STATE OF NEW YORK
________________________________________________________________________
7437
2021-2022 Regular Sessions
IN ASSEMBLY
May 10, 2021
___________
Introduced by M. of A. SALKA -- read once and referred to the Committee
on Health
AN ACT to amend the public health law, in relation to enacting the
"preservation of new life act" and revising existing provisions of law
regarding abortion; to amend the education law, the penal law, the
criminal procedure law, the county law and the judiciary law, in
relation to abortion; and to repeal article 25-A of the public health
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 cited as the
2 "preservation of new life act".
3 § 2. Article 25-A of the public health law is REPEALED.
4 § 3. The public health law is amended by adding a new section 4164 to
5 read as follows:
6 § 4164. Induce viable births. 1. When an abortion is to be performed
7 after the twelfth week of pregnancy it shall be performed only in a
8 hospital and only on an in-patient basis. When an abortion is to be
9 performed after the twentieth week of pregnancy, a physician other than
10 the physician performing the abortion shall be in attendance to take
11 control of and to provide immediate medical care for any live birth that
12 is the result of the abortion. The commissioner of health is authorized
13 to promulgate rules and regulations to insure the health and safety of
14 the mother and the viable child, in such instances.
15 2. Such child shall be accorded immediate legal protection under the
16 laws of the state of New York, including but not limited to applicable
17 provisions of the social services law, article five of the civil rights
18 law and the penal law.
19 3. The medical records of all life-sustaining efforts put forth for
20 such a live aborted birth, their failure or success, shall be kept by
21 attending physician. All other vital statistics requirements in the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09010-01-1
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1 public health law shall be complied with in regard to such aborted
2 child.
3 4. In the event of the subsequent death of the aborted child, the
4 disposal of the dead body shall be in accordance with the requirements
5 of this chapter.
6 § 4. Section 6811 of the education law is amended by adding a new
7 subdivision 8 to read as follows:
8 8. Any person to sell or distribute any instrument or article, or any
9 recipe, drug or medicine for the prevention of conception to a minor
10 under the age of sixteen years; the sale or distribution of such to a
11 person other than a minor under the age of sixteen years is authorized
12 only by a licensed pharmacist but the advertisement or display of said
13 articles, within or without the premises of such pharmacy is hereby
14 prohibited;
15 § 5. Section 125.05 of the penal law, the section heading, opening
16 paragraph and closing paragraph as amended by chapter 1 of the laws of
17 2019, is amended to read as follows:
18 § 125.05 Homicide, abortion and related offenses; [definition] defi-
19 nitions of terms.
20 The following [definition is] definitions are applicable to this arti-
21 cle:
22 1. "Person," when referring to the victim of a homicide, means a human
23 being who has been born and is alive.
24 2. "Abortional act" means an act committed upon or with respect to a
25 female, whether by another person or by the female herself, whether she
26 is pregnant or not, whether directly upon her body or by the administer-
27 ing, taking or prescribing of drugs or in any other manner, with intent
28 to cause a miscarriage of such female.
29 3. "Justifiable abortional act." An abortional act is justifiable when
30 committed upon a female with her consent by a duly licensed physician
31 acting (a) under a reasonable belief that such is necessary to preserve
32 her life, or, (b) within twenty-four weeks from the commencement of her
33 pregnancy. A pregnant female`s commission of an abortional act upon
34 herself is justifiable when she acts upon the advice of a duly licensed
35 physician (1) that such act is necessary to preserve her life, or, (2)
36 within twenty-four weeks from the commencement of her pregnancy. The
37 submission by a female to an abortional act is justifiable when she
38 believes that it is being committed by a duly licensed physician, acting
39 under a reasonable belief that such act is necessary to preserve her
40 life, or, within twenty-four weeks from the commencement of her pregnan-
41 cy.
42 § 6. The penal law is amended by adding five new sections 125.40,
43 125.45, 125.50, 125.55 and 125.60 to read as follows:
44 § 125.40 Abortion in the second degree.
45 A person is guilty of abortion in the second degree when he or she
46 commits upon a female pregnant for more than twenty-four weeks an abor-
47 tional act which causes the miscarriage of such female, unless such
48 abortional act is justifiable pursuant to subdivision three of section
49 125.05 of this article.
50 Abortion in the second degree is a class E felony.
51 § 125.45 Abortion in the first degree.
52 A person is guilty of abortion in the first degree when he or she
53 commits upon a female pregnant for more than twenty-four weeks an abor-
54 tional act which causes the miscarriage of such female, unless such
55 abortional act is justifiable pursuant to subdivision three of section
56 125.05 of this article.
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1 Abortion in the first degree is a class D felony.
2 § 125.50 Self-abortion in the second degree.
3 A female is guilty of self-abortion in the second degree when, being
4 pregnant, she commits or submits to an abortional act upon herself,
5 unless such abortional act is justifiable pursuant to subdivision three
6 of section 125.05 of this article.
7 Self-abortion in the second degree is a class B misdemeanor.
8 § 125.55 Self-abortion in the first degree.
9 A female is guilty of self-abortion in the first degree when, being
10 pregnant for more than twenty-four weeks, she commits or submits to an
11 abortional act upon herself which causes her miscarriage, unless such
12 abortional act is justifiable pursuant to subdivision three of section
13 125.05 of this article.
14 Self-abortion in the first degree is a class A misdemeanor.
15 § 125.60 Issuing abortional articles.
16 A person is guilty of issuing abortional articles when he or she manu-
17 factures, sells or delivers any instrument, article, medicine, drug or
18 substance with intent that the same be used in unlawfully procuring the
19 miscarriage of a female.
20 Issuing abortional articles is a class B misdemeanor.
21 § 7. Section 125.00 of the penal law, as amended by chapter 1 of the
22 laws of 2019, is amended to read as follows:
23 § 125.00 Homicide defined.
24 Homicide means conduct which causes the death of a person or an unborn
25 child with which a female has been pregnant for more than twenty-four
26 weeks under circumstances constituting murder, manslaughter in the first
27 degree, manslaughter in the second degree, [or] criminally negligent
28 homicide, abortion in the first degree or self-abortion in the first
29 degree.
30 § 8. Section 125.15 of the penal law is amended by adding a new subdi-
31 vision 2 to read as follows:
32 2. He commits upon a female an abortional act which causes her death,
33 unless such abortional act is justifiable pursuant to subdivision three
34 of section 125.05 of this article; or
35 § 9. Section 125.20 of the penal law is amended by adding a new subdi-
36 vision 3 to read as follows:
37 3. He commits upon a female pregnant for more than twenty-four weeks
38 an abortional act which causes her death, unless such abortional act is
39 justifiable pursuant to subdivision three of section 125.05; or
40 § 10. Paragraph (b) of subdivision 8 of section 700.05 of the criminal
41 procedure law, as amended by chapter 134 of the laws of 2019, is amended
42 to read as follows:
43 (b) Any of the following felonies: assault in the second degree as
44 defined in section 120.05 of the penal law, assault in the first degree
45 as defined in section 120.10 of the penal law, reckless endangerment in
46 the first degree as defined in section 120.25 of the penal law, promot-
47 ing a suicide attempt as defined in section 120.30 of the penal law,
48 strangulation in the second degree as defined in section 121.12 of the
49 penal law, strangulation in the first degree as defined in section
50 121.13 of the penal law, criminally negligent homicide as defined in
51 section 125.10 of the penal law, manslaughter in the second degree as
52 defined in section 125.15 of the penal law, manslaughter in the first
53 degree as defined in section 125.20 of the penal law, murder in the
54 second degree as defined in section 125.25 of the penal law, murder in
55 the first degree as defined in section 125.27 of the penal law, abortion
56 in the second degree as defined in section 125.40 of the penal law,
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1 abortion in the first degree as defined in section 125.45 of the penal
2 law, rape in the third degree as defined in section 130.25 of the penal
3 law, rape in the second degree as defined in section 130.30 of the penal
4 law, rape in the first degree as defined in section 130.35 of the penal
5 law, criminal sexual act in the third degree as defined in section
6 130.40 of the penal law, criminal sexual act in the second degree as
7 defined in section 130.45 of the penal law, criminal sexual act in the
8 first degree as defined in section 130.50 of the penal law, sexual abuse
9 in the first degree as defined in section 130.65 of the penal law,
10 unlawful imprisonment in the first degree as defined in section 135.10
11 of the penal law, kidnapping in the second degree as defined in section
12 135.20 of the penal law, kidnapping in the first degree as defined in
13 section 135.25 of the penal law, labor trafficking as defined in section
14 135.35 of the penal law, aggravated labor trafficking as defined in
15 section 135.37 of the penal law, custodial interference in the first
16 degree as defined in section 135.50 of the penal law, coercion in the
17 first degree as defined in section 135.65 of the penal law, criminal
18 trespass in the first degree as defined in section 140.17 of the penal
19 law, burglary in the third degree as defined in section 140.20 of the
20 penal law, burglary in the second degree as defined in section 140.25 of
21 the penal law, burglary in the first degree as defined in section 140.30
22 of the penal law, criminal mischief in the third degree as defined in
23 section 145.05 of the penal law, criminal mischief in the second degree
24 as defined in section 145.10 of the penal law, criminal mischief in the
25 first degree as defined in section 145.12 of the penal law, criminal
26 tampering in the first degree as defined in section 145.20 of the penal
27 law, arson in the fourth degree as defined in section 150.05 of the
28 penal law, arson in the third degree as defined in section 150.10 of the
29 penal law, arson in the second degree as defined in section 150.15 of
30 the penal law, arson in the first degree as defined in section 150.20 of
31 the penal law, grand larceny in the fourth degree as defined in section
32 155.30 of the penal law, grand larceny in the third degree as defined in
33 section 155.35 of the penal law, grand larceny in the second degree as
34 defined in section 155.40 of the penal law, grand larceny in the first
35 degree as defined in section 155.42 of the penal law, health care fraud
36 in the fourth degree as defined in section 177.10 of the penal law,
37 health care fraud in the third degree as defined in section 177.15 of
38 the penal law, health care fraud in the second degree as defined in
39 section 177.20 of the penal law, health care fraud in the first degree
40 as defined in section 177.25 of the penal law, robbery in the third
41 degree as defined in section 160.05 of the penal law, robbery in the
42 second degree as defined in section 160.10 of the penal law, robbery in
43 the first degree as defined in section 160.15 of the penal law, unlawful
44 use of secret scientific material as defined in section 165.07 of the
45 penal law, criminal possession of stolen property in the fourth degree
46 as defined in section 165.45 of the penal law, criminal possession of
47 stolen property in the third degree as defined in section 165.50 of the
48 penal law, criminal possession of stolen property in the second degree
49 as defined by section 165.52 of the penal law, criminal possession of
50 stolen property in the first degree as defined by section 165.54 of the
51 penal law, trademark counterfeiting in the second degree as defined in
52 section 165.72 of the penal law, trademark counterfeiting in the first
53 degree as defined in section 165.73 of the penal law, forgery in the
54 second degree as defined in section 170.10 of the penal law, forgery in
55 the first degree as defined in section 170.15 of the penal law, criminal
56 possession of a forged instrument in the second degree as defined in
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1 section 170.25 of the penal law, criminal possession of a forged instru-
2 ment in the first degree as defined in section 170.30 of the penal law,
3 criminal possession of forgery devices as defined in section 170.40 of
4 the penal law, falsifying business records in the first degree as
5 defined in section 175.10 of the penal law, tampering with public
6 records in the first degree as defined in section 175.25 of the penal
7 law, offering a false instrument for filing in the first degree as
8 defined in section 175.35 of the penal law, issuing a false certificate
9 as defined in section 175.40 of the penal law, criminal diversion of
10 prescription medications and prescriptions in the second degree as
11 defined in section 178.20 of the penal law, criminal diversion of
12 prescription medications and prescriptions in the first degree as
13 defined in section 178.25 of the penal law, residential mortgage fraud
14 in the fourth degree as defined in section 187.10 of the penal law,
15 residential mortgage fraud in the third degree as defined in section
16 187.15 of the penal law, residential mortgage fraud in the second degree
17 as defined in section 187.20 of the penal law, residential mortgage
18 fraud in the first degree as defined in section 187.25 of the penal law,
19 escape in the second degree as defined in section 205.10 of the penal
20 law, escape in the first degree as defined in section 205.15 of the
21 penal law, absconding from temporary release in the first degree as
22 defined in section 205.17 of the penal law, promoting prison contraband
23 in the first degree as defined in section 205.25 of the penal law,
24 hindering prosecution in the second degree as defined in section 205.60
25 of the penal law, hindering prosecution in the first degree as defined
26 in section 205.65 of the penal law, sex trafficking as defined in
27 section 230.34 of the penal law, sex trafficking of a child as defined
28 in section 230.34-a of the penal law, criminal possession of a weapon in
29 the third degree as defined in subdivisions two, three and five of
30 section 265.02 of the penal law, criminal possession of a weapon in the
31 second degree as defined in section 265.03 of the penal law, criminal
32 possession of a weapon in the first degree as defined in section 265.04
33 of the penal law, manufacture, transport, disposition and defacement of
34 weapons and dangerous instruments and appliances defined as felonies in
35 subdivisions one, two, and three of section 265.10 of the penal law,
36 sections 265.11, 265.12 and 265.13 of the penal law, or prohibited use
37 of weapons as defined in subdivision two of section 265.35 of the penal
38 law, relating to firearms and other dangerous weapons, criminal manufac-
39 ture, sale or transport of an undetectable firearm, rifle or shotgun as
40 defined in section 265.50 of the penal law, or failure to disclose the
41 origin of a recording in the first degree as defined in section 275.40
42 of the penal law;
43 § 11. Subdivision 1 of section 673 of the county law, as amended by
44 chapter 1 of the laws of 2019, is amended to read as follows:
45 1. A coroner or medical examiner has jurisdiction and authority to
46 investigate the death of every person dying within his county, or whose
47 body is found within the county, which is or appears to be:
48 (a) A violent death, whether by criminal violence, suicide or casual-
49 ty;
50 (b) A death caused by unlawful act or criminal neglect;
51 (c) A death occurring in a suspicious, unusual or unexplained manner;
52 (d) A death caused by suspected criminal abortion;
53 (e) A death while unattended by a physician, so far as can be discov-
54 ered, or where no physician able to certify the cause of death as
55 provided in the public health law and in form as prescribed by the
56 commissioner of health can be found;
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1 [(e)] (f) A death of a person confined in a public institution other
2 than a hospital, infirmary or nursing home.
3 § 12. Section 4 of the judiciary law, as amended by chapter 1 of the
4 laws of 2019, is amended to read as follows:
5 § 4. Sittings of courts to be public. The sittings of every court
6 within this state shall be public, and every citizen may freely attend
7 the same, except that in all proceedings and trials in cases for
8 divorce, seduction, abortion, rape, assault with intent to commit rape,
9 criminal sexual act, bastardy or filiation, the court may, in its
10 discretion, exclude therefrom all persons who are not directly inter-
11 ested therein, excepting jurors, witnesses, and officers of the court.
12 § 13. Severability. If any provision of this act, or any application
13 of any provision of this act, is held to be invalid, that shall not
14 affect the validity or effectiveness of any other provision of this act,
15 or of any other application of any provision of this act, which can be
16 given effect without that provision or application; and to that end, the
17 provisions and applications of this act are severable.
18 § 14. This act shall take effect immediately.
