Require Fetal Heartbeat Test

Section 1. The legislature declares that it finds, according to contemporary medical research, all of the following:

1. As many as thirty percent of natural pregnancies end in spontaneous miscarriage.

2. Less than five percent of all natural pregnancies end in spontaneous miscarriage after detection of fetal cardiac activity.

3. Over ninety percent of in vitro pregnancies survive the first trimester if cardiac activity is detected in the gestational sac.

4. Nearly ninety percent of in vitro pregnancies do not survive the first trimester where cardiac activity is not detected in the gestational sac.

5. Fetal heartbeat, therefore, has become a key medical predictor that an unborn human individual will reach live birth.

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD05875-01-7

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6. Cardiac activity begins at a biologically identifiable moment in time, normally when the fetal heart is formed in the gestational sac.

7. The state of New York has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of an unborn human individual who may be born.

8. In order to make an informed choice about whether to continue her pregnancy, the pregnant woman has a legitimate interest in knowing the likelihood of the fetus surviving to full-term birth based upon the presence of cardiac activity.

§ 2. Article 41 of the public health law is amended by adding a new title 5-B to read as follows:

TITLE V-B

ABORTION Section 4164-a. Definitions.

4164-b. Application.

4164-c. Detectable heartbeat.

4164-d. Preliminary informed consent.

4164-e. Informed consent after detection of a heartbeat.

4164-f. Performance of abortion.

4164-g. Medical emergency.

4164-h. Reporting.

4164-i. Duties of the department.

4164-j. Culpability of the physician.

4164-k. Culpability of the pregnant woman.

4164-l. Civil action.

§ 4164-a. Definitions. As used in this title:

1. "Conception" means fertilization.

2. "Contraceptive" means a drug, device, or chemical that prevents conception.

3. "DNA" means deoxyribonucleic acid.

4. "Fetal heartbeat" means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.

5. "Fetus" means the human offspring developing during pregnancy from the moment of conception and includes the embryonic stage of development.

6. "Gestational age" means the age of an unborn human individual as calculated from the first day of the last menstrual period of a pregnant woman.

7. "Gestational sac" means the structure that comprises the extraembryonic membranes that envelop the fetus and that is typically visible by ultrasound after the fourth week of pregnancy.

8. "Intrauterine pregnancy" means a pregnancy in which the fetus is attached to the placenta within the uterus of the pregnant woman.

9. "Medical emergency" means a condition of a pregnant woman that, in the reasonable judgment of the physician who is attending the woman, creates an immediate threat of serious risk to the life or physical health of the woman from the continuation of the pregnancy necessitating the immediate performance or inducement of an abortion.

10. "Medical necessity" means a medical condition of a pregnant woman that, in the reasonable judgment of the physician who is attending the woman, so complicates the pregnancy that it necessitates the immediate performance or inducement of an abortion.

11. "Physician" means an individual licensed under article one hundred thirty-one of the education law to practice medicine and surgery or osteopathic medicine and surgery.

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12. "Pregnancy" means the human female reproductive condition that begins with fertilization, when the woman is carrying the developing human offspring, and that is calculated from the first day of the last menstrual period of the woman.

13. "Probable gestational age of the embryo or fetus" means the gestational age that, in the judgment of a physician, is, with reasonable probability, the gestational age of the embryo or fetus at the time that the physician informs a pregnant woman pursuant to section forty-one hundred sixty-four-d of this title.

14. "Spontaneous miscarriage" means the natural or accidental termination of a pregnancy and the expulsion of the fetus, typically caused by genetic defects in the fetus or physical abnormalities in the pregnant woman.

15. "Standard medical practice" means the degree of skill, care, and diligence that a physician of the same medical specialty would employ in like circumstances. As applied to the method used to determine the presence of a fetal heartbeat for purposes of section forty-one hundred sixty-four-c of this title, "standard medical practice" includes employing the appropriate means of detection depending on the estimated gestational age of the fetus and the condition of the woman and her pregnancy.

16. "Unborn human individual" means an individual organism of the species homo sapiens from fertilization until live birth.

§ 4164-b. Application. 1. The provisions of this title apply only to abortions involving intrauterine pregnancies.

2. The provisions of this title shall not apply to abortions in cases in which the method used to test for the presence of a fetal heartbeat in compliance with subdivision one of section forty-one hundred sixtyfour-c of this title does not reveal a fetal heartbeat.

3. Nothing in this title shall prohibit the sale, use, prescription, or administration of a drug, device, or chemical that is designed for contraceptive purposes.

§ 4164-c. Detectable heartbeat. 1. Any person who intends to perform or induce an abortion on a pregnant woman shall determine whether there is a detectable fetal heartbeat of the unborn human individual the pregnant woman is carrying. The method of determining the presence of a fetal heartbeat shall be consistent with the person's good faith understanding of standard medical practice and in accordance with all applicable rules promulgated by the commissioner. The person who determines the presence or absence of a fetal heartbeat shall record in the pregnant woman's medical record the estimated gestational age of the unborn human individual, the method used to test for a fetal heartbeat, the date and time of the test, and the results of the test.

2. Except as provided in section forty-one hundred sixty-four-g of this title, no person shall knowingly and purposefully perform or induce an abortion on a pregnant woman before:

(a) determining in accordance with subdivision one of this section whether the unborn human individual the pregnant woman is carrying has a detectable heartbeat; and

(b) complying with the notification and consent requirements of section forty-one hundred sixty-four-d, and if applicable, section forty-one hundred sixty-four-e of this title.

§ 4164-d. Preliminary informed consent. 1. Except when there is a medical emergency or medical necessity as provided in section forty-one hundred sixty-four-g of this title, an abortion shall be performed or induced only if all of the following conditions are satisfied:

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(a) At least twenty-four hours prior to the performance or inducement of the abortion, a physician meets with the pregnant woman in person in an individual, private setting and gives her an adequate opportunity to ask questions about the abortion that will be performed or induced. At this meeting, the physician shall inform the pregnant woman, verbally or, if she is hearing impaired, by other means of communication, of all of the following:

(1) the nature and purpose of the particular abortion procedure to be used and the medical risks associated with that procedure;

(2) the probable gestational age of the embryo or fetus; and

(3) the medical risks associated with the pregnant woman carrying the pregnancy to term.

(b) The meeting described in paragraph (a) of this subdivision need not occur at the facility where the abortion is to be performed or induced, and the physician involved in the meeting need not be affiliated with that facility or with the physician who is scheduled to perform or induce the abortion. The physician involved in the meeting shall provide to the pregnant woman the physician's name and contact information.

(c) At least twenty-four hours prior to the performance or inducement of the abortion, the physician who is to perform or induce the abortion or the physician's agent does each of the following in person, by telephone, by certified mail, return receipt requested, or by regular mail evidenced by a certificate of mailing:

(1) inform the pregnant woman of the name of the physician who is scheduled to perform or induce the abortion;

(2) give the pregnant woman copies of the published materials described in section forty-one hundred sixty-four-i of this title; and

(3) inform the pregnant woman that the materials given pursuant to section forty-one hundred sixty-four-i of this title are published by the state and that they describe the embryo or fetus and list agencies that offer alternatives to abortion. The pregnant woman may choose to examine or not to examine the materials. A physician or an agent of a physician may choose to be disassociated from the materials and may choose to comment or not comment on the materials.

(d) If it has been determined that the unborn human individual the pregnant woman is carrying has a detectable heartbeat, the physician who is to perform or induce the abortion shall comply with the informed consent requirements in section forty-one hundred sixty-four-e of this title in addition to complying with the informed consent requirements of this section.

(e) Prior to the performance or inducement of the abortion, the pregnant woman signs a form consenting to the abortion and certifies both of the following on that form:

(1) she has received the information and materials described in section forty-one hundred sixty-four-i of this title, and her questions about the abortion that will be performed or induced have been answered in a satisfactory manner; and

(2) she consents to the particular abortion voluntarily, knowingly, intelligently, and without coercion by any person, and she is not under the influence of any drug of abuse or alcohol.

(f) The form shall contain the name and contact information of the physician who provided to the pregnant woman the information described in paragraph (a) of this subdivision.

(g) Prior to the performance or inducement of the abortion, the physician who is scheduled to perform or induce the abortion or the physi-

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cian's agent receives a copy of the pregnant woman's signed form on which she consents to the abortion and that includes the certification required by paragraph (e) of this subdivision.

2. If the conditions specified in this section are satisfied, consent to an abortion shall be presumed to be valid and effective.

§ 4164-e. Informed consent after detection of a heartbeat. 1. If a person who intends to perform or induce an abortion on a pregnant woman has determined, under section forty-one hundred sixty-four-c of this title, that the unborn human individual the pregnant woman is carrying has a detectable heartbeat, the person shall not, except as provided in subdivision two of this section, perform or induce the abortion until all of the following requirements have been met and at least twenty-four hours have elapsed after the last of the requirements is met:

(a) the person intending to perform or induce the abortion shall inform the pregnant woman in writing that the unborn human individual the pregnant woman is carrying has a fetal heartbeat;

(b) the person intending to perform or induce the abortion shall inform the pregnant woman, to the best of the person's knowledge, of the statistical probability of bringing the unborn human individual possessing a detectable fetal heartbeat to term based on the gestational age of the unborn human individual or, if the commissioner has specified statistical probability information pursuant to rules adopted under subdivision three of this section, shall provide to the pregnant woman that information; and

(c) the pregnant woman shall sign a form acknowledging that the pregnant woman has received information from the person intending to perform or induce the abortion that the unborn human individual the pregnant woman is carrying has a fetal heartbeat and that the pregnant woman is aware of the statistical probability of bringing the unborn human individual the pregnant woman is carrying to term.

2. The provisions of subdivision one of this section shall not apply if the person who intends to perform or induce the abortion believes that a medical emergency exists that prevents compliance with such subdivision.

3. The commissioner may adopt rules that specify information regarding the statistical probability of bringing an unborn human individual possessing a detectable heartbeat to term based on the gestational age of the unborn human individual. The rules shall be based on available medical evidence.