|SAME AS||No Same As|
|COSPNSR||Friend, Hawley, Salka, Lawrence, DeStefano|
|Add Art 41 Title V-B §§4164-a - 4164-l, Pub Health L; amd §6530, Ed L; add §125.41, 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 authorizes 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 in 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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STATE OF NEW YORK ________________________________________________________________________ 5389 2019-2020 Regular Sessions IN ASSEMBLY February 11, 2019 ___________ Introduced by M. of A. DiPIETRO, FRIEND, HAWLEY -- read once and referred to the Committee 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. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07652-01-9A. 5389 2 1 6. Cardiac activity begins at a biologically identifiable moment in 2 time, normally when the fetal heart is formed in the gestational sac. 3 7. The state of New York has legitimate interests from the outset of 4 the pregnancy in protecting the health of the woman and the life of an 5 unborn human individual who may be born. 6 8. In order to make an informed choice about whether to continue her 7 pregnancy, the pregnant woman has a legitimate interest in knowing the 8 likelihood of the fetus surviving to full-term birth based upon the 9 presence of cardiac activity. 10 § 2. Article 41 of the public health law is amended by adding a new 11 title 5-B to read as follows: 12 TITLE V-B 13 ABORTION 14 Section 4164-a. Definitions. 15 4164-b. Application. 16 4164-c. Detectable heartbeat. 17 4164-d. Preliminary informed consent. 18 4164-e. Informed consent after detection of a heartbeat. 19 4164-f. Performance of abortion. 20 4164-g. Medical emergency. 21 4164-h. Reporting. 22 4164-i. Duties of the department. 23 4164-j. Culpability of the physician. 24 4164-k. Culpability of the pregnant woman. 25 4164-l. Civil action. 26 § 4164-a. Definitions. As used in this title: 27 1. "Conception" means fertilization. 28 2. "Contraceptive" means a drug, device, or chemical that prevents 29 conception. 30 3. "DNA" means deoxyribonucleic acid. 31 4. "Fetal heartbeat" means cardiac activity or the steady and repeti- 32 tive rhythmic contraction of the fetal heart within the gestational sac. 33 5. "Fetus" means the human offspring developing during pregnancy from 34 the moment of conception and includes the embryonic stage of develop- 35 ment. 36 6. "Gestational age" means the age of an unborn human individual as 37 calculated from the first day of the last menstrual period of a pregnant 38 woman. 39 7. "Gestational sac" means the structure that comprises the extraem- 40 bryonic membranes that envelop the fetus and that is typically visible 41 by ultrasound after the fourth week of pregnancy. 42 8. "Intrauterine pregnancy" means a pregnancy in which the fetus is 43 attached to the placenta within the uterus of the pregnant woman. 44 9. "Medical emergency" means a condition of a pregnant woman that, in 45 the reasonable judgment of the physician who is attending the woman, 46 creates an immediate threat of serious risk to the life or physical 47 health of the woman from the continuation of the pregnancy necessitating 48 the immediate performance or inducement of an abortion. 49 10. "Medical necessity" means a medical condition of a pregnant woman 50 that, in the reasonable judgment of the physician who is attending the 51 woman, so complicates the pregnancy that it necessitates the immediate 52 performance or inducement of an abortion. 53 11. "Physician" means an individual licensed under article one hundred 54 thirty-one of the education law to practice medicine and surgery or 55 osteopathic medicine and surgery.A. 5389 3 1 12. "Pregnancy" means the human female reproductive condition that 2 begins with fertilization, when the woman is carrying the developing 3 human offspring, and that is calculated from the first day of the last 4 menstrual period of the woman. 5 13. "Probable gestational age of the embryo or fetus" means the gesta- 6 tional age that, in the judgment of a physician, is, with reasonable 7 probability, the gestational age of the embryo or fetus at the time that 8 the physician informs a pregnant woman pursuant to section forty-one 9 hundred sixty-four-d of this title. 10 14. "Spontaneous miscarriage" means the natural or accidental termi- 11 nation of a pregnancy and the expulsion of the fetus, typically caused 12 by genetic defects in the fetus or physical abnormalities in the preg- 13 nant woman. 14 15. "Standard medical practice" means the degree of skill, care, and 15 diligence that a physician of the same medical specialty would employ in 16 like circumstances. As applied to the method used to determine the pres- 17 ence of a fetal heartbeat for purposes of section forty-one hundred 18 sixty-four-c of this title, "standard medical practice" includes employ- 19 ing the appropriate means of detection depending on the estimated gesta- 20 tional age of the fetus and the condition of the woman and her pregnan- 21 cy. 22 16. "Unborn human individual" means an individual organism of the 23 species homo sapiens from fertilization until live birth. 24 § 4164-b. Application. 1. The provisions of this title apply only to 25 abortions involving intrauterine pregnancies. 26 2. The provisions of this title shall not apply to abortions in cases 27 in which the method used to test for the presence of a fetal heartbeat 28 in compliance with subdivision one of section forty-one hundred sixty- 29 four-c of this title does not reveal a fetal heartbeat. 30 3. Nothing in this title shall prohibit the sale, use, prescription, 31 or administration of a drug, device, or chemical that is designed for 32 contraceptive purposes. 33 § 4164-c. Detectable heartbeat. 1. Any person who intends to perform 34 or induce an abortion on a pregnant woman shall determine whether there 35 is a detectable fetal heartbeat of the unborn human individual the preg- 36 nant woman is carrying. The method of determining the presence of a 37 fetal heartbeat shall be consistent with the person's good faith under- 38 standing of standard medical practice and in accordance with all appli- 39 cable rules promulgated by the commissioner. The person who determines 40 the presence or absence of a fetal heartbeat shall record in the preg- 41 nant woman's medical record the estimated gestational age of the unborn 42 human individual, the method used to test for a fetal heartbeat, the 43 date and time of the test, and the results of the test. 44 2. Except as provided in section forty-one hundred sixty-four-g of 45 this title, no person shall knowingly and purposefully perform or induce 46 an abortion on a pregnant woman before: 47 (a) determining in accordance with subdivision one of this section 48 whether the unborn human individual the pregnant woman is carrying has a 49 detectable heartbeat; and 50 (b) complying with the notification and consent requirements of 51 section forty-one hundred sixty-four-d, and if applicable, section 52 forty-one hundred sixty-four-e of this title. 53 § 4164-d. Preliminary informed consent. 1. Except when there is a 54 medical emergency or medical necessity as provided in section forty-one 55 hundred sixty-four-g of this title, an abortion shall be performed or 56 induced only if all of the following conditions are satisfied:A. 5389 4 1 (a) At least twenty-four hours prior to the performance or inducement 2 of the abortion, a physician meets with the pregnant woman in person in 3 an individual, private setting and gives her an adequate opportunity to 4 ask questions about the abortion that will be performed or induced. At 5 this meeting, the physician shall inform the pregnant woman, verbally 6 or, if she is hearing impaired, by other means of communication, of all 7 of the following: 8 (1) the nature and purpose of the particular abortion procedure to be 9 used and the medical risks associated with that procedure; 10 (2) the probable gestational age of the embryo or fetus; and 11 (3) the medical risks associated with the pregnant woman carrying the 12 pregnancy to term. 13 (b) The meeting described in paragraph (a) of this subdivision need 14 not occur at the facility where the abortion is to be performed or 15 induced, and the physician involved in the meeting need not be affil- 16 iated with that facility or with the physician who is scheduled to 17 perform or induce the abortion. The physician involved in the meeting 18 shall provide to the pregnant woman the physician's name and contact 19 information. 20 (c) At least twenty-four hours prior to the performance or inducement 21 of the abortion, the physician who is to perform or induce the abortion 22 or the physician's agent does each of the following in person, by tele- 23 phone, by certified mail, return receipt requested, or by regular mail 24 evidenced by a certificate of mailing: 25 (1) inform the pregnant woman of the name of the physician who is 26 scheduled to perform or induce the abortion; 27 (2) give the pregnant woman copies of the published materials 28 described in section forty-one hundred sixty-four-i of this title; and 29 (3) inform the pregnant woman that the materials given pursuant to 30 section forty-one hundred sixty-four-i of this title are published by 31 the state and that they describe the embryo or fetus and list agencies 32 that offer alternatives to abortion. The pregnant woman may choose to 33 examine or not to examine the materials. A physician or an agent of a 34 physician may choose to be disassociated from the materials and may 35 choose to comment or not comment on the materials. 36 (d) If it has been determined that the unborn human individual the 37 pregnant woman is carrying has a detectable heartbeat, the physician who 38 is to perform or induce the abortion shall comply with the informed 39 consent requirements in section forty-one hundred sixty-four-e of this 40 title in addition to complying with the informed consent requirements of 41 this section. 42 (e) Prior to the performance or inducement of the abortion, the preg- 43 nant woman signs a form consenting to the abortion and certifies both of 44 the following on that form: 45 (1) she has received the information and materials described in 46 section forty-one hundred sixty-four-i of this title, and her questions 47 about the abortion that will be performed or induced have been answered 48 in a satisfactory manner; and 49 (2) she consents to the particular abortion voluntarily, knowingly, 50 intelligently, and without coercion by any person, and she is not under 51 the influence of any drug of abuse or alcohol. 52 (f) The form shall contain the name and contact information of the 53 physician who provided to the pregnant woman the information described 54 in paragraph (a) of this subdivision. 55 (g) Prior to the performance or inducement of the abortion, the physi- 56 cian who is scheduled to perform or induce the abortion or the physi-A. 5389 5 1 cian's agent receives a copy of the pregnant woman's signed form on 2 which she consents to the abortion and that includes the certification 3 required by paragraph (e) of this subdivision. 4 2. If the conditions specified in this section are satisfied, consent 5 to an abortion shall be presumed to be valid and effective. 6 § 4164-e. Informed consent after detection of a heartbeat. 1. If a 7 person who intends to perform or induce an abortion on a pregnant woman 8 has determined, under section forty-one hundred sixty-four-c of this 9 title, that the unborn human individual the pregnant woman is carrying 10 has a detectable heartbeat, the person shall not, except as provided in 11 subdivision two of this section, perform or induce the abortion until 12 all of the following requirements have been met and at least twenty-four 13 hours have elapsed after the last of the requirements is met: 14 (a) the person intending to perform or induce the abortion shall 15 inform the pregnant woman in writing that the unborn human individual 16 the pregnant woman is carrying has a fetal heartbeat; 17 (b) the person intending to perform or induce the abortion shall 18 inform the pregnant woman, to the best of the person's knowledge, of the 19 statistical probability of bringing the unborn human individual possess- 20 ing a detectable fetal heartbeat to term based on the gestational age of 21 the unborn human individual or, if the commissioner has specified 22 statistical probability information pursuant to rules adopted under 23 subdivision three of this section, shall provide to the pregnant woman 24 that information; and 25 (c) the pregnant woman shall sign a form acknowledging that the preg- 26 nant woman has received information from the person intending to perform 27 or induce the abortion that the unborn human individual the pregnant 28 woman is carrying has a fetal heartbeat and that the pregnant woman is 29 aware of the statistical probability of bringing the unborn human indi- 30 vidual the pregnant woman is carrying to term. 31 2. The provisions of subdivision one of this section shall not apply 32 if the person who intends to perform or induce the abortion believes 33 that a medical emergency exists that prevents compliance with such 34 subdivision. 35 3. The commissioner may adopt rules that specify information regarding 36 the statistical probability of bringing an unborn human individual 37 possessing a detectable heartbeat to term based on the gestational age 38 of the unborn human individual. The rules shall be based on available 39 medical evidence. 40 4. This section shall not have the effect of repealing or limiting any 41 other provision of law relating to informed consent for an abortion. 42 § 4164-f. Performance of abortion. 1. (a) A person who performs or 43 induces an abortion on a pregnant woman shall do whichever of the 44 following is applicable: 45 (1) If the reason for the abortion purportedly is to preserve the 46 health of the pregnant woman, the person shall specify in a written 47 document the medical condition that the abortion is asserted to address 48 and the medical rationale for the person's conclusion that the abortion 49 is necessary to address that condition; or 50 (2) If the reason for the abortion is other than to preserve the 51 health of the pregnant woman, the person shall specify in a written 52 document that maternal health is not the purpose of the abortion. 53 (b) The person who specifies the information in the document described 54 in paragraph (a) of this subdivision shall place the document in the 55 pregnant woman's medical records. For at least seven years from the dateA. 5389 6 1 the document is created, the person who specifies the information shall 2 maintain a copy of the document in the person's own records. 3 2. In the event that testing reveals a fetal heartbeat as provided in 4 section forty-one hundred sixty-four-c of this title, except as provided 5 in subdivision three of this section, no person shall knowingly and 6 purposefully perform or induce an abortion on a pregnant woman with the 7 specific intent of causing or abetting the termination of the life of 8 the unborn human individual the pregnant woman is carrying. Whoever 9 violates the provisions of this subdivision is guilty of abortion in the 10 third degree as provided in section 125.41 of the penal law. 11 3. (a) The provisions of subdivision two of this section shall not 12 apply to a physician who performs a medical procedure that, in the 13 physician's reasonable medical judgment, is designed or intended to 14 prevent the death of the pregnant woman or to prevent a serious risk of 15 the substantial and irreversible impairment of a major bodily function 16 of the pregnant woman, as provided in section forty-one hundred sixty- 17 four-g of this title. 18 (b) A physician who performs a medical procedure as described in this 19 subdivision shall declare, in a written document, that the medical 20 procedure is necessary, to the best of the physician's reasonable 21 medical judgment, to prevent the death of the pregnant woman or to 22 prevent a serious risk of the substantial and irreversible impairment of 23 a major bodily function of the pregnant woman. In the document, the 24 physician shall specify the pregnant woman's medical condition that the 25 medical procedure is asserted to address and the medical rationale for 26 the physician's conclusion that the medical procedure is necessary to 27 prevent the death of the pregnant woman or to prevent a serious risk of 28 the substantial and irreversible impairment of a major bodily function 29 of the pregnant woman. 30 (c) A physician who performs a medical procedure as described in this 31 subdivision shall place the written document required by this subdivi- 32 sion in the pregnant woman's medical records. For at least seven years 33 from the date the document is created, the physician shall maintain a 34 copy of the document in the physician's own records. 35 4. The provisions of subdivision two of this section shall not have 36 the effect of repealing or limiting any other provision of law that 37 restricts or regulates the performance or inducement of an abortion by a 38 particular method or during a particular stage of a pregnancy. 39 § 4164-g. Medical emergency. 1. If a medical emergency or medical 40 necessity compels the performance or inducement of an abortion, the 41 physician who will perform or induce the abortion, prior to its perform- 42 ance or inducement, if possible, shall inform the pregnant woman of the 43 medical indications supporting the physician's judgment that an immedi- 44 ate abortion is necessary. 45 2. The provisions of sections forty-one hundred sixty-four-d and 46 forty-one hundred sixty-four-e of this title shall not apply to a physi- 47 cian who performs or induces the abortion if the physician believes that 48 a medical emergency exists that prevents compliance with those sections. 49 3. Any physician who performs or induces an abortion without the prior 50 satisfaction of the conditions specified in sections forty-one hundred 51 sixty-four-d and forty-one hundred sixty-four-e of this title because of 52 a medical emergency or medical necessity shall make written notations in 53 the pregnant woman's medical records of the following: 54 (a) the physician's belief that a medical emergency necessitating the 55 abortion existed;A. 5389 7 1 (b) the medical condition of the pregnant woman that assertedly 2 prevented compliance with the provisions of sections forty-one hundred 3 sixty-four-d and forty-one hundred sixty-four-e of this title; and 4 (c) the reasons for the conclusion that a medical emergency or medical 5 necessity exists. 6 4. The physician shall maintain in the physician's own records a copy 7 of the notations referred to in subdivision three of this section for at 8 least seven years from the date the notations are made. 9 § 4164-h. Reporting. 1. A physician who performs or induces or 10 attempts to perform or induce an abortion on a pregnant woman shall 11 submit a report to the department in accordance with the forms, rules, 12 and regulations adopted by the department that includes all of the 13 information the physician is required to certify in writing or determine 14 under the provisions of this title. If a person other than the physician 15 makes or maintains a record as required on the physician's behalf or at 16 the physician's direction, that person shall comply with the reporting 17 requirements as if the person were the physician. 18 2. By September thirtieth of each year, the department shall issue a 19 public report that provides statistics for the previous calendar year 20 compiled from all of the reports covering that calendar year submitted 21 to the department in accordance with this section for each of the items 22 listed in subdivision one of this section. The report shall also provide 23 the statistics for each previous calendar year in which a report was 24 filed with the department pursuant to this section, adjusted to reflect 25 any additional information that a physician provides to the department 26 in a late or corrected report. The department shall ensure that none of 27 the information included in the report could reasonably lead to the 28 identification of any pregnant woman upon whom an abortion is performed. 29 3. The physician shall submit the report described in subdivision one 30 of this section to the department within fifteen days after the woman is 31 discharged. If the physician fails to submit the report more than thirty 32 days after that fifteen-day deadline, the physician shall be subject to 33 a late fee of five hundred dollars for each additional thirty-day period 34 or portion of a thirty-day period the report is overdue. A physician who 35 is required to submit to the department a report under subdivision one 36 of this section and who has not submitted a report or has submitted an 37 incomplete report more than one year following the fifteen-day deadline 38 may, in an action brought by the department, be directed by a court of 39 competent jurisdiction to submit a complete report to the department 40 within a period of time stated in a court order or be subject to 41 contempt of court. 42 4. No person shall falsify any report required under this section. 43 Whoever violates the provisions of this section is guilty of abortion 44 report falsification, a class A misdemeanor. 45 § 4164-i. Duties of the department. 1. The department shall publish in 46 English and in Spanish, in a typeface large enough to be clearly legi- 47 ble, and in an easily comprehensible format, the following materials on 48 the department's web site: 49 (a) Materials that inform the pregnant woman about family planning 50 information, of publicly funded agencies that are available to assist in 51 family planning, and of public and private agencies and services that 52 are available to assist her through the pregnancy, upon childbirth, and 53 while the child is dependent, including, but not limited to, adoption 54 agencies. The materials shall be geographically indexed; include a 55 comprehensive list of the available agencies, a description of the 56 services offered by the agencies, and the telephone numbers andA. 5389 8 1 addresses of the agencies; and inform the pregnant woman about available 2 medical assistance benefits for prenatal care, childbirth, and neonatal 3 care and about the support obligations of the father of a child who is 4 born alive. The department shall ensure that the materials described in 5 this paragraph are comprehensive and do not directly or indirectly 6 promote, exclude, or discourage the use of any agency or service 7 described in this subdivision. 8 (b) Materials that inform the pregnant woman of the probable anatom- 9 ical and physiological characteristics of the zygote, blastocyte, 10 embryo, or fetus at two-week gestational increments for the first 11 sixteen weeks of pregnancy and at four-week gestational increments from 12 the seventeenth week of pregnancy to full term, including any relevant 13 information regarding the time at which the fetus possibly would be 14 viable. The department shall cause these materials to be published only 15 after it consults with the medical society of the state of New York and 16 the New York section of the American college of obstetricians and gyne- 17 cologists relative to the probable anatomical and physiological charac- 18 teristics of a zygote, blastocyte, embryo, or fetus at the various 19 gestational increments. The materials shall use language that is under- 20 standable by the average person who is not medically trained, shall be 21 objective and nonjudgmental, and shall include only accurate scientific 22 information about the zygote, blastocyte, embryo, or fetus at the vari- 23 ous gestational increments. If the materials use a pictorial, photo- 24 graphic, or other depiction to provide information regarding the zygote, 25 blastocyte, embryo, or fetus, the materials shall include, in a conspic- 26 uous manner, a scale or other explanation that is understandable by the 27 average person and that can be used to determine the actual size of the 28 zygote, blastocyte, embryo, or fetus at a particular gestational incre- 29 ment as contrasted with the depicted size of the zygote, blastocyte, 30 embryo, or fetus at that gestational increment. 31 2. Upon the submission of a request to the department by any person, 32 hospital, physician, or medical facility for one copy of the materials 33 published in accordance with subdivision one of this section, the 34 department shall make the requested copy of the materials available to 35 the person, hospital, physician, or medical facility that requested the 36 copy. 37 3. The department shall prepare and conduct a public information 38 program to inform women of all available governmental programs and agen- 39 cies that provide services or assistance for family planning, prenatal 40 care, child care, or alternatives to abortion. 41 § 4164-j. Culpability of the physician. 1. The failure of a physician 42 to satisfy the conditions of section forty-one hundred sixty-four-d of 43 this title prior to performing or inducing an abortion upon a pregnant 44 woman may be the basis of both of the following: 45 (a) A civil action for compensatory and exemplary damages as described 46 in subdivision two of this section; 47 (b) disciplinary action under subdivision fifty of section sixty-five 48 hundred thirty of the education law. 49 2. (a) Subject to the provisions of paragraph (b) of this subdivision, 50 any physician who performs or induces an abortion with actual knowledge 51 that the conditions specified in section forty-one hundred sixty-four-d 52 of this title have not been satisfied or with a heedless indifference as 53 to whether those conditions have been satisfied is liable in compensato- 54 ry and exemplary damages in a civil action to any person, or the repre- 55 sentative of the estate of any person, who sustains injury, death, or 56 loss to person or property as a result of the failure to satisfy thoseA. 5389 9 1 conditions. In the civil action, the court additionally may enter any 2 injunctive or other equitable relief that it considers appropriate. 3 (b) The following shall be affirmative defenses in a civil action 4 authorized by paragraph (a) of this subdivision: 5 (1) the physician performed or induced the abortion under the circum- 6 stances described in section forty-one hundred sixty-four-g of this 7 title; and 8 (2) the physician made a good faith effort to satisfy the conditions 9 specified in section forty-one hundred sixty-four-d of this title. 10 3. An employer or other principal is not liable in damages in a civil 11 action authorized by paragraph (a) of subdivision two of this section on 12 the basis of the doctrine of respondent superior unless either of the 13 following applies: 14 (a) the employer or other principal had actual knowledge or, by the 15 exercise of reasonable diligence, should have known that an employee or 16 agent performed or induced an abortion with actual knowledge that the 17 conditions specified in section forty-one hundred sixty-four-d of this 18 title had not been satisfied or with a heedless indifference as to 19 whether those conditions had been satisfied; or 20 (b) the employer or other principal negligently failed to secure the 21 compliance of an employee or agent with section forty-one hundred 22 sixty-four-d of this title. 23 4. The provisions of this section shall be the exclusive civil remedy 24 for persons, or the representatives of estates of persons, who allegedly 25 sustain injury, death, or loss to person or property as a result of a 26 failure to satisfy the conditions specified in section forty-one hundred 27 sixty-four-d of this title. 28 § 4164-k. Culpability of the pregnant woman. A pregnant woman on whom 29 an abortion is performed or induced in violation of the provisions of 30 this title is not guilty of violating any of those provisions; is not 31 guilty of attempting to commit, conspiring to commit, or complicity in 32 committing a violation of any of those provisions; and is not subject to 33 a civil penalty based on the abortion being performed or induced in 34 violation of any of those provisions. 35 § 4164-l. Civil action. 1. A woman who meets any one or more of the 36 following criteria may file a civil action for the wrongful death of her 37 unborn child: 38 (a) A woman on whom an abortion was performed or induced in violation 39 of the provisions of subdivision two of section forty-one hundred 40 sixty-four-c or subdivision two of section forty-one hundred 41 sixty-four-f of this title; 42 (b) A woman on whom an abortion was performed or induced who was not 43 given the information described in paragraphs (a) and (b) of subdivision 44 one of section forty-one hundred sixty-four-e of this title or who did 45 not sign a form described in paragraph (c) of subdivision one of section 46 forty-one hundred sixty-four-e of this title. 47 2. A woman who prevails in an action filed under subdivision one of 48 this section shall receive both of the following from the person who 49 committed the one or more acts described in subdivision one of this 50 section: 51 (a) damages in an amount equal to ten thousand dollars or an amount 52 determined by the trier of fact after consideration of the evidence (at 53 the mother's election at any time prior to final judgment) subject to 54 the same defenses and requirements of proof, except any requirement of 55 live birth, as would apply to a suit for the wrongful death of a child 56 who had been born alive; andA. 5389 10 1 (b) court costs and reasonable attorney's fees. 2 3. If the defendant in an action filed under subdivision one of this 3 section prevails and the court finds the action to be frivolous, the 4 court shall award the defendant reasonable attorney's fees in accordance 5 with section eighty-three hundred three-a of the civil practice law and 6 rules. 7 § 3. Section 6530 of the education law is amended by adding a new 8 subdivision 50 to read as follows: 9 (50) Failure to comply with any of the requirements regarding making 10 or maintaining medical records or documents described in subdivision one 11 of section forty-one hundred sixty-four-c, subdivisions one and three of 12 section forty-one hundred sixty-four-f or subdivision three of section 13 forty-one hundred sixty-four-g of the public health law. 14 § 4. The penal law is amended by adding a new section 125.41 to read 15 as follows: 16 § 125.41 Abortion in the third degree. 17 A person is guilty of abortion in the third degree when he or she 18 commits an abortional act upon a female, before determining whether the 19 unborn human individual the pregnant female is carrying has a detectable 20 heartbeat, as provided in title five-B of article forty-one of the 21 public health law. 22 Abortion in the third degree is a class E felony. 23 § 5. a. There is hereby created the joint legislative committee on 24 adoption promotion and support. The committee may review or study any 25 matter that it considers relevant to the operation of the adoption proc- 26 ess in New York, with priority given to the study or review of mech- 27 anisms to enhance the effectiveness and awareness of the process. 28 b. The committee shall consist of three members of the assembly 29 appointed by the speaker of the assembly and three members of the senate 30 appointed by the temporary president of the senate. Not more than two 31 members appointed by the speaker of the assembly and not more than two 32 members appointed by the temporary president of the senate may be of the 33 same political party. Each member of the committee shall hold office 34 during the legislative session in which the member is appointed and 35 until a successor has been appointed, notwithstanding the adjournment of 36 the session in which the member was appointed or the expiration of the 37 member's term as a member of the legislature. Any vacancies occurring 38 among the members of the committee shall be filled in the manner of the 39 original appointment. 40 c. The committee shall have the same powers as other standing or 41 select committees of the legislature. 42 § 6. a. A court judgment or order suspending enforcement of any 43 provision of this act shall not to be regarded as tantamount to repeal 44 of that provision. 45 b. After the issuance of a decision by the supreme court of the United 46 States overruling Roe v. Wade, 410 U.S. 113 (1973), the issuance of any 47 other court order or judgment restoring, expanding, or clarifying the 48 authority of states to prohibit or regulate abortion entirely or in 49 part, or the effective date of an amendment to the Constitution of the 50 United States restoring, expanding, or clarifying the authority of 51 states to prohibit or regulate abortion entirely or in part, the attor- 52 ney general may apply to the pertinent state or federal court for either 53 or both of the following: 54 (1) A declaration that any one or more provisions of this act are 55 constitutional;A. 5389 11 1 (2) A judgment or order lifting an injunction against the enforcement 2 of any one or more provisions of this act. 3 c. If the attorney general fails to apply for the relief described in 4 this section within the thirty-day period after the occurrence of an 5 event described in subdivision b of this section, any county prosecutor 6 may apply to the appropriate state or federal court for such relief. 7 § 7. The commissioner of the department of health is authorized and 8 directed to promulgate all rules and regulations he or she deems neces- 9 sary and appropriate to implement the provisions of this act on or 10 before its effective date, including, but not limited to: 11 a. rules specifying the appropriate methods of determining the pres- 12 ence of a fetal heartbeat of an unborn individual based on standard 13 medical practice; and 14 b. information required to be submitted by a physician performing 15 abortions to the department of health. 16 § 8. Severability. If any clause, sentence, paragraph, section or part 17 of this act shall be adjudged by any court of competent jurisdiction to 18 be invalid and after exhaustion of all further judicial review, the 19 judgment shall not affect, impair or invalidate the remainder thereof, 20 but shall be confined in its operation to the clause, sentence, para- 21 graph, section or part of this act directly involved in the controversy 22 in which the judgment shall have been rendered. 23 § 9. This act shall take effect on the first of January next succeed- 24 ing the date on which it shall have become a law.