use  of  secret  scientific
   34  material  as  defined  in  section  165.07  of  the  penal law, criminal
   35  possession of stolen property in the fourth degree as defined in section
   36  165.45 of the penal law, criminal possession of stolen property  in  the
   37  third  degree  as  defined  in section 165.50 of the penal law, criminal
   38  possession of stolen property in the second degree as defined by section
   39  165.52 of the penal law, criminal possession of stolen property  in  the
   40  first  degree  as  defined by section 165.54 of the penal law, trademark
   41  counterfeiting in the second degree as defined in section 165.72 of  the
   42  penal  law,  trademark  counterfeiting in the first degree as defined in
   43  section 165.73 of the penal law, forgery in the second degree as defined
   44  in section 170.10 of the penal law,  forgery  in  the  first  degree  as
   45  defined  in  section  170.15  of the penal law, criminal possession of a
   46  forged instrument in the second degree as defined in section  170.25  of
   47  the  penal  law, criminal possession of a forged instrument in the first
   48  degree  as  defined  in  section  170.30  of  the  penal  law,  criminal
   49  possession  of forgery devices as defined in section 170.40 of the penal
   50  law, falsifying business records in  the  first  degree  as  defined  in
   51  section  175.10  of  the penal law, tampering with public records in the
   52  first degree as defined in section 175.25 of the penal law,  offering  a
   53  false  instrument  for  filing in the first degree as defined in section
   54  175.35 of the penal law, issuing  a  false  certificate  as  defined  in
   55  section  175.40  of  the  penal  law, criminal diversion of prescription
   56  medications and prescriptions in the second degree as defined in section
       S. 438                              6

    1  178.20 of the penal law, criminal diversion of prescription  medications
    2  and  prescriptions  in  the first degree as defined in section 178.25 of
    3  the penal law, residential  mortgage  fraud  in  the  fourth  degree  as
    4  defined  in  section 187.10 of the penal law, residential mortgage fraud
    5  in the third degree as defined in section 187.15 of the penal law, resi-
    6  dential mortgage fraud in the second degree as defined in section 187.20
    7  of the penal law, residential mortgage fraud  in  the  first  degree  as
    8  defined  in section 187.25 of the penal law, escape in the second degree
    9  as defined in section 205.10 of the  penal  law,  escape  in  the  first
   10  degree  as  defined  in section 205.15 of the penal law, absconding from
   11  temporary release in the first degree as defined in  section  205.17  of
   12  the  penal  law,  promoting  prison  contraband  in  the first degree as
   13  defined in section 205.25 of the penal law, hindering prosecution in the
   14  second degree as defined in section 205.60 of the penal  law,  hindering
   15  prosecution  in  the  first  degree  as defined in section 205.65 of the
   16  penal law, sex trafficking as defined in section  230.34  of  the  penal
   17  law,  criminal  possession of a weapon in the third degree as defined in
   18  subdivisions two, three and five of section 265.02  of  the  penal  law,
   19  criminal  possession  of  a  weapon  in  the second degree as defined in
   20  section 265.03 of the penal law, criminal possession of a weapon in  the
   21  first degree as defined in section 265.04 of the penal law, manufacture,
   22  transport,  disposition  and defacement of weapons and dangerous instru-
   23  ments and appliances defined as felonies in subdivisions one,  two,  and
   24  three  of  section  265.10 of the penal law, sections 265.11, 265.12 and
   25  265.13 of the penal law, or prohibited use  of  weapons  as  defined  in
   26  subdivision two of section 265.35 of the penal law, relating to firearms
   27  and  other  dangerous  weapons,  or  failure to disclose the origin of a
   28  recording in the first degree as defined in section 275.40 of the  penal
   29  law;
   30    S  11.  Subdivision  1  of  section 673 of the county law, as added by
   31  chapter 545 of the laws of 1965, is amended to read as follows:
   32    1. A coroner or medical examiner has  jurisdiction  and  authority  to
   33  investigate  the death of every person dying within his county, or whose
   34  body is found within the county, which is or appears to be:
   35    (a) A violent death, whether by criminal violence, suicide or  casual-
   36  ty;
   37    (b) A death caused by unlawful act or criminal neglect;
   38    (c) A death occurring in a suspicious, unusual or unexplained manner;
   39    (d) [A death caused by suspected criminal abortion;
   40    (e)] A death while unattended by a physician, so far as can be discov-
   41  ered,  or  where  no  physician  able  to  certify the cause of death as
   42  provided in the public health law and  in  form  as  prescribed  by  the
   43  commissioner of health can be found;
   44    [(f)]  (E)  A death of a person confined in a public institution other
   45  than a hospital, infirmary or nursing home.
   46    S 12. Section 4 of the judiciary law, as amended by chapter 264 of the
   47  laws of 2003, is amended to read as follows:
   48    S 4. Sittings of courts to be public.  The  sittings  of  every  court
   49  within  this  state shall be public, and every citizen may freely attend
   50  the same, except that  in  all  proceedings  and  trials  in  cases  for
   51  divorce,  seduction,  [abortion,]  rape,  assault  with intent to commit
   52  rape, criminal sexual act, bastardy or filiation, the court may, in  its
   53  discretion,  exclude  therefrom  all persons who are not directly inter-
   54  ested therein, excepting jurors, witnesses, and officers of the court.
   55    S 13. This act shall take effect on the thirtieth day after  it  shall
   56  have become a law.
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