Enacts the "reproductive health act"; repealer

Summary of provisions

Section 1 of the bill provides that the bill shall be known as the "Reproductive Health Act".

Section 2 of the bill creates a new Article 17 of the Public Health Law (PHL), which establishes in statute affirmative reproductive rights, specifically: (1) the fundamental right of every individual to choose or refuse contraception, and (2) the fundamental right of every female to determine the course of her pregnancy. Section 2 of the bill further states that an abortion may be performed by a qualified practitioner in the absence of fetal viability and at any time when necessary to protects a female's life or health.

Section 2 of the bill also provides that the senate shall not deny, regulate or restrict these fundamental tights, except by law, regulation or policy that is narrowly tailored to serve a compelling State interest or by a generally applicable law or regulation governing matters such as practitioner licensing, pharmaceuticals and medical devices, and medical procedures.

Section 2 additionally prohibits the State from discriminating against the exercise of reproductive rights in the provision of benefits, facilities, services, or information. Section 2 of the bill also states that nothing contained in the new PHL Article 17 alters any existing protections under state or federal law or regulation that permit a health care provider to refrain from providing abortions due to the provider's religious or moral belief.

Section 2 of the bill further sets forth certain definitions. In particular, the bill defines fetal viability as the point in pregnancy when, as determined by a physician or other qualified practitioners acting in good faith in accordance with generally accepted medical standards: (1) the gestational age of the fetus, measured from the first day of the woman's last menstrual period, is at least 24 weeks, and (2) there is a reasonable likelihood of the

fetus sustained survival outside the uterus without application of extraordinary medical measures.

Section 3 of the bill amends § PHL 4164 to provide that in the case of an abortion performed after a fetus is considered viable, the procedure may be delayed for the arrival of a second physician to take charge of a live birth only if the delay will not jeopardize the females life or health.

Section 4 of the bill repeals Education Law § 6811(8), which pertains to the sale, distribution, advertisement and display of contraceptives.

Section 5 and 7 of the bill repeal the five abortion-related crimes contained in the Penal Law, amend the title of Penal Law article 125 to delete the reference to abortion, and delete the definition of "abortional act" and "justifiable abortional act" from Penal Law § 125.05.

Section 6 of the bill amend the definition of "homicide" to delete references to "unborn child" and abortion.

Section 8 and 9 of the bill amend the first and second degree manslaughter statutes to delete the sections relating to causing a death of a female during the performance of an abortion.

Section 10, 11, and 12 of the bill make conforming changes by removing references to the crime of abortion in the Criminal Procedure Law, the County Law, and the Judiciary Law.

Section 13 of the bill provides that the bill would take effect immediately.

Existing law

Several New York statutes are unenforceable because they fail to protect rights recognized by the federal constitution, as interpreted by the United States Supreme Court. This bill revises New York law to remove the unenforceable provisions.

Article 125 of the Penal Law defines the crime of first-degree abortion and first-degree self abortion as homicides. Abortion or self-abortion is criminal unless justifiable, which means that it is a medical procedure performed with a female's consent: (1) under a reasonable belief that it is necessary to save the woman's life; or (2) when a woman is no more than twenty-four weeks pregnant. The crimes of manslaughter in the first and second degrees both include sections that impose criminal liability when a woman dies during the performance of an abortion that is not justifiable. Several components of article 125 conflict with decisions of the Supreme Court in Roe v. Wade and subsequent cases. In particular, Article 125 does not authorize a later-term abortion when a woman's health is at stake, and also criminalizes certain abortions performed before viability but after 24 weeks - both circumstance that conflict with the Roe line of cases, making current New York law unenforceable.

PHL § 4161(1) provides that abortion performed after the twelfth week of pregnancy may be performed only in a "hospital" and only on an in-patient basis. The subdivision further provides the abortion

performed after the twentieth week of pregnancy must be attended by a second physician who is to take charge of and provide immediate medical care for any live birth that may result from such abortion. This statute cannot be enforced in its current form in the State of New York due to several United States supreme court decisions that effectively invalidated various aspects of the law.

Education Law § 6811(8) prohibits the sale distribution of contraceptives to minors under the age of sixteen, requires the sale of contraceptives to person who are sixteen or over may be authorized only by a licensed pharmacist, and prohibits the advertisement or display of contraceptives. This statute was found to be unconstitutional, as applied to non-prescription contraceptives, by the United States Supreme Court in 1977, and thus is not followed.

Statement in support

In 1970, New York legalized abortions in some circumstances, thereby recognizing that a woman has a fundamental right to make decisions about the course of her pregnancy. Three years later, the United States Supreme Court issued its landmark decision in Roe v. Wade, 410 U.S.113(1973), holding that a woman has a fundamental right, protected by the federal constitution, to an abortion prior to fetal viability and, in cases there her life or health are at risk after viability. During the three decades since Roe v. Wade was decided, there has been numerous federal court decisions clarifying the scope to abortion, but New York's laws have never been updated and certain provisions are clearly unconstitutional.

Significantly, New York law currently does not contain any statement affirmatively recognizing a woman's right to choose the course of her pregnancy. Instead, the statuary contours of legal abortion are found only in negative form; the Penal Law sets forth the circumstances in which abortions are illegal, and only from those provisions can one discern the circumstances in which abortions are permitted.

Specifically, the Penal Law makes abortion a crime unless the woman is no more than 24 weeks pregnant or an abortion is necessary to save her life. These provisions deprive a woman of her constitutional rights as articulated by Roe because they criminalize an abortion performed after 24 weeks of pregnancy, even if the fetus is non-viable, and they criminalize a post-viability abortion that is necessary to protect a woman's health.

This bill corrects those provisions of State law which unconstitutionally burden a woman's right to obtain an abortion, and establishes an affirmative right to make reproductive health decisions in law. The bill eliminates Penal Law provisions to abortion, which draw an unnecessary distinction between abortion procedures and other medical procedures. These changes are similar to initiatives pursued by other states over the past decade- including California, Connecticut Hawaii. Maine, Maryland, Nevada, and Washington - which affirmatively recognizes a woman's fundamental right to make reproductive health decisions in statute or constitution and ensure that abortion is treated as a matter of women's health, not as a matter of criminal law.

This bill adds a new Article 17 to the Public Health Law (PFL) - entitled "Reproductive Health Act" - which affirms that a pregnant woman has a fundamental right to abortion when a fetus is not viable or if an abortion is necessary to preserve her life or health. The bill leaves the determination of whether a fetus is viable to the good faith medical judgment of a qualified physician or other practitioner, exercised in accordance with generally accepted medical standards as applied to the facts of the particular case.

Viability exists at the point in pregnancy when: (1) the gestational age of the fetus, measured from the first day of the woman's last menstrual period, is at least 24 weeks, and (2) there is a reasonable likelihood of the fetus's sustained survival outside the uterus without application of extraordinary medical measures. This standard incorporates accepted medical practices, provides guidance to practitioners in exercising their good faith medical judgment and is intended to prevent the abortion of viable fetuses, except when necessary to protect a woman's life or health.

While the bill repeals Penal Law provisions pertaining to abortion, sufficient protections still exist to address abortions which are performed by health care practitioners under circumstances that constitute unprofessional, tortuous or criminal conduct. Such practitioners can be subject to professional sanctions, civil liability, or criminal prosecution. This ensures that abortion is treated like any other medical procedure, subject to the same laws, regulations and principles that generally govern the conduct of medical practitioners.

For example, professional misconduct proceedings, which could result in penalties such as suspension, limitation, revocation, or annulment of the practitioner's license, could be commenced if the practitioner performs a procedure incompetently or performs a procedure which is outside the scope of his or her practice. Similarly, an abortion provider, like any other health care practitioner, could be subject to a medical malpractice lawsuit in civil court for injuries caused to a woman during a negligent performed procedure. See Kusterman v. Glick, 107 A.D2d664(2d Dept.1985), app. Dismissed, 64 N.Y. 2d 1040(1985).

If a woman were to die during an abortion procedure as a result of criminally negligent or reckless conduct by a physician, the physician could be criminally prosecuted, just like any other health care provider who caused injury to a patient as a result of such conduct. See, e.g. People v. Benjamin, 270 A.D.2d 428 (2d Dept. 2000)(upholding depraved indifference murder conviction based on defendant physician's conduct after he inflicted a fatal wound during an abortion procedure).

Moreover, there will continue to be sanctions if an unlicensed person performs and abortion or makes a viability determination, or holds himself or herself out as being able to do so. Education Law §6512 provides that if any person performs, or holds himself or herself out as being authorized to perform, an act which requires a professional license, he or she may be prosecuted for the unauthorized practice of a profession, a class E felony. Thus, someone who engages in abortion

procedures without a license faces the criminal sanctions as any other unlicensed person who performs a medical procedure.

The bill's elimination of the Penal Law provisions pertaining to abortion does not mean that there are no sanctions available to punish an act, such as assault, which is committed against a pregnant woman without consent and results in termination of a pregnancy or renders a viable fetus non-viable. Depending on the circumstances, such injuries would constitute "physical injury" or " serious physical injury" to the woman, as those terms are defined by Penal Law § 10.00, and could serve as the basis for criminal liability for several assault and assault-related offenses. See People v. Vercelletoo, 135 Misc.2d 40,46-47 (Ulster Co. Ct 1987) (finding that the destruction of placenta and miscarriage of seven-month fetus constituted a serious physical injury to the woman under the Penal Law); cf. People v. Thompson; 224 A.D. 2d 950 (4th Dept. 1996) (suggesting that evidence that victims suffered a miscarriage would be admissible as proof of serious physical injury to the victim). The perpetrators could also be answerable for his or her actions in a civil lawsuit brought by the victim. See Insurance Law §§ 5102(2) and 5104 (including" loss of a fetus" in the list of personal injuries which, if experienced as the result of a motor vehicle accident, constitute "serious injury" and can serve as the basis of a lawsuit notwithstanding the no-fault system).

As noted, the bill seeks to ensure that abortion is treated as a health matter and that women are free to make reproductive health decisions. Accordingly, the bill provides that the State is prohibited from discriminating against the exercise of reproductive rights in the provision of benefits, facilities, services, or information, which is intended to ensure continued public funding of abortion services. However, as with any other health matter, the right to make a decision about the course of medical treatment is not completely unfettered; as expressly stated in new PHL Article 17, as the State may infringe upon the fundamental right to have an abortion, but only by narrowly tailored law, regulation or policy, or by statutes and regulation of general applicability that pertain to matters such as professional licensing or regulation of medical facilities.

For example, current New York law addresses certain aspects of later-term abortions under PHL § 4164, requiring that abortions after twelfth week of pregnancy must be performed in a hospital on in-patient status and that a second physician must be present if an abortion is performed after viability to take charge of any resulting live birth. The bill does not seek to eliminate regulation of later-term abortion, but it does correct several constitutional deficiencies associated with the statute. See City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 43839(1983) (invalidating an Akron, Ohio ordinance requiring abortions after 12 weeks of pregnancy be performed in a hospital); over-ruled on other grounds, Planned Parenthood v. Casey, 505 U.S. 833 (1992); Planned Parenthood Association of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476,481-82 (1983) (invalidating a Missouri requirement that abortions after 12 weeks of pregnancy be performed in a hospital); Thornbugh v. American College of Obstetricians and

Gynecologists, 476 U.S. 747 (1986) (finding the second physician requirement to be unconstitutional because it did not include an exception for emergencies). Specifically, the bill amends PHL §4164 to: (1) permit abortions to be performed after viability in appropriate Article 28 facilities, which include general hospital and clinics, without requiring in-patients status; (2) adopt the viability standard in determining when a second physician must be present during an abortion; and (3) provide an exception to the second physician requirement when delay in securing the second physician's attendance would endanger the woman's life or health The bill also provides that the new PHL Article 17 does not alter any existing protections under existing "conscience clauses" - state or federal laws or regulations that permit a health care provider to refrain from providing abortions due to the provider's religious or moral beliefs.

Finally, in addition to establishing in statute the right to an abortion, this bill also contains an affirmative statement of reproductive rights, to make clear that in New York all individuals have the right to use or refuse contraceptives. The bill also repeals Education Law § 6811 (8) because the provision was expressly found to be unconstitutional, as applied to non-prescription contraceptives, by the Supreme Court in Carey v. Population Services International, 431 U.S. 678(1977).

Fiscal implications

This bill is anticipated to have no fiscal implications.

Effective date

This act shall take effect on the thirtieth day after it shall have become a law.