S02286 Summary:

Add S230-e, Pub Health L
Establishes a cause of action for damages against a person who attempts or performs a sex selective abortion.
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S02286 Actions:

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S02286 Text:

                STATE OF NEW YORK
                               2013-2014 Regular Sessions
                    IN SENATE
                                    January 15, 2013
        Introduced  by  Sen.  BALL  --  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  establishing  a
          cause  of action for damages against a person who attempts or performs
          a sex selective abortion

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1.  The  public health law is amended by adding a new section
     2  230-e to read as follows:
     3    § 230-e. Prohibition of sex selective  abortion.    1.  The  following
     4  words or phrases, as used in this section shall have the following mean-
     5  ings:
     6    (a)  "Abortion"  means  the  intentional  use  or  prescription of any
     7  instrument, medicine, drug or any other substance or device or method to
     8  terminate the life of an unborn child, or to terminate the pregnancy  of
     9  a  woman  known to be pregnant with an intention other than to produce a
    10  live birth and preserve the life and health  of  the  child  after  live

    11  birth,  or  to  remove  an ectopic pregnancy, or to remove a dead unborn
    12  child who died as the result of natural causes, accidental trauma, or  a
    13  criminal assault on the pregnant woman.
    14    (b)  "Attempt  to  perform  an  abortion"  means  to  do or omit to do
    15  anything that, under the circumstances as the actor believes them to be,
    16  is an act or omission constituting a substantial step  in  a  course  of
    17  conduct  planned  to  culminate  in  an abortion. Such substantial steps
    18  include, but are not limited to: (i)  agreeing  with  an  individual  to
    19  perform  an abortion on that individual or on some other person, whether
    20  or not the term "abortion" is used in the agreement, and whether or  not

    21  the agreement is contingent on another factor such as receipt of payment
    22  or  a determination of pregnancy; and (ii) scheduling or planning a time
    23  to perform an abortion  on  an  individual,  whether  or  not  the  term
    24  "abortion"  is used, and whether or not the performance is contingent on
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 2286                             2
     1  another factor such as receipt of payment or a determination of pregnan-
     2  cy. This definition shall not be construed to require that  an  abortion
     3  procedure actually be initiated for an attempt to occur.

     4    (c)  "Physician"  means  a  doctor  of  medicine or osteopathy legally
     5  authorized to practice medicine in the state.
     6    2. No person shall knowingly  or  recklessly  perform  or  attempt  to
     7  perform  an  abortion with knowledge that the pregnant female is seeking
     8  the abortion solely on account of the sex of the unborn  child.  Nothing
     9  in  this  section  shall be construed to proscribe the performance of an
    10  abortion because the unborn child has a genetic disorder  that  is  sex-
    11  linked.
    12    3.  Any  person upon whom an abortion was performed or attempted to be
    13  performed in violation of subdivision two of this section, the father of
    14  the unborn child, or the grandparent of the unborn child may maintain an

    15  action against the person who performed  or  attempted  to  perform  the
    16  abortion.  The person who performed or attempted to perform the abortion
    17  may be liable in such an action for punitive damages not to  exceed  ten
    18  thousand  dollars  and  for damages the plaintiff actually sustained. No
    19  plaintiff shall be estopped from recovery  in  such  an  action  on  the
    20  ground  that  either  the plaintiff or the person upon whom the abortion
    21  was performed gave consent to the abortion.
    22    4. An abortion provider  who  knowingly  or  recklessly  performed  or
    23  attempted  to  perform an abortion in violation of this section shall be
    24  considered to have engaged  in  unprofessional  conduct  for  which  the

    25  certificate  or  license of the provider to provide health care services
    26  in this state shall be suspended or  revoked  by  the  state  board  for
    27  professional medical conduct pursuant to section two hundred thirty-a of
    28  this title.
    29    5.  In  every  proceeding or action instituted under this section, the
    30  anonymity of any female upon whom an abortion is performed or  attempted
    31  shall  be preserved unless she gives her consent to such disclosure. The
    32  court, upon motion or sua sponte, shall issue  orders  to  the  parties,
    33  witnesses  and  counsel,  and shall direct the sealing of the record and
    34  exclusion of individuals from courtrooms or hearing rooms to the  extent
    35  necessary  to safeguard the female's identity from public disclosure. In

    36  the absence of written consent of the female upon whom an  abortion  has
    37  been  performed  or  attempted,  any  plaintiff who institutes an action
    38  under subdivision three of this section shall do so under a pseudonym.
    39    § 2. If any provision, word, phrase or  clause  of  this  act  or  the
    40  application  thereof to any person or circumstance is held invalid, such
    41  invalidity shall not affect the provisions, words,  phrases,  clause  or
    42  applications  of  this act which can be given effect without the invalid
    43  provision, word, phrase, clause or application, and  to  this  end,  the
    44  provisions,  words,  phrases, and clauses of this act are declared to be
    45  severable. If the application of this act to  the  period  of  pregnancy
    46  prior  to  viability  is  held  invalid,  then such invalidity shall not

    47  affect its application to the period of pregnancy subsequent to  viabil-
    48  ity.
    49    § 3. This act shall take effect immediately.
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