A08907 Summary:

BILL NOA08907
 
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Add Art 41 Title 5-B 4164-a - 4164-h, Pub Health L
 
Relates to protecting pain-capable unborn children.
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A08907 Committee Votes:

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A08907 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8907
 
                   IN ASSEMBLY
 
                                     January 8, 2018
                                       ___________
 
        Introduced by M. of A. LAWRENCE -- read once and referred to the Commit-
          tee on Health
 
        AN  ACT  to amend the public health law, in relation to protecting pain-
          capable unborn children
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  This  act  may be cited as the "pain-capable unborn child
     2  protection act".
     3    § 2. The legislature makes the following findings:
     4    (1) Pain receptors are present throughout the  unborn  child's  entire
     5  body and nerves link these receptors to the brain's thalamus and subcor-
     6  tical plate by no later than twenty weeks after fertilization.
     7    (2)  By  eight  weeks  after fertilization, the unborn child reacts to
     8  touch. After twenty weeks, the unborn child reacts to stimuli that would
     9  be recognized as painful if applied to an adult human.
    10    (3) In the unborn child, application of such painful stimuli is  asso-
    11  ciated with significant increases in stress hormones known as the stress
    12  response.
    13    (4)  Subjection  to  such painful stimuli is associated with long-term
    14  harmful neurodevelopmental effects, such as  altered  pain  sensitivity,
    15  and  possibly,  emotional, behavioral and learning disabilities later in
    16  life.
    17    (5) For the purposes of surgery on unborn children,  fetal  anesthesia
    18  is  routinely  administered  and is associated with a decrease in stress
    19  hormones compared to their level when painful stimuli are applied  with-
    20  out the anesthesia.
    21    (6)  The  position,  asserted by some medical experts, that the unborn
    22  child is incapable of experiencing pain until a point later in pregnancy
    23  than twenty weeks after fertilization predominantly rests on the assump-
    24  tion that the ability to experience pain depends on the cerebral  cortex
    25  and  requires  nerve  connections  between  the thalamus and the cortex.
    26  However, recent medical research and analysis,  especially  since  2007,
    27  provides strong evidence for the conclusion that a functioning cortex is
    28  not necessary to experience pain.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13856-01-7

        A. 8907                             2
 
     1    (7) Substantial evidence indicates that children born missing the bulk
     2  of the cerebral cortex, those with hydranencephaly, nevertheless experi-
     3  ence pain.
     4    (8) In adults, stimulation or ablation of the cerebral cortex does not
     5  alter  pain  perception,  while  stimulation or ablation of the thalamus
     6  does.
     7    (9) Substantial evidence indicates that structures used for pain proc-
     8  essing in early development differ from those of adults, using different
     9  neural elements available at specific times during development, such  as
    10  the subcortical plate, to fulfill the role of pain processing.
    11    (10)  The  position,  asserted  by  some commentators, that the unborn
    12  child remains in a coma-like sleep state that precludes the unborn child
    13  experiencing pain is inconsistent with the documented reaction of unborn
    14  children to painful stimuli and with the experience  of  fetal  surgeons
    15  who had found it necessary to sedate the unborn child with anesthesia to
    16  prevent  the unborn child from engaging in vigorous movement in reaction
    17  to invasive surgery.
    18    (11) Consequently, there  is  substantial  medical  evidence  that  an
    19  unborn  child is capable of experiencing pain by twenty (20) weeks after
    20  fertilization. The Legislature has the constitutional authority to  make
    21  this  judgment. As the United States Supreme Court has noted in Gonzales
    22  v. Carhart, 550 U.S. 124, 162-64 (2007). "The Court has given state  and
    23  federal  legislatures wide discretion to pass legislation in areas where
    24  there is medical and scientific  uncertainty...See  Marshall  v.  United
    25  States,  414  U.S.  417, 427 (1974) ('When Congress undertakes to act in
    26  areas fraught with medical  and  scientific  uncertainties,  legislative
    27  options  must  be  especially  broad.')...The law need not give abortion
    28  doctors unfettered choice in the course of their medical  practice,  nor
    29  should  it  elevate  their  status above other physicians in the medical
    30  community....Medical uncertainty does  not  foreclose  the  exercise  of
    31  legislative power in the abortion context any more than it does in other
    32  contexts."
    33    (12)  It  is  the  purpose  of  the State to assert a compelling state
    34  interest in protecting the lives of unborn children from  the  stage  at
    35  which  substantial  medical  evidence indicates that they are capable of
    36  feeling pain.
    37    (13) In enacting this legislation the state is not asking the  Supreme
    38  Court  to  overturn  or replace its holding, first articulated in Roe v.
    39  Wade and reaffirmed in Planned Parenthood of  Southeastern  Pennsylvania
    40  v. Casey, that the state interest in unborn human life, which is "legit-
    41  imate" throughout pregnancy, becomes "compelling" at viability.  Rather,
    42  it  asserts  a  separate  and  independent  compelling state interest in
    43  unborn human life that exists once the unborn child is capable of  feel-
    44  ing  pain,  which  is asserted not in replacement of, but in addition to
    45  the state's compelling state interest in protecting the lives of  unborn
    46  children from the stage of viability.
    47    (14) The United States Supreme Court has established that the "consti-
    48  tutional  liberty  of  the  woman  to have some freedom to terminate her
    49  pregnancy...is not so unlimited...that from the outset the State  cannot
    50  show  its  concern  for  the life of the unborn, and at a later point in
    51  fetal development the State's interest in life has sufficient  force  so
    52  that  the  right  of  the  woman  to  terminate  the  pregnancy  can  be
    53  restricted." Planned Parenthood of Southeastern Pennsylvania  v.  Casey,
    54  505 U.S. 833, 869 (1992).
    55    (15)  The  Supreme Court decision upholding the Partial-Birth Abortion
    56  Ban Act, Gonzales  v.  Carhart,  550  U.S.  124  (2007)  vindicated  the

        A. 8907                             3
 
     1  dissenting  opinion  in  the  earlier  decision  that  had  struck  down
     2  Nebraska's Partial-Birth Abortion Ban Act.  That  opinion  stated,  "{In
     3  Casey}  We  held it was inappropriate for the Judicial Branch to provide
     4  an  exhaustive list of state interests implicated by abortion...Casey is
     5  premised on the States having an important constitutional role in defin-
     6  ing their interests in the abortion debate. It is only with this princi-
     7  ple  in  mind  that  {a  state's}  interests   can   be   given   proper
     8  weight...States  also  have an interest in forbidding medical procedures
     9  which, in the State's reasonable determination, might cause the  medical
    10  profession or society as a whole to become insensitive, even disdainful,
    11  to  life,  including life in the human fetus...A State may take measures
    12  to ensure the medical profession and its members are viewed as  healers,
    13  sustained  by  a  compassionate  and rigorous ethic and cognizant of the
    14  dignity and value of human life, even life which cannot survive  without
    15  the  assistance  of  others."  Stenberg v. Carhart, 350 U.S. 914, 958-59
    16  (2000)(Kennedy, J., dissenting).
    17    (16) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which  the
    18  context  of  determining  the severability of a state statute regulating
    19  abortion in the United States  Supreme  Court  noted  that  an  explicit
    20  statement  of  legislative  intent  specifically  made  applicable  to a
    21  particular statute is of greater weight than a general savings or sever-
    22  ability clause, it is the intent of the State that if any  one  or  more
    23  provisions,  sections, subsections, sentences, clauses, phrases or words
    24  of this act or the application thereof to any person or circumstance  is
    25  found  to be unconstitutional, the same is hereby declared to be severa-
    26  ble and the balance of this act shall remain  effective  notwithstanding
    27  such  unconstitutionality.  Moreover,  the  State declares that it would
    28  have passed this act, and each provision, section, subsection, sentence,
    29  clause, phrase or word thereof, irrespective of the fact that any one or
    30  more provisions, sections, subsections, sentences, clauses,  phrases  or
    31  words,  or  any  of  their applications, were to be declared unconstitu-
    32  tional.
    33    § 3. Article 41 of the public health law is amended by  adding  a  new
    34  title 5-B to read as follows:
    35                                  TITLE V-B
    36                    PAIN-CAPABLE UNBORN CHILD PROTECTION
    37  Section 4164-a. Definitions.
    38          4164-b. Protection  of unborn child capable of feeling pain from
    39                    abortion.
    40          4164-c. Reporting.
    41          4164-d. Criminal penalties.
    42          4164-e. Civil remedies.
    43          4164-f. Protection of privacy in court proceedings.
    44          4164-g. Litigation defense fund.
    45          4164-h. Construction.
    46    § 4164-a. Definitions. As used in this title:
    47    1. "Abortion" means the use or prescription of any  instrument,  medi-
    48  cine, drug, or any other substance or device:
    49    (a)  to  intentionally  kill  the  unborn child of a woman known to be
    50  pregnant; or
    51    (b) to intentionally terminate the pregnancy of a woman  known  to  be
    52  pregnant, with an intention other than:
    53    (i)  after viability to produce a live birth and preserve the life and
    54  health of the child born alive; or
    55    (ii) to remove a dead unborn child.

        A. 8907                             4

     1    2. "Attempt", with respect to an abortion, means conduct  that,  under
     2  the  circumstances  as  the  actor  believes  them  to be, constitutes a
     3  substantial step in a course of conduct planned to culminate in perform-
     4  ing an abortion in this state in violation of this title.
     5    3. "Fertilization" means the fusion of human spermatozoon with a human
     6  ovum.
     7    4.   "Medical emergency" means a condition that, in reasonable medical
     8  judgment, so complicates the medical condition  of  the  pregnant  woman
     9  that  it  necessitates  an  immediate  abortion of her pregnancy without
    10  first determining post-fertilization age to avert her death or for which
    11  the delay necessary to  determine  post-fertilization  age  will  create
    12  serious  risk  of  substantial and irreversible physical impairment of a
    13  major bodily function, not including psychological or  emotional  condi-
    14  tions.  A  condition may not be deemed a medical emergency if based on a
    15  claim or diagnosis that the  woman  will  engage  in  conduct  that  she
    16  intends  to result in her death or in substantial and irreversible phys-
    17  ical impairment of a major bodily function.
    18    5. "Physician" means  a  person  licensed  to  practice  medicine  and
    19  surgery  or  osteopathic  medicine  and  surgery,  or  otherwise legally
    20  authorized to perform an abortion.
    21    6. "Post-fertilization age" means the  age  of  the  unborn  child  as
    22  calculated from the fusion of a human spermatozoon with a human ovum.
    23    7.  "Probable  post-fertilization age of the unborn child" means what,
    24  in reasonable medical judgment, will with reasonable probability be  the
    25  post-fertilization  age  of the unborn child at the time the abortion is
    26  planned to be performed or induced.
    27    8. "Reasonable medical judgment" means a medical judgment  that  would
    28  be  made by a reasonably prudent physician, knowledgeable about the case
    29  and the treatment possibilities with respect to the  medical  conditions
    30  involved.
    31    9.  "Serious  health  risk to the unborn child's mother" means that in
    32  reasonable medical judgment she has a condition that so complicates  her
    33  medical  condition that it necessitates the abortion of her pregnancy to
    34  avert her death or to avert serious risk of substantial and irreversible
    35  physical impairment of a major bodily function, not including psycholog-
    36  ical or emotional conditions. No greater risk may be determined to exist
    37  if it is based on a claim or diagnosis that the  woman  will  engage  in
    38  conduct  which  she intends to result in her death or in substantial and
    39  irreversible physical impairment of a major bodily function.
    40    10. "Unborn child" means an individual organism of  the  species  homo
    41  sapiens,  beginning  at  fertilization,  until  the  point of being born
    42  alive.
    43    11. "Woman" means a female human being whether or not she has  reached
    44  the age of majority.
    45    §  4164-b.  Protection  of  unborn  child capable of feeling pain from
    46  abortion.  1. No person shall perform or induce, or attempt  to  perform
    47  or induce, an abortion of an unborn child capable of feeling pain unless
    48  necessary to prevent serious health risk to the unborn child's mother.
    49    2. An unborn child shall be deemed capable of feeling pain when it has
    50  been  determined,  by the physician performing or inducing or attempting
    51  to perform or induce the abortion or by  another  physician  upon  whose
    52  determination  that  physician relies, that the probable post-fertiliza-
    53  tion age of the woman's unborn child is twenty or more weeks.
    54    3. Except in the case of a  medical  emergency,  no  abortion  may  be
    55  performed  or  induced or be attempted to be performed or induced unless
    56  the physician performing or inducing it has first made  a  determination

        A. 8907                             5
 
     1  of  the  probable  post-fertilization  age of the unborn child or relied
     2  upon such a determination made by  another  physician.  In  making  this
     3  determination,  the physician shall make such inquiries of the woman and
     4  perform  or cause to be performed such medical examinations and tests as
     5  a reasonably prudent physician, knowledgeable about  the  case  and  the
     6  medical  conditions  involved,  would  consider  necessary to perform in
     7  making an accurate diagnosis with respect to post-fertilization age.
     8    4. When an abortion of an unborn child  capable  of  feeling  pain  is
     9  necessary  to  prevent serious health risk to the unborn child's mother,
    10  the physician shall terminate the pregnancy  in  the  manner  which,  in
    11  reasonable  medical  judgment,  provides  the  best  opportunity for the
    12  unborn child to survive, unless, in reasonable medical judgment,  termi-
    13  nation  of the pregnancy in that manner would pose a greater risk either
    14  of the death of the pregnant woman or the substantial  and  irreversible
    15  physical impairment of a major bodily function, not including psycholog-
    16  ical  or  emotional  conditions, of the woman than would other available
    17  methods. No greater risk may be determined to exist if it is based on  a
    18  claim  or  diagnosis  that  the  woman  will engage in conduct which she
    19  intends to result in her death or in substantial and irreversible  phys-
    20  ical impairment of a major bodily function.
    21    §  4164-c.  Reporting.  1.  Any  physician  who performs or induces or
    22  attempts to perform or induce an abortion shall report  to  the  depart-
    23  ment, on a schedule and in accordance with forms and regulations adopted
    24  and promulgated by the department, that include:
    25    (a) Post-fertilization age:
    26    (i)  If  a  determination of probable post-fertilization age was made,
    27  whether ultrasound was employed in making  the  determination,  and  the
    28  week of probable post-fertilization age determined.
    29    (ii)  If  a  determination  of probable post-fertilization age was not
    30  made, the basis of the determination that a medical emergency existed.
    31    (b) Method of abortion: which of the following was employed:
    32    (i)   Medication   abortion   (such   as,   but   not   limited    to,
    33  mifepristone/misoprostol or methotRexate/misoprostol);
    34    (ii) Manual vacuum aspiration;
    35    (iii) Electrical vacuum aspiration;
    36    (iv) Dilation and evacuation;
    37    (v) Combined induction abortion and dilation and evacuation;
    38    (vi) Induction abortion with prostaglandins;
    39    (vii)  Induction  abortion  with intra-amniotic instillation (such as,
    40  but not limited to, saline or urea);
    41    (viii) Induction abortion, other; or
    42    (ix) Intact dilation and extraction (partial-birth)
    43    (c) Whether an intra-fetal injection was used in an attempt to  induce
    44  fetal demise (such as, but not limited to, intrafetal potassium chloride
    45  or digoxin);
    46    (d) Age and race of the patient;
    47    (e)  If the unborn child was deemed capable of experiencing pain under
    48  section forty-one hundred sixty-four-b of this title, the basis  of  the
    49  determination  that  the pregnant woman had a condition which so compli-
    50  cated her medical condition as to necessitate the abortion of her  preg-
    51  nancy  to  avert  her  death or to avert serious risk of substantial and
    52  irreversible physical impairment of a major bodily function, not includ-
    53  ing psychological or emotional conditions;
    54    (f) If the unborn child was deemed capable of experiencing pain  under
    55  section forty-one hundred sixty-four-b of this title, whether or not the
    56  method  of  abortion  used was one that, in reasonable medical judgment,

        A. 8907                             6
 
     1  provided the best opportunity for the unborn child to  survive  and,  if
     2  such  a  method was not used, the basis of the determination that termi-
     3  nation of the pregnancy in that manner would pose a greater risk  either
     4  of  the  death of the pregnant woman or of the substantial and irrevers-
     5  ible physical impairment of  a  major  bodily  function,  not  including
     6  psychological  or  emotional  conditions,  of the woman than would other
     7  available methods.
     8    2. Reports required by subdivision one of this section may not contain
     9  the name or the address of the patient whose pregnancy  was  terminated,
    10  nor  may  the  report  contain  any  other  information  identifying the
    11  patient, except that each report shall contain a unique  medical  record
    12  identifying  number,  to  enable  matching  the  report to the patient's
    13  medical records. These reports shall be maintained in strict  confidence
    14  by  the  department,  shall  not be available for public inspection, and
    15  shall not be made available except:
    16    (a) to the attorney general or a district  attorney  with  appropriate
    17  jurisdiction pursuant to a criminal investigation;
    18    (b) to the attorney general or a district attorney pursuant to a civil
    19  investigation  of  the  grounds  for  an  action under section forty-one
    20  hundred sixty-four-e of this title; or
    21    (c) pursuant to court order  in  an  action  under  section  forty-one
    22  hundred sixty-four-e of this title.
    23    3.  By June thirtieth of each year the department shall issue a public
    24  report providing statistics for the previous calendar year compiled from
    25  all of the reports covering that year submitted in accordance with  this
    26  section for each of the items listed in subdivision one of this section.
    27  Each  report shall also provide the statistics for all previous calendar
    28  years during which this section was in effect, adjusted to  reflect  any
    29  additional  information  from  late or corrected reports. The department
    30  shall take care to ensure that none of the information included  in  the
    31  public  reports could reasonably lead to the identification of any preg-
    32  nant woman upon whom an abortion was performed, induced, or attempted.
    33    4. Any physician who fails to submit a report by  the  end  of  thirty
    34  days  following  the due date established by regulation shall be subject
    35  to a late fee of one thousand dollars ($1,000) for each additional thir-
    36  ty-day period or portion of a thirty-day period the report  is  overdue.
    37  Any physician required to report in accordance with this act who has not
    38  submitted  a  report,  or  has submitted only an incomplete report, more
    39  than six months following the due date, may, in an action brought by the
    40  department, be directed by a court of competent jurisdiction to submit a
    41  complete report within a period stated by court order or be  subject  to
    42  civil  contempt.  Intentional  or  reckless  failure by any physician to
    43  conform to any requirement  of  this  section  constitutes  professional
    44  misconduct pursuant to title two-A of article two of this chapter.
    45    §  4164-d.  Criminal penalties.  Any person who intentionally or reck-
    46  lessly performs or induces or attempts to perform or induce an  abortion
    47  in  violation  of this title shall be guilty of a felony. No penalty may
    48  be assessed against the woman upon whom the  abortion  is  performed  or
    49  induced or attempted to be performed or induced.
    50    §  4164-e. Civil remedies. 1. Any woman upon whom an abortion has been
    51  performed or induced in violation of this title, or the  father  of  the
    52  unborn  child  who  was the subject of such an abortion, may maintain an
    53  action against the person who  performed  or  induced  the  abortion  in
    54  intentional  or reckless violation of this title for actual and punitive
    55  damages. Any woman upon whom an abortion has been attempted in violation
    56  of this title may maintain an action against the person who attempted to

        A. 8907                             7
 
     1  perform or induce the abortion in an intentional or  reckless  violation
     2  of this title for actual and punitive damages.
     3    2.  A cause of action for injunctive relief against any person who has
     4  intentionally or recklessly violated this title may be maintained (i) by
     5  the woman upon whom an adoption was performed or induced or attempted to
     6  be performed or induced in violation of this title; (ii) by  any  person
     7  who  is  the  spouse,  parent,  sibling  or guardian of, or a current or
     8  former licensed health care provider of, the woman upon whom an abortion
     9  has been performed or induced or attempted to be performed or induced in
    10  violation of this title; (iii) by a prosecuting attorney with  appropri-
    11  ate  jurisdiction; or (iv) by the attorney general. The injunction shall
    12  prevent the abortion provider from performing or inducing or  attempting
    13  to  perform  or  induce  further abortions in violation of this title in
    14  this state.
    15    3. If judgment is rendered in favor of  the  plaintiff  in  an  action
    16  described  in  this  section, the court shall also render judgment for a
    17  reasonable attorney's fee in favor of the plaintiff against the  defend-
    18  ant.
    19    4.  If  judgment  is  rendered in favor of the defendant and the court
    20  finds the plaintiff's suit was frivolous and brought in bad  faith,  the
    21  court  shall  also  render  judgment  for a reasonable attorney's fee in
    22  favor of the defendant against the plaintiff.
    23    5. No damages or attorney's fee may be assessed against the woman upon
    24  whom an abortion was performed or induced or attempted to  be  performed
    25  or induced except in accordance with subdivision four of this section.
    26    §  4164-f.  Protection of privacy in court proceedings. In every civil
    27  or criminal proceeding or action brought under  this  title,  the  court
    28  shall  rule whether the anonymity of any woman upon whom an abortion has
    29  been performed or induced or attempted to be performed or induced  shall
    30  be  preserved from public disclosure if she does not give her consent to
    31  such disclosure. The court shall make such a ruling and, upon  determin-
    32  ing  that  her  anonymity should be preserved, shall issue orders to the
    33  parties, witnesses, and counsel and shall  direct  the  sealing  of  the
    34  record  and exclusion of individuals from courtrooms or hearing rooms to
    35  the extent necessary to safeguard her identity from  public  disclosure.
    36  Each  such  order  shall  be  accompanied  by  specific written findings
    37  explaining why the anonymity of  the  woman  should  be  preserved  from
    38  public disclosure, why the order is essential to that end, how the order
    39  is  narrowly tailored to serve that interest, and why no reasonable less
    40  restrictive alternative exists. In the absence of written consent of the
    41  woman upon whom an abortion has been performed or induced  or  attempted
    42  to  be  performed  or induced, anyone, other than a public official, who
    43  brings an action under section forty-one hundred  sixty-four-e  of  this
    44  title  shall  do so under a pseudonym. This section may not be construed
    45  to conceal the identity of  the  plaintiff  or  of  witnesses  from  the
    46  defendant or from attorney for the defendant.
    47    §  4164-g. Litigation defense fund.  1. There is hereby established in
    48  the joint custody of the state comptroller and the department a  special
    49  fund  known  as  the Pain-Capable Unborn Child Protection Act Litigation
    50  Fund for the purpose of  providing  funds  to  pay  for  any  costs  and
    51  expenses  incurred  by the state attorney general in relation to actions
    52  surrounding defense of this law.
    53    2. The fund shall consist of: (a) appropriations made to  the  account
    54  by  the legislature; and (b) any donations, gifts, or grants made to the
    55  account.

        A. 8907                             8
 
     1    3. The fund shall retain the interest income derived from  the  moneys
     2  credited to the fund.
     3    §  4165-h. Construction. This act shall not be construed to repeal, by
     4  implication or otherwise, any  otherwise  applicable  provision  of  law
     5  regulating  or restricting abortion. An abortion that complies with this
     6  title but violates the provisions of any otherwise applicable  provision
     7  of  law  shall  be  deemed  unlawful  as  provided in such provision. An
     8  abortion that complies with the provisions of any  otherwise  applicable
     9  provision  of  law  regulating or restricting abortion but violates this
    10  title shall be deemed unlawful as provided in this title. If some or all
    11  of the provisions of this title  are  ever  temporarily  or  permanently
    12  restrained  or  enjoined  by judicial order, all other provisions of law
    13  regulating or restricting abortion shall  be  enforced  as  though  such
    14  restrained or enjoined provisions had not been adopted; provided, howev-
    15  er,  that  whenever  such  temporary  or  permanent restraining order of
    16  injunction is stayed or dissolved, or otherwise ceases to  have  effect,
    17  such provisions shall have full force and effect.
    18    § 4. This act shall take effect immediately.
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