Require Parental Consent for Abortion

Section 1. This act shall be known and may be cited as the "family protection act".

§ 2. Legislative intent. 1. The legislature finds and declares that:

(a) it is the intent of this legislature by enacting this act to further the important and compelling state interests of protecting minors against their own immaturity, fostering the family structure and preserving it as a viable social unit, protecting the rights of parents to rear children who are members of their household, and protecting the health of minor children.

(b) immature minors often lack the ability to make fully-informed choices that take account of both immediate and long-range consequences and that the medical, emotional and psychological consequences of abortion are serious and can be lasting, particularly when the patient is immature. The capacity to become pregnant and the capacity for mature judgment concerning the wisdom of an abortion are not necessarily related. Parents ordinarily possess information essential to a physician's exercise of his best medical judgment concerning the child and, further, parents who are aware that their minor daughter has had an abortion may better ensure that she receives adequate medical attention after her abortion. The legislature concludes then, that, parental consultation is usually desirable and in the best interest of the minor.

(c) it is essential to the psychological and physical well-being of a female considering an abortion that she receive complete and accurate information on her alternatives. The knowledgeable exercise of a woman's

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

[ ] is old law to be omitted.

LBD08468-01-7

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decision to have an abortion depends on the extent to which the female receives sufficient information to make an informed choice between two alternatives: giving birth or having an abortion.

(d) over eighty percent of all abortions are performed in clinics devoted solely to providing abortions and family planning services. Most females who seek abortions at these facilities do not have any relationship with the physician who performs the abortion, before or after the procedure. They do not return to the facility for post-surgical care. In most instances, the female's only actual contact with the physician occurs simultaneously with the abortion procedure, with little opportunity to receive counseling concerning her decision.

(e) the decision to abort is an important, and often stressful one and it is desirable and imperative that it be made with full knowledge of its nature and consequences. The medical, emotional and psychological consequences of an abortion are serious and can be lasting.

(f) abortion facilities or providers offer only limited and/or impersonal counseling opportunities. Many abortion facilities or providers hire untrained and unprofessional "counselors" whose primary goal is to sell abortion services.

2. Based on the findings and declarations set forth in subdivision one of this section, it is the intent of this act to:

(a) provide that pregnant minors have the benefit of parental guidance;

(b) ensure that every female considering an abortion receive complete information on her alternatives and that every female submitting to an abortion do so only after giving her voluntary and informed consent to the abortion procedure;

(c) protect unborn children from a mother's uninformed decision to have an abortion; and

(d) reduce the risk that a mother may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.

§ 3. Article 25 of the public health law is amended by adding a new title 1-C to read as follows:

TITLE I-C

FAMILY PROTECTION ACT

Section 2515-e. Definitions.

2515-f. Consent concerning an abortion.

2515-g. Limitations.

2515-h. Coercion prohibited.

2515-i. Informed consent requirement.

2515-j. Publication of materials.

2515-k. Emergency.

2515-l. Penalties.

2515-m. Anonymity.

§ 2515-e. Definitions. For the purposes of this section, the following terms shall have the following meanings:

(a) "Abortion" means the use or prescription of any instrument, medicine, drug or any other substance or device with the intent to terminate the pregnancy of a female known to be pregnant with intent other than to increase probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus.

(b) "Attempt to perform an abortion" means an act or omission of a statutorily required act, that, under the circumstances as the actor

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believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance of an abortion in the state of New York in violation of this title.

(c) "Unemancipated minor" means a female who has not attained the age of eighteen years and is not an emancipated minor as defined in subdivision (d) of this section.

(d) "Emancipated minor" means a female who is or has been lawfully married or has by court order or otherwise been freed from the care, custody and control of her parents.

(e) "Medical emergency" means any condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant female as to necessitate the immediate abortion of her pregnancy to avert her death or for which delay will create serious risk of substantial or irreversible impairment of a major bodily function.

(f) "Parent" means one parent of the pregnant female, or guardian or conservator if the pregnant female has one.

(g) "Conception" means the fusion of a human spermatozoon with a human ovum.

(h) "Gestational age" means the time that has elapsed since the first day of a female's last menstrual period.

(i) "Physician" means any person licensed to practice medicine in this state. The term includes medical doctors and doctors of osteopathy.

(j) "Pregnant" or "pregnancy" means the female reproductive condition of having an unborn child in the female's body.

(k) "Agent" means an agent of the physician who is a psychologist, licensed social worker, licensed professional counselor, registered nurse or physician.

(l) "Unborn child" means the offspring of human beings from conception until birth.

(m) "Viability" and "viable" means that stage in fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-supportive systems.

(n) "Female" means any person of the female gender.

§ 2515-f. Consent concerning an abortion. No person shall knowingly perform an abortion upon an unemancipated minor or upon a female for whom a guardian or conservator has been appointed because of a finding of incompetency, unless the attending physician has secured the written consent of one parent or guardian or conservator if the pregnant female has one. In obtaining the consent of the unemancipated minor's parent or the female's guardian or conservator, the physician shall provide the information and materials specified in section twenty-five hundred fifteen-i of this title and shall obtain from them the certification required by subdivision (c) of section twenty-five hundred fifteen-i of this title.

(a) The written consent shall be addressed to the parent or guardian at the usual place of abode of the parent or guardian and delivered personally to the parent or guardian by the physician or an agent.

(b) In lieu of the delivery required by subdivision (a) of this section, notice shall be made by certified mail addressed to the parent or guardian at the usual place of abode of the parent or guardian with return receipt requested with restricted delivery to the addressee. Time of delivery shall be deemed to occur at twelve o'clock noon on the third day after mailing.

§ 2515-g. Limitations. No consent shall be required under this title if:

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(a) the attending physician certifies in the pregnant minor's medical record that the abortion is necessary to prevent the minor's death and there is insufficient time to obtain the required consent; or

(b) the person who is entitled to consent certifies in writing that he/she has consented; or

(c) the minor elects not to obtain consent of her parent or guardian or conservator and obtains an order issued by a judge of the family court as provided in article ten-D of the family court act, or by any other judge or justice of this state having jurisdiction, dispensing with such consent.

§ 2515-h. Coercion prohibited. No parent, guardian or other person shall coerce any female to undergo an abortion. Any female who is threatened with such coercion may apply to a court of competent jurisdiction for relief. The court shall provide a minor with counsel, give the matter expedited consideration and grant such relief as may be necessary to prevent such coercion. Should a minor be denied financial support of her parents by reason of her refusal to undergo an abortion, she shall be considered emancipated for purposes of eligibility for assistance benefits.

§ 2515-i. Informed consent requirement. No abortion shall be performed or induced without the voluntary and informed consent of the female upon whom the abortion is to be performed or induced. Except in the case of a medical emergency, consent to an abortion is voluntary and informed if and only if:

(a) at least twenty-four hours prior to the abortion, the physician who is to perform the abortion or the referring physician has informed the female, by telephone or in person, of:

1. the name of the physician who will perform the abortion;

2. the nature of the proposed abortion method and of those risks and alternatives to the method that a reasonable patient would consider material to the decision or whether or not to undergo the abortion;

3. the probable gestational age of the unborn child at the time the abortion is to be performed, and, if the unborn child is viable or has reached the gestational age of twenty-two weeks, that (i) the unborn child may be able to survive outside the womb; (ii) the woman has the right to request the physician to use the form of treatment that is most likely to preserve the life of the unborn child; and (iii) if the unborn child is born alive, the attending physician has the legal obligation to take all reasonable steps necessary to maintain the life and health of the child;

4. the probable anatomical and physiological characteristics of the unborn child at the time the abortion is to be performed;

5. the medical risks associated with carrying her child to term;

6. the medical and psychological risks associated with abortion; and

7. any need for anti-Rh immune globulin therapy, if she is Rh negative, the likely consequences of refusing such therapy and the cost of the therapy.

The information required by this subdivision may be provided by telephone without conducting a physical examination or tests of the patient, in which case the information required to be provided may be based on facts supplied to the physician by the female and whatever other relevant information is reasonably available to the physician. It may not be provided by a tape recording, but shall be provided during a consultation in which the physician is able to ask questions of the female and the female is able to ask questions of the physician. If a physical examination, tests, or the availability of other information to the

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physician subsequently indicates in the medical judgment of the physician, a revision of the information previously supplied to the patient, that revised information may be communicated to the patient at any time prior to the performance of the abortion. Nothing in this section may be construed to preclude provision of required information in a language understood by the patient through a translator.

(b) at least twenty-four hours prior to the abortion, the physician who is to perform the abortion, the referring physician, or an agent of either physician shall inform the female, by telephone or in person, that:

1. medical assistance benefits may be available for prenatal care, childbirth and neonatal care;

2. the father of the unborn child is liable to assist in the support of her child, even in the instances where he has offered to pay for the abortion. In the case of forcible rape, this information may be omitted;

3. she has the right to review the printed materials published pursuant to section twenty-five hundred fifteen-j of this title. The physician or physician's agent shall orally inform the woman the materials have been provided by the state of New York and that they describe the unborn child and list agencies which offer alternatives to abortion. If the female chooses to view the materials, they shall either be given to her at least twenty-four hours before the abortion or mailed to her at least seventy-two hours before the abortion by certified mail, restricted delivery to addressee. The information required by this paragraph may be provided by a tape recording if the provision is made to record or otherwise register whether the woman does or does not choose to review the printed materials;