Add §2508, Pub Health L; amd §213, add Art 10-D §§1097 - 1097-c, Fam Ct Act
Requires parental notice prior to the performance of an abortion upon an unemancipated minor; defines unemancipated minor as person less than eighteen years of age; allows for waiver of such notice in limited instances; establishes circumstances and procedures for proceedings to obtain an order waiving such parental notification.
STATE OF NEW YORK
________________________________________________________________________
3620
2017-2018 Regular Sessions
IN ASSEMBLY
January 30, 2017
___________
Introduced by M. of A. MURRAY, HAWLEY, CURRAN, BRABENEC, DiPIETRO, RAIA,
CASTORINA -- Multi-Sponsored by -- M. of A. CRESPO, FRIEND, LAWRENCE,
McDONOUGH -- read once and referred to the Committee on Health
AN ACT to amend the public health law and the family court act, in
relation to notice of abortions performed on unemancipated minors
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative purpose and findings. It is the intent of this
2 legislature in enacting this parental notice provision to further the
3 important and compelling state interests of protecting minors against
4 their own immaturity, fostering the family structure and preserving it
5 as a viable social unit, protecting the rights of parents to rear chil-
6 dren who are members of their household, and protecting the health of
7 minor children.
8 The legislature finds that immature minors often lack the ability to
9 make fully-informed choices that take account of both immediate and
10 long-range consequences and that the medical, emotional and psycholog-
11 ical consequences of abortion are serious and can be lasting, partic-
12 ularly when the patient is immature. The legislature further finds that
13 the capacity to become pregnant and the capacity for mature judgment
14 concerning the wisdom of an abortion are not necessarily related. The
15 legislature finds that parents ordinarily possess information essential
16 to a physician's exercise of his best medical judgment concerning the
17 child and, further, that parents who are aware that their minor daughter
18 has had an abortion may better ensure that she receives adequate medical
19 attention after her abortion. The legislature concludes then, that
20 parental consultation is usually desirable and in the best interest of
21 the minor.
22 § 2. The public health law is amended by adding a new section 2508 to
23 read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05296-02-7
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1 § 2508. Notification of abortions on unemancipated minors. 1. Defi-
2 nitions. For the purposes of this section, the following definitions
3 will apply:
4 (a) "unemancipated minor" means a person who has not attained the age
5 of eighteen years and is not an emancipated minor as defined in para-
6 graph (b) of this subdivision.
7 (b) "emancipated minor" means a minor who is or has been lawfully
8 married or has by court order or otherwise been freed from the care,
9 custody and control of her parents.
10 (c) "abortion" means the use of any instrument, medicine, drug or any
11 other substance or device with intent to terminate the pregnancy of a
12 woman known to be pregnant with intent other than to increase the proba-
13 bility of a live birth, to preserve the life or health of the child
14 after live birth, or to remove a dead fetus.
15 (d) "medical emergency" means that condition which, on the basis of
16 the physician's good faith clinical judgment, so complicates the medical
17 condition of the pregnant minor as to necessitate the immediate abortion
18 of her pregnancy to avert her death or for which delay will create seri-
19 ous risk of substantial and irreversible impairment of a major bodily
20 function.
21 2. Notification concerning abortion. No person shall perform an
22 abortion upon an unemancipated minor unless he or she or his or her
23 agent has given at least forty-eight hours written notice to a custodial
24 parent with whom the minor resides or to the legal guardian of the preg-
25 nant minor of his or her intention to perform the abortion or unless he
26 or she or his or her agent has received a written statement or oral
27 communication, by another physician, hereinafter called the "referring
28 physician", certifying that the referring physician has effectuated such
29 notice. If the minor's parents are divorced or legally separated, and a
30 custodial parent with whom the minor resides is not available to the
31 person performing the abortion or the referring physician in a reason-
32 able time or manner, then the notice to a non-custodial parent or to the
33 parent who is available shall be sufficient.
34 (a) The written notice shall be addressed to the parent or guardian at
35 the usual place of abode of the parent or guardian and delivered
36 personally to the parent or guardian by the physician or an agent.
37 (b) In lieu of the delivery required by paragraph (a) of this subdivi-
38 sion, notice shall be made by certified mail addressed to the parent or
39 guardian at the usual place of abode of the parent or guardian with
40 return receipt requested with restricted delivery to the addressee. Time
41 of delivery shall be deemed to occur at 12:00 o'clock noon on the third
42 day after mailing.
43 3. Waiver of notice. No notice shall be required under this section
44 if:
45 (a) the attending physician certifies in the pregnant minor's medical
46 record that a medical emergency exists; or
47 (b) the person or persons who are entitled to notice certify in writ-
48 ing that they have been notified; or
49 (c) the minor objects to notice being given her custodial parent with
50 whom the minor resides or legal guardian and obtains an order issued by
51 a judge of the family court as provided in article ten-A of the family
52 court act, or by any other judge or justice of this state having juris-
53 diction, dispensing with such notice.
54 4. Coercion prohibited. No parent, guardian or other person shall
55 coerce a minor to undergo an abortion. Any minor who is threatened with
56 such coercion may apply to a court of competent jurisdiction for relief.
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1 The court shall provide the minor with counsel, give the matter expe-
2 dited consideration and grant such relief as may be necessary to prevent
3 such coercion. Should a minor be denied financial support of her parents
4 by reason of her refusal to undergo an abortion, she shall be considered
5 emancipated for purposes of eligibility for assistance benefits.
6 5. Penalties. Any person who intentionally performs an abortion with
7 knowledge that, or with reckless disregard as to whether, the person
8 upon whom the abortion is to be performed is an unemancipated minor, and
9 who intentionally or knowingly violates the requirements of this section
10 shall be guilty of a misdemeanor. In addition, any person who performs
11 an abortion upon another in violation of this section shall be subject
12 to civil liability. However, a person shall not be held liable under
13 this section if the person establishes by written evidence that the
14 person relied upon evidence sufficient to convince a reasonable person
15 that the representations of the pregnant minor regarding information
16 necessary to comply with this section are bona fide and true, or if the
17 person has attempted with reasonable diligence to deliver notice, but
18 has been unable to do so.
19 § 3. Paragraph (viii) of subdivision (a) of section 213 of the family
20 court act, as amended by chapter 920 of the laws of 1982, is amended and
21 a new paragraph (ix) is added to read as follows:
22 (viii) the number, nature and disposition of cases involving child
23 abuse under article ten of this act, including total number of new
24 cases, their nature, whether heard by the child abuse part, the age and
25 sex of the children involved, the type of petitioner, the number of
26 children temporarily removed both before and after the filing of a peti-
27 tion, the length of time and number of adjournments between the filing
28 of a petition and the fact-finding hearing, the number of cases that are
29 dismissed, withdrawn, sustained and admitted to, the length of time and
30 number of adjournments between the fact-finding hearing and the disposi-
31 tional hearing, and the final disposition of such cases[.];
32 (ix) the number and disposition of cases under article ten-D of this
33 act, including the total number of new cases, the age of the minor
34 involved, whether the orders regarding notification were based upon
35 findings either that the minors were mature minors, as defined in
36 section one thousand ninety-seven-b of this act or that the abortions,
37 as defined in section twenty-five hundred eight of the public health
38 law, were in the best interests of the minors.
39 § 4. The family court act is amended by adding a new article 10-D to
40 read as follows:
41 ARTICLE 10-D
42 PROCEEDING TO OBTAIN AN ORDER WAIVING PARENTAL
43 NOTIFICATION OF AN ABORTION
44 Section 1097. Purposes.
45 1097-a. Definitions.
46 1097-b. Jurisdiction.
47 1097-c. Procedure.
48 § 1097. Purposes. This article is intended to establish procedures to
49 implement the provisions contained in section twenty-five hundred eight
50 of the public health law.
51 § 1097-a. Definitions. When used in this article, the term "abortion"
52 shall have the same meaning as is ascribed to it in paragraph (c) of
53 subdivision one of section twenty-five hundred eight of the public
54 health law and the term "mature minor" shall mean a person under the age
55 of eighteen who has not been emancipated as defined in paragraph (b) of
56 subdivision one of section twenty-five hundred eight of the public
A. 3620 4
1 health law and who is able to make an informed, reasoned and considered
2 judgment in connection with a decision whether or not to proceed with
3 the abortion.
4 § 1097-b. Jurisdiction. The family court has exclusive original juris-
5 diction over proceedings under this article to obtain an order waiving
6 parental notification of an abortion.
7 § 1097-c. Procedure. Notwithstanding any other provision of law:
8 1. The waiver of parental notification to an abortion upon or with the
9 respect to an unemancipated minor may be obtained by order of a judge of
10 the family court in the county where such person resides or if she is
11 not a resident of this state, in the county where the abortion is to be
12 performed, on application by such person or by a relative of such person
13 or other interested party.
14 2. Such court proceedings shall be commenced ex parte and may be
15 commenced and continued without the payment of any fees. The court shall
16 advise the minor that she has a right to court-appointed counsel and
17 shall provide her with such counsel upon her request.
18 3. Such application shall be given immediate consideration and a hear-
19 ing shall be held immediately at which the person upon or with respect
20 to whom the abortion is to be performed shall be present. The court
21 shall issue written and specific factual findings and legal conclusions
22 supporting its decision and shall order that a confidential record of
23 the evidence be maintained. All proceedings with respect to such appli-
24 cation, including an appeal therefrom, shall protect the anonymity of
25 the minor. Said proceedings shall be sealed, and no person shall be
26 allowed access to such sealed records except upon an order of a judge of
27 the court in which the application was processed or of a justice of the
28 supreme court of the judicial district, and no such order shall be
29 granted except on good cause shown.
30 4. An order shall issue only upon finding by the court (a) that such
31 person presently desires to submit to such abortion; (b) that such
32 person is either a mature minor or that such abortion is in the best
33 interest of such person; and (c) that a previous application for such
34 order has not been made and denied upon the same grounds. If the court
35 so finds, the order must issue.
36 5. In the event that the court shall deny the application for the
37 order, an expedited anonymous appeal shall be available to such appli-
38 cant to the appellate division of the supreme court of the judicial
39 department in which the court which rendered the decision is located.
40 The notice of intent to appeal shall be filed within twenty-four hours
41 from the date of issuance of the order. The record on appeal shall be
42 completed and the appeal shall be perfected within five days from the
43 filing of the notice to appeal. Because time may be of the essence
44 regarding the performance of the abortion, the supreme court shall, by
45 court rule, provide for expedited appellate review of cases appealed
46 under this section.
47 6. The supreme court shall promulgate any rules and regulations neces-
48 sary to ensure that proceedings under this section are handled in an
49 expeditious and anonymous manner.
50 7. The supreme court, in its discretion, may issue such other and
51 further lawful orders as it deems necessary to protect such person.
52 § 5. Separability. If any clause, sentence, section or part of this
53 act shall be adjudged by any court of competent jurisdiction to be
54 invalid, such judgment shall not affect, impair or invalidate the
55 remainder thereof, but shall be confined in its operation to the clause,
A. 3620 5
1 sentence, paragraph, section or part thereof directly involved in the
2 controversy in which such judgment shall have been rendered.
3 § 6. This act shall take effect on the ninetieth day after it shall
4 have become a law.
