 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          4777
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 3, 2017
                                       ___________
 
        Introduced by M. of A. DiPIETRO -- read once and referred to the Commit-
          tee on Health
 
        AN  ACT to amend the penal law and the public health law, in relation to
          the regulation of abortions and prohibiting  dismemberment  abortions;
          and  to  repeal  certain  provisions of the public health law relating
          thereto

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Section  125.00  of  the  penal law is amended to read as
     2  follows:
     3  § 125.00 Homicide defined.
     4    Homicide means conduct which causes the death of a person or an unborn
     5  child with which a female has been pregnant for more than  [twenty-four]
     6  twenty  weeks  under  circumstances constituting murder, manslaughter in
     7  the first degree, manslaughter in the second degree,  criminally  negli-
     8  gent  homicide,  abortion  in  the  first degree or self-abortion in the
     9  first degree.
    10    § 2. Subdivision 3 of section 125.05 of the penal law, as  amended  by
    11  chapter 127 of the laws of 1970, is amended to read as follows:
    12    3. "Justifiable abortional act." An abortional act is justifiable when
    13  committed  upon  a  female with her consent by a duly licensed physician
    14  acting (a) under a reasonable belief that such is necessary to  preserve
    15  her  life  or  prevent  the substantial and irreversible impairment of a
    16  major bodily function, or, (b) within [twenty-four]  twenty  weeks  from
    17  the  commencement of her pregnancy. A pregnant female's commission of an
    18  abortional act upon herself is justifiable when she acts upon the advice
    19  of a duly licensed physician (1) that such act is necessary to  preserve
    20  her  life  or  prevent  the substantial and irreversible impairment of a
    21  major bodily function, or, (2) within [twenty-four]  twenty  weeks  from
    22  the  commencement  of  her  pregnancy.  The submission by a female to an
    23  abortional act is justifiable when she believes that it is being commit-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05966-01-7

        A. 4777                             2
 
     1  ted by a duly licensed physician, acting under a reasonable belief  that
     2  such  act  is  necessary to preserve her life or prevent the substantial
     3  and irreversible impairment of  a  major  bodily  function,  or,  within
     4  [twenty-four] twenty weeks from the commencement of her pregnancy.
     5    § 3. Section 125.05 of the penal law is amended by adding a new subdi-
     6  vision 4 to read as follows:
     7    4.  "Dismemberment  abortion."  The  act of knowingly and purposefully
     8  causing the death of an unborn child by means of dismembering the unborn
     9  child and extracting the unborn child one piece at a time from the uter-
    10  us through the use of clamps, grasping forceps, tongs, scissors or simi-
    11  lar instruments. The term does not include an abortion which  is  exclu-
    12  sively performed through suction curettage.
    13    §  4.  Subdivision 3 of section 125.20 of the penal law, as amended by
    14  chapter 477 of the laws of 1990, is amended to read as follows:
    15    3. He commits upon a female pregnant for more than [twenty-four] twen-
    16  ty weeks an abortional act which causes her death, unless such abortion-
    17  al act is justifiable pursuant to subdivision three of  section  125.05;
    18  or
    19    § 5. Section 125.45 of the penal law is amended to read as follows:
    20  § 125.45 Abortion in the first degree.
    21    A  person  is  guilty  of abortion in the first degree when he commits
    22  upon a female pregnant for more than [twenty-four] twenty weeks an abor-
    23  tional act which causes the miscarriage  of  such  female,  unless  such
    24  abortional  act  is justifiable pursuant to subdivision three of section
    25  125.05.
    26    Abortion in the first degree is a class D felony.
    27    § 6. Section 125.55 of the penal law is amended to read as follows:
    28  § 125.55 Self-abortion in the first degree.
    29    A female is guilty of self-abortion in the first  degree  when,  being
    30  pregnant  for  more  than  [twenty-four]  twenty  weeks,  she commits or
    31  submits to an abortional act upon herself which causes her  miscarriage,
    32  unless  such abortional act is justifiable pursuant to subdivision three
    33  of section 125.05.
    34    Self-abortion in the first degree is a class A misdemeanor.
    35    § 7. Title 5-A of article 41 of the public health law is REPEALED  and
    36  a new title 5-A is added to read as follows:
    37                                   TITLE V-A
    38                           REGULATION OF ABORTIONS
    39  Section 4164. Regulation of abortions.
    40          4164-a. Medical consultation and judgment.
    41          4164-b. Dismemberment abortion ban.
    42    § 4164. Regulation of abortions. Except in the case of a medical emer-
    43  gency  which,  in  the  reasonable  medical  judgment  of  the physician
    44  performing the abortion, prevents compliance with a particular  require-
    45  ment  of  this section, no abortion shall be performed upon a woman when
    46  the gestational age of the unborn child is twenty or more  weeks  unless
    47  each of the following conditions is met:
    48    (a)  The  physician performing the abortion certifies in writing that,
    49  based upon his medical examination of the pregnant woman and his medical
    50  judgment, the abortion is necessary to prevent either the death  of  the
    51  pregnant woman or the substantial and irreversible impairment of a major
    52  bodily function of the woman.
    53    (b)  Such  physician's  judgment with respect to the necessity for the
    54  abortion has been concurred in  by  one  other  licensed  physician  who
    55  certifies  in  writing  that,  based  upon  his or her separate personal
    56  medical examination of the pregnant woman and his or her  medical  judg-

        A. 4777                             3
 
     1  ment, the abortion is necessary to prevent either the death of the preg-
     2  nant  woman  or  the  substantial and irreversible impairment of a major
     3  bodily function of the woman.
     4    (c) The abortion is performed in a hospital.
     5    (d)  The physician terminates the pregnancy in a manner which provides
     6  the best opportunity for the unborn child to survive, unless the  physi-
     7  cian  determines, in his or her good faith medical judgment, that termi-
     8  nation of the pregnancy in that manner  poses  a  significantly  greater
     9  risk  either  of  the death of the pregnant woman or the substantial and
    10  irreversible impairment of a major bodily function  of  the  woman  than
    11  would other available methods.
    12    (e) The physician performing the abortion arranges for the attendance,
    13  in  the  same room in which the abortion is to be completed, of a second
    14  physician who shall take control of the child immediately after complete
    15  extraction from the mother and shall provide immediate medical care  for
    16  the child, taking all reasonable steps necessary to preserve the child's
    17  life and health.
    18    2.  It  shall  not  be  a violation of this section if the abortion is
    19  performed by a physician and that physician reasonably  believes,  after
    20  making  a  determination of the gestational age of the unborn child that
    21  the unborn child is less than twenty weeks gestational age.
    22    § 4164-a. Medical consultation and judgment. Except in a medical emer-
    23  gency where there is insufficient time before the abortion is performed,
    24  the woman upon whom the  abortion  is  to  be  performed  shall  have  a
    25  private, in-person medical consultation either with the physician who is
    26  to  perform  the abortion or with the referring physician. The consulta-
    27  tion will be in a place, at a time and of a duration  reasonably  suffi-
    28  cient  to enable the physician to determine whether, based on his or her
    29  best clinical judgment, the abortion is necessary.
    30    § 4164-b. Dismemberment abortion ban.
    31    1. An individual may not perform or attempt to perform a dismemberment
    32  abortion upon another individual when the gestational age of the  unborn
    33  child is twenty or more weeks unless all of the following apply:
    34    (a)  The individual performing or attempting to perform the dismember-
    35  ment abortion is a physician and certifies in writing that,  based  upon
    36  the physician's medical examination of the pregnant woman and the physi-
    37  cian's medical judgment, the abortion is necessary to prevent either the
    38  death  of the pregnant woman or the substantial and irreversible impair-
    39  ment of a major bodily function of the woman.
    40    (b) Such physician's judgment with respect to the  necessity  for  the
    41  abortion  has  been  concurred  in  by  one other licensed physician who
    42  certifies in writing that, based  upon  his  or  her  separate  personal
    43  medical  examination  of the pregnant woman and his or her medical judg-
    44  ment, the abortion is necessary to prevent either the death of the preg-
    45  nant woman or the substantial and irreversible  impairment  of  a  major
    46  bodily function of the woman.
    47    (c) The abortion is performed in a hospital.
    48    (d)  The physician terminates the pregnancy in a manner which provides
    49  the best opportunity for the unborn child to survive, unless the  physi-
    50  cian  determines, in his or her good faith medical judgment, that termi-
    51  nation of the pregnancy in that manner  poses  a  significantly  greater
    52  risk  either  of  the death of the pregnant woman or the substantial and
    53  irreversible impairment of a major bodily function  of  the  woman  than
    54  would other available methods.
    55    (e) The physician performing the abortion arranges for the attendance,
    56  in  the  same room in which the abortion is to be completed, of a second

        A. 4777                             4
 
     1  physician who shall take control of the child immediately after complete
     2  extraction from the mother and shall provide immediate medical care  for
     3  the child, taking all reasonable steps necessary to preserve the child's
     4  life and health.
     5    2.  Prohibition before twenty weeks of gestational age.  An individual
     6  may not perform or attempt to  perform  a  dismemberment  abortion  upon
     7  another  individual when the gestational age of the unborn child is less
     8  than twenty weeks unless both of the following apply:
     9    (a) The individual performing or attempting to perform the  dismember-
    10  ment  abortion  is a physician and certifies in writing that, based upon
    11  the physician's medical examination of the pregnant woman and the physi-
    12  cian's medical judgment, the abortion is necessary to prevent either the
    13  death of the pregnant woman or the substantial and irreversible  impair-
    14  ment of a major bodily function of the woman.
    15    (b)  The  physician's  judgment  with respect to the necessity for the
    16  abortion has been concurred in  by  one  other  licensed  physician  who
    17  certifies  in  writing  that,  based  upon  his or her separate personal
    18  medical examination of the pregnant woman and his or her  medical  judg-
    19  ment, the abortion is necessary to prevent either the death of the preg-
    20  nant  woman  or  the  substantial and irreversible impairment of a major
    21  bodily function of the woman.
    22    3. Liability. The  following  individuals  shall  not  be  liable  for
    23  performing or attempting to perform a dismemberment abortion:
    24    (a)  The  female  patient  upon  whom  the  dismemberment  abortion is
    25  performed or attempted to be performed.
    26    (b) A nurse, technician, secretary or receptionist who is not a physi-
    27  cian but is acting at the direction of a physician.
    28    (c) A pharmacist or other  individual  who  fills  a  prescription  or
    29  provides  instruments  or  materials used in a dismemberment abortion at
    30  the direction of or to a physician.
    31    4. Penalty. Any individual who violates this section is  guilty  of  a
    32  class D felony.
    33    §  8.  The public health law is amended by adding a new section 4160-b
    34  to read as follows:
    35    § 4160-b. Abortion reporting. For the purpose of promotion of maternal
    36  health and life by adding to the sum of medical and public health  know-
    37  ledge  through  the  compilation  of  relevant  data, and to promote the
    38  state's interest in protection of the unborn child,  a  report  of  each
    39  abortion  performed  shall be made to the department on forms prescribed
    40  by it. The report forms shall not identify  the  individual  patient  by
    41  name and shall include the following information:
    42    1.  identification  of  the  physician who performed the abortion, the
    43  concurring physician,  the  second  physician  as  required  by  section
    44  forty-one  hundred sixty-four of this article and the facility where the
    45  abortion was  performed  and  of  the  referring  physician,  agency  or
    46  service, if any;
    47    2. the county and state in which the woman resides;
    48    3. the woman's age;
    49    4. the number of prior pregnancies and prior abortions of the woman;
    50    5.  the  gestational  age  of  the  unborn  child  at  the time of the
    51  abortion;
    52    6. the type of procedure performed or prescribed and the date  of  the
    53  abortion;
    54    7. pre-existing medical conditions of the woman which would complicate
    55  pregnancy,  if  any,  and,  if  known,  any  medical  complication which
    56  resulted from the abortion itself;

        A. 4777                             5
 
     1    8. the basis for the medical judgment of the physician  who  performed
     2  the abortion that the abortion was necessary to prevent either the death
     3  of  the pregnant woman or the substantial and irreversible impairment of
     4  a major bodily function of the woman;
     5    9. the weight of the aborted child; and
     6    10.  the  basis  for  any  medical  judgment  that a medical emergency
     7  existed which excused the physician from compliance with  any  provision
     8  of this section.
     9    § 9. This act shall take effect immediately.
Relates to the regulation of abortions; repealer

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