STATE OF NEW YORK ________________________________________________________________________ 5067 2017-2018 Regular Sessions IN SENATE March 6, 2017 ___________ Introduced by Sen. DIAZ -- read twice and ordered printed, and when printed to be committed to the Committee on Health AN ACT to amend the public health law, in relation to enacting the woman's right to know act; to repeal title 3 of article 25 of such law relating to the control of midwifery; and providing for the repeal of certain provisions upon expiration thereof The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Title III of article 25 of the public health law is 2 REPEALED and a new title III is added to read as follows: 3 TITLE III 4 WOMAN'S RIGHT TO KNOW ACT 5 Section 2560. Short title. 6 2560-a. Legislative findings and purposes. 7 2560-b. Definitions. 8 2560-c. Informed consent requirement. 9 2560-d. Publication of materials. 10 2560-e. Ultrasound. 11 2560-f. Internet website. 12 2560-g. Abortion provider website. 13 2560-h. Emergency. 14 2560-i. Reporting requirements. 15 2560-j. Criminal penalties. 16 2560-k. Civil penalties. 17 2560-l. Limitation on civil liability. 18 2560-m. Severability. 19 2560-n. Construction. 20 § 2560. Short title. This title shall be known and may be cited as the 21 "woman's right to know act". 22 § 2560-a. Legislative findings and purposes. 1. The legislature finds 23 that: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07177-01-7

S. 5067 2 1 (a) it is essential to the psychological and physical well-being of a 2 woman considering an abortion that she receive complete and accurate 3 information on her alternatives. 4 (b) the knowledgeable exercise of a woman's decision to have an 5 abortion depends on the extent to which the woman receives sufficient 6 information to make an informed choice between two alternatives: giving 7 birth or having an abortion. 8 (c) over eighty percent of all abortions are performed in clinics 9 devoted solely to providing abortions and family planning services. Most 10 women who seek abortions at these facilities do not have any relation- 11 ship with the physician who performs the abortion, before or after the 12 procedure. They do not return to the facility for post-surgical care. In 13 most instances, the woman's only actual contact with the physician 14 occurs simultaneously with the abortion procedure, with little opportu- 15 nity to receive counseling concerning her decision. 16 (d) the decision to abort is an important and often a stressful one, 17 and it is desirable and imperative that it be made with full knowledge 18 of its nature and consequences. 19 (e) the medical, emotional and psychological consequences of an 20 abortion are serious and can be lasting. 21 (f) abortion facilities or providers offer only limited and/or imper- 22 sonal counseling opportunities. 23 (g) many abortion facilities or providers hire untrained and unprofes- 24 sional "counselors" whose primary goal is to sell abortion services. 25 2. Based on the findings in subdivision one of this section, it is the 26 purpose of this title to: 27 (a) ensure that every woman considering an abortion receive complete 28 information on her alternatives and that every woman submitting to an 29 abortion do so only after giving her voluntary and informed consent to 30 the abortion procedure. 31 (b) protect unborn children from a woman's uninformed decision to have 32 an abortion. 33 (c) reduce the risk that a woman may elect an abortion, only to 34 discover later, with devastating psychological consequences, that her 35 decision was not fully informed. 36 § 2560-b. Definitions. As used in this title: 37 1. "Abortion" means the use or prescription of any instrument, medi- 38 cine, drug or any other substance or device with the intent to terminate 39 the pregnancy of a woman known by the person so using or prescribing to 40 be pregnant. Such use or prescription is not an abortion if done with 41 the intent to (a) save the life or preserve the health of an unborn 42 child, (b) remove a dead unborn child, or (c) deliver an unborn child 43 prematurely in order to preserve the health of both the pregnant woman 44 and her unborn child. 45 2. "Conception" means the fusion of a human spermatozoon with a human 46 ovum. 47 3. "Gestational age" means the time that has elapsed since the first 48 day of the woman's last menstrual period. 49 4. "Medical emergency" means that condition which, on the basis of the 50 physician's good faith clinical judgment, so complicates the medical 51 condition of a pregnant woman as to necessitate the immediate abortion 52 of her pregnancy to avert her death or for which a delay will create 53 serious risk of substantial and irreversible impairment of a major bodi- 54 ly function. 55 5. "Physician" means any person licensed to practice medicine in this 56 state.

S. 5067 3 1 6. "Pregnant" or "pregnancy" means that female reproductive condition 2 of having an unborn child in the woman's body. 3 7. "Qualified person" means an agent of the physician who is a 4 psychologist, licensed social worker, licensed professional counselor, 5 registered professional nurse or physician. 6 8. "Unborn child" means the offspring of human beings from conception 7 until birth. 8 9. "Viability" and "viable" means that stage of fetal development 9 when the life of the unborn child may be continued indefinitely outside 10 the womb by natural or artificial life-supportive systems. 11 10. "Woman" means any female person. 12 § 2560-c. Informed consent requirement. No abortion shall be performed 13 or induced without the voluntary and informed consent of the woman upon 14 whom the abortion is to be performed or induced. Except in the case of 15 a medical emergency, consent to an abortion is voluntary and informed if 16 and only if: 17 1. At least twenty-four hours before the abortion, the physician who 18 is to perform the abortion or the referring physician has informed the 19 woman, orally and in person, of: 20 (a) the name of the physician who will perform the abortion; 21 (b) the nature of the proposed abortion method and of those risks and 22 alternatives to the method that a reasonable patient would consider 23 material to the decision of whether or not to undergo the abortion; 24 (c) the probable gestational age of the unborn child at the time the 25 abortion is to be performed. And if the unborn child is viable or has 26 reached the gestational age of twenty-two weeks, that (i) the unborn 27 child may be able to survive outside the womb; (ii) the woman has the 28 right to request the physician to use the form of treatment that is most 29 likely to preserve the life of the unborn child; and (iii) if the unborn 30 child is born alive, the attending physician has the legal obligation to 31 take all reasonable steps necessary to maintain the life and health of 32 the child; 33 (d) the probable anatomical and physiological characteristics of the 34 unborn child at the time the abortion is to be performed; 35 (e) the medical risks associated with carrying her child to term; 36 (f) the medical and psychological risks associated with abortion, 37 including, but not limited to, the medical evidence regarding the 38 increased risk of breast cancer associated with the proposed abortion; 39 and 40 (g) any need for anti-Rh immune globulin therapy, if she is Rh nega- 41 tive, the likely consequences of refusing such therapy and the cost of 42 the therapy. 43 2. At least twenty-four hours before the abortion, the physician who 44 is to perform the abortion, the referring physician or a qualified 45 person has informed the woman, orally and in person, that: 46 (a) the printed materials in section twenty-five hundred sixty-d of 47 this title describe the unborn child and list agencies which offer 48 alternatives to abortion; 49 (b) the father of the unborn child is obligated to assist in the 50 support of her child, even in instances where he has offered to pay for 51 the abortion. In the case of rape, this information may be omitted; 52 (c) the state encourages her to view the ultrasound image of her 53 unborn child, as described in section twenty-five hundred sixty-e of 54 this title, before she decides to have an abortion. If the woman does 55 not have private health insurance coverage for the ultrasound service,

S. 5067 4 1 she shall be presumptively eligible for medical assistance coverage for 2 the ultrasound service; and 3 (d) she is free to withhold or withdraw her consent to the abortion at 4 any time before or during the abortion without affecting her right to 5 future care or treatment, and without the loss of any state or federal- 6 ly-funded benefits to which she might otherwise be entitled. 7 3. The information in subdivisions one and two of this section is 8 provided to the woman individually and in a private room to protect her 9 privacy and maintain the confidentiality of her decision, to ensure that 10 the information focuses on her individual circumstances and that she has 11 an adequate opportunity to ask a question. 12 4. At least twenty-four hours before the abortion, the woman is given 13 a copy of the printed materials described in section twenty-five hundred 14 sixty-d of this title. If the woman is unable to read the materials, 15 they shall be read to her. If the woman asks questions concerning any of 16 the information or materials, answers shall be provided to her in her 17 own language. 18 5. The woman certifies in writing, prior to the abortion, that the 19 information required to be provided under subdivisions one, two and four 20 of this section has been provided. 21 6. Prior to the performance of the abortion, the physician who is to 22 perform the abortion or his or her agent receives a copy of the written 23 certification prescribed by subdivision five of this section. 24 7. The woman is not required to pay any amount for the abortion proce- 25 dure until the twenty-four hour waiting period has expired. 26 § 2560-d. Publication of materials. 1. The department shall cause to 27 be published in English and Spanish, and shall update on an annual 28 basis, the following easily comprehensible printed materials: 29 (a) geographically indexed materials designed to inform the woman of 30 public and private agencies and services available to assist a woman 31 through pregnancy, upon childbirth and while her child is dependent, 32 including but not limited to, adoption agencies. The materials shall 33 include a comprehensive list of the agencies, a description of the 34 services they offer, and the telephone numbers and addresses of the 35 agencies; and inform the woman about available medical assistance bene- 36 fits for prenatal care, childbirth and neonatal care, and about the 37 support obligations of the father of a child who is born alive. The 38 department shall ensure that the materials described in this section are 39 comprehensive and do not directly or indirectly promote, exclude or 40 discourage the use of any agency or service described in this section. 41 The materials shall also contain a toll-free, twenty-four hour a day 42 telephone number which may be called to obtain, orally, such a list and 43 description of agencies in the locality of the caller and of the 44 services they offer. The materials shall state that it is unlawful for 45 any individual to coerce a woman to undergo an abortion, that any physi- 46 cian who performs an abortion upon a woman without her informed consent 47 may be liable to her for damages in a civil action at law and that the 48 law permits adoptive parents to pay costs of prenatal care, childbirth 49 and neonatal care. The materials shall include the following statement: 50 "There are many public and private agencies willing and able to help 51 you to carry your child to term, and to assist you and your child after 52 your child is born, whether you choose to keep your child or to place 53 her or him for adoption. The state of New York strongly urges you to 54 contact them before making a final decision about abortion. The law 55 requires that your physician or his or her agent give you the opportu- 56 nity to call agencies like these before you undergo an abortion."

S. 5067 5 1 (b) materials that inform the pregnant woman of the probable anatom- 2 ical and physiological characteristics of the unborn child at two-week 3 gestational increments from fertilization to full term, including 4 pictures or drawings representing the development of unborn children at 5 two-week gestational increments, and any relevant information on the 6 possibility of the unborn child's survival; provided that any such 7 pictures or drawings shall contain the dimensions of the unborn child 8 and must be realistic. The materials shall be objective, nonjudgmental 9 and designed to convey only accurate scientific information about the 10 unborn child at the various gestational ages. The material shall also 11 contain objective information describing the methods of abortion proce- 12 dures commonly employed, the medical risks commonly associated with each 13 such procedure and the medical risks associated with carrying a child to 14 term. 15 2. The materials shall be printed in a typeface large enough to be 16 clearly legible. 17 3. The materials required under this section shall be available at no 18 cost from the department upon request and in appropriate number to any 19 person, facility or hospital. 20 § 2560-e. Ultrasound. 1. Prior to a woman giving informed consent to 21 having any part of an abortion performed or induced, and prior to the 22 administration of any anesthesia or medication in preparation for the 23 abortion on the woman the physician who is to perform the abortion or a 24 qualified technician shall: 25 (a) perform an obstetric ultrasound on the pregnant woman, using 26 whichever method the physician and patient agree is best under the 27 circumstance; 28 (b) provide a simultaneous verbal explanation of what the ultrasound 29 is depicting, which shall include the presence and location of the 30 unborn child within the uterus and the number of unborn children 31 depicted. If the ultrasound image indicates that fetal demise has 32 occurred, a woman shall be informed of that fact; 33 (c) display the ultrasound images so that the pregnant woman may view 34 them; 35 (d) provide a medical description of the ultrasound images, which 36 shall include the dimensions of the embryo or fetus and the presence of 37 external members and internal organs, if present and viewable; 38 (e) obtain a written certification from the woman, prior to the 39 abortion, that the requirements of subdivision two of this section have 40 been complied with; and 41 (f) retain a copy of the written certification prescribed by paragraph 42 (e) of this subdivision. The certification shall be placed in the 43 medical file of the woman and shall be kept by the abortion provider for 44 a period of not less than seven years. If the woman is a minor, then the 45 certification shall be placed in the medical file of the minor and kept 46 for at least seven years or for five years after the minor reaches the 47 age of majority, whichever is greater. 48 2. Nothing in this section shall be construed to prevent a pregnant 49 woman from averting her eyes from the ultrasound images required to be 50 provided to and reviewed with her. Neither the physician nor the preg- 51 nant woman shall be subject to any penalty if she refuses to look at the 52 presented ultrasound images. 53 3. Prior to a woman giving informed consent to having any part of an 54 abortion performed or induced, if the pregnancy is at least eight weeks 55 after fertilization (ten weeks from the first day of the last menstrual 56 period), the abortion provider who is to perform or induce the abortion,

S. 5067 6 1 a certified technician, or another agent of the abortion provider shall, 2 using a hand-held doppler fetal monitor, make the embryonic or fetal 3 heartbeat of the unborn child audible for the pregnant woman to hear. 4 4. A physician, a certified technician, or another agent of the physi- 5 cian shall not be in violation of subdivision three of this section if: 6 (a) the physician, certified technician, or agent has attempted, 7 consistent with standard medical practice, to make the embryonic or 8 fetal heartbeat of the unborn child audible for the pregnant woman to 9 hear using a hand-held doppler fetal monitor; 10 (b) that attempt does not result in the heartbeat being made audible; 11 and 12 (c) the physician has offered to attempt to make the heartbeat audible 13 at a subsequent date. 14 5. Nothing in this section shall be construed to prevent the pregnant 15 woman from not listening to the sounds detected by the hand-held doppler 16 fetal monitor, pursuant to subdivision three of this section. 17 § 2560-f. Internet website. 1. The department shall develop and main- 18 tain a stable internet website to provide the information described 19 under section twenty-five hundred sixty-d of this title. No information 20 regarding who uses the website shall be collected or maintained. The 21 department shall monitor the website on a daily basis to prevent and 22 correct tampering and shall immediately notify abortion providers of any 23 change in the location of the material on its website. 24 2. The website shall: 25 (a) use enhanced, user-friendly search capabilities to ensure that the 26 information described in section twenty-five hundred sixty-d of this 27 title is easily accessible, and must use searchable keywords and phras- 28 es, specifically to ensure that entering the term "abortion" yields the 29 materials from section twenty-five hundred sixty-d of this title, 30 regardless of how such materials are labeled; 31 (b) ensure that the material from section twenty-five hundred sixty-d 32 of this title is printable; 33 (c) give clear prominent instructions on how to receive the informa- 34 tion in printed form; and 35 (d) be accessible to the public without requiring registration or use 36 of a user name, a password, or another user identification. 37 § 2560-g. Abortion provider website. If an abortion provider has a 38 website, the abortion provider's internet website home page, by use of 39 at least two direct links, one of which is posted prominently, shall 40 link to the department's informed consent materials. 41 § 2560-h. Emergency. Where a medical emergency compels the performance 42 of an abortion, the physician shall inform the woman, before the 43 abortion if possible, of the medical indications supporting his or her 44 judgment that an abortion is necessary to avert her death or to avert 45 substantial and irreversible impairment of a major bodily function. 46 § 2560-i. Reporting requirements. 1. Within ninety days after this 47 act is enacted, the department shall prepare a reporting form for physi- 48 cians containing a reprint of this act and listing: 49 (a) the number of women to whom the physician provided the information 50 described in section twenty-five hundred sixty-c of this title; of that 51 number, the number provided by telephone and the number provided in 52 person; and of each of those numbers, the number provided in the capaci- 53 ty of a referring physician and the number provided in the capacity of a 54 physician who is to perform the abortion; 55 (b) the number of women to whom the physician or an agent of the 56 physician provided the information described in section twenty-five

S. 5067 7 1 hundred sixty-c of this title; of that number, the number provided by 2 telephone and the number provided in person; of each of those numbers, 3 the number provided in the capacity of a referring physician and the 4 number provided in the capacity of a physician who is to perform the 5 abortion; and of each of those numbers, the number provided by the 6 physician and the number provided by an agent of the physician; 7 (c) the number of women who availed themselves of the opportunity to 8 obtain a copy of the printed information described in section twenty- 9 five hundred sixty-d of this title other than on the website, and the 10 number who did not; and of each of those numbers, the number who, to the 11 best of the reporting physician's information and belief, went on to 12 obtain the abortion; and 13 (d) the number of abortions performed by the physician in which infor- 14 mation otherwise required to be provided at least twenty-four hours 15 before the abortion was not so provided because an immediate abortion 16 was necessary to avert the woman's death, and the number of abortions in 17 which such information was not so provided because a delay would create 18 serious risk of substantial and irreversible impairment of a major bodi- 19 ly function. 20 2. The department shall ensure that copies of the reporting forms 21 described in subdivision (a) of this section are provided: 22 (a) within one hundred two days after the effective date of the chap- 23 ter of the laws of two thousand seventeen which enacted this title, to 24 all physicians licensed to practice in this state; 25 (b) to each physician who subsequently becomes newly licensed to prac- 26 tice in this state, at the same time as official notification to that 27 physician that the physician is so licensed; and 28 (c) by December first of each year, other than the calendar year in 29 which forms are distributed in accordance with paragraph (a) of this 30 subdivision, to all physicians licensed to practice in this state. 31 3. By February twenty-eighth of each year following a calendar year in 32 any part of which this act was in effect, each physician who provided, 33 or whose agent provided, information to one or more women in accordance 34 with section twenty-five hundred sixty-c of this title during the previ- 35 ous calendar year shall submit to the department a copy of the form 36 described in subdivision one of this section, with the requested data 37 entered accurately and completely. 38 4. Reports that are not submitted by the end of a grace period of 39 thirty days following the due date shall be subject to a late fee of 40 five hundred dollars for each additional thirty day period or portion of 41 a thirty day period they are overdue. Any physician required to report 42 in accordance with this section who has not submitted a report, or has 43 submitted only an incomplete report, more than one year following the 44 due date, may, in an action brought by the department, be directed by a 45 court of competent jurisdiction to submit a complete report within a 46 period stated by court order or be subject to sanctions for civil 47 contempt. 48 5. By June thirtieth of each year the department shall issue a public 49 report providing statistics for the previous calendar year compiled from 50 all of the reports covering that year submitted in accordance with this 51 section for each of the items listed in subdivision one of this section. 52 Each such report shall also provide the statistics for all previous 53 calendar years, adjusted to reflect any additional information from late 54 or corrected reports. The department shall take care to ensure that none 55 of the information included in the public reports could reasonably lead

S. 5067 8 1 to the identification of any individual provided information in accord- 2 ance with subdivision one of this section. 3 6. The department may by regulation alter the dates established by 4 this section or consolidate the forms or reports described in this 5 section with other forms or reports to achieve administrative conven- 6 ience or fiscal savings or to reduce the burden of reporting require- 7 ments, so long as reporting forms are sent to all licensed physicians in 8 the state at least once every year and the report described in subdivi- 9 sion five of this section, is issued at least once every year. 10 § 2560-j. Criminal penalties. Any person who intentionally, knowingly 11 or recklessly violates the provisions of this title shall be guilty of a 12 felony. Any physician who knowingly or recklessly submits a false report 13 under section twenty-five hundred sixty-i of this title shall be guilty 14 of a misdemeanor. No penalty may be assessed against the woman upon whom 15 the abortion is performed or attempted to be performed. No penalty or 16 civil liability may be assessed for failure to comply with section twen- 17 ty-five hundred sixty-c of this title or that portion of section twen- 18 ty-five hundred sixty-c of this title requiring a written certification 19 that the woman has been informed of her opportunity to review the infor- 20 mation referred to in such section may be assessed unless the department 21 has made the printed materials available at the time the physician or 22 the physician's agent is required to inform the woman of her right to 23 view them. 24 § 2560-k. Civil penalties. In addition to any remedies available under 25 the common or statutory law of this state, failure to comply with the 26 requirements of this title shall: 27 1. Provide a basis for a civil malpractice action. Any intentional 28 violation of this title shall be admissible in a civil suit as prima 29 facie evidence of a failure to obtain an informed consent. 30 2. Provide a basis for professional disciplinary action pursuant to 31 title two-A of article two of this chapter. 32 3. Provide a basis for recovery by the woman in a wrongful death 33 action, whether or not the unborn child was viable at the time the 34 abortion was performed or was born alive. 35 § 2560-l. Limitation on civil liability. Any physician who complies 36 with the provisions of this title shall not be held civilly liable to 37 his or her patient for failure to obtain informed consent to the 38 abortion. 39 § 2560-m. Severability. The provisions of this title are declared to 40 be severable, and if any provision, word, phrase or clause of this title 41 or the application thereof to any person shall be held invalid, such 42 invalidity shall not affect the validity of the remaining portions of 43 this title. 44 § 2560-n. Construction. 1. Nothing in this title shall be construed as 45 creating or recognizing a right to abortion. 46 2. It is not the intention of this title to make lawful an abortion 47 that is currently unlawful. 48 § 2. 1. The department of health shall cause to be published in 49 English and Spanish within 102 days after the effective date of this 50 act, and shall update on an annual basis, the following easily compre- 51 hensible printed materials: 52 (a) Geographically indexed materials designed to inform the woman of 53 public and private agencies and services available to assist a woman 54 through pregnancy, upon childbirth and while her child is dependent, 55 including but not limited to, adoption agencies. The materials shall 56 include a comprehensive list of the agencies, a description of the

S. 5067 9 1 services they offer, and the telephone numbers and addresses of the 2 agencies; and inform the woman about available medical assistance bene- 3 fits for prenatal care, childbirth, and neonatal care and about the 4 support obligations of the father of a child who is born alive. The 5 department of health shall ensure that the materials described in this 6 section are comprehensive and do not directly or indirectly promote, 7 exclude, or discourage the use of any agency or service described in 8 this section. The materials shall also contain a toll-free twenty-four- 9 hour a day telephone number which may be called to obtain, orally, such 10 a list and description of agencies in the locality of the caller and of 11 the services they offer. The materials shall state that it is unlawful 12 for any individual to coerce a woman to undergo an abortion, that any 13 physician who performs an abortion upon a woman without her informed 14 consent may be liable to her for damages in a civil action at law and 15 that the law permits adoptive parents to pay costs of prenatal care, 16 childbirth and neonatal care. The materials shall include the following 17 statement: 18 "There are many public and private agencies willing and able to help 19 you to carry your child to term, and to assist you and your child after 20 your child is born, whether you choose to keep your child or to place 21 her or him for adoption. The state of New York strongly urges you to 22 contact them before making a final decision about abortion. The law 23 requires that your physician or his or her agent give you the opportu- 24 nity to call agencies like these before you undergo an abortion." 25 (b) Materials that inform the pregnant woman of the probable anatom- 26 ical and physiological characteristics of the unborn child at two-week 27 gestational increments from fertilization to full term, including 28 pictures or drawings representing the development of unborn children at 29 two-week gestational increments, and any relevant information on the 30 possibility of the unborn child's survival; provided that any such 31 pictures or drawings must contain the dimensions of the unborn child and 32 must be realistic. The materials shall be objective, nonjudgmental and 33 designed to convey only accurate scientific information about the unborn 34 child at the various gestational ages. The material shall also contain 35 objective information describing the methods of abortion procedures 36 commonly employed, the medical risks commonly associated with each such 37 procedure, and the medical risks associated with carrying a child to 38 term. 39 2. The materials shall be printed in a typeface large enough to be 40 clearly legible. 41 3. The materials required under this section shall be available at no 42 cost from the department of health upon request and in appropriate 43 numbers to any person, facility or hospital. 44 § 3. This act shall take effect immediately, provided that section one 45 of this act shall take effect on the one hundred second day after this 46 act shall have become a law, when upon such date section two of this act 47 shall expire and be deemed repealed.

Enacts the woman's right to know act; repealer

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