Ban Late-Term Abortions

Section 1. This act may be cited as the "pain-capable unborn child protection act".

§ 2. The legislature makes the following findings:

(1) Pain receptors are present throughout the unborn child's entire body and nerves link these receptors to the brain's thalamus and subcortical plate by no later than twenty weeks after fertilization.

(2) By eight weeks after fertilization, the unborn child reacts to touch. After twenty weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human.

(3) In the unborn child, application of such painful stimuli is associated with significant increases in stress hormones known as the stress response.

(4) Subjection to such painful stimuli is associated with long-term harmful neurodevelopmental effects, such as altered pain sensitivity, and possibly, emotional, behavioral and learning disabilities later in life.

(5) For the purposes of surgery on unborn children, fetal anesthesia is routinely administered and is associated with a decrease in stress hormones compared to their level when painful stimuli are applied without the anesthesia.

(6) The position, asserted by some medical experts, that the unborn child is incapable of experiencing pain until a point later in pregnancy than twenty weeks after fertilization predominantly rests on the assumption that the ability to experience pain depends on the cerebral cortex and requires nerve connections between the thalamus and the cortex. However, recent medical research and analysis, especially since 2007, provides strong evidence for the conclusion that a functioning cortex is not necessary to experience pain.

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

[ ] is old law to be omitted.

LBD13856-01-7

A. 8907 2

(7) Substantial evidence indicates that children born missing the bulk of the cerebral cortex, those with hydranencephaly, nevertheless experience pain.

(8) In adults, stimulation or ablation of the cerebral cortex does not alter pain perception, while stimulation or ablation of the thalamus does.

(9) Substantial evidence indicates that structures used for pain processing in early development differ from those of adults, using different neural elements available at specific times during development, such as the subcortical plate, to fulfill the role of pain processing.

(10) The position, asserted by some commentators, that the unborn child remains in a coma-like sleep state that precludes the unborn child experiencing pain is inconsistent with the documented reaction of unborn children to painful stimuli and with the experience of fetal surgeons who had found it necessary to sedate the unborn child with anesthesia to prevent the unborn child from engaging in vigorous movement in reaction to invasive surgery.

(11) Consequently, there is substantial medical evidence that an unborn child is capable of experiencing pain by twenty (20) weeks after fertilization. The Legislature has the constitutional authority to make this judgment. As the United States Supreme Court has noted in Gonzales v. Carhart, 550 U.S. 124, 162-64 (2007). "The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty...See Marshall v. United States, 414 U.S. 417, 427 (1974) ('When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad.')...The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community....Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts."

(12) It is the purpose of the State to assert a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.

(13) In enacting this legislation the state is not asking the Supreme Court to overturn or replace its holding, first articulated in Roe v. Wade and reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, that the state interest in unborn human life, which is "legitimate" throughout pregnancy, becomes "compelling" at viability. Rather, it asserts a separate and independent compelling state interest in unborn human life that exists once the unborn child is capable of feeling pain, which is asserted not in replacement of, but in addition to the state's compelling state interest in protecting the lives of unborn children from the stage of viability.

(14) The United States Supreme Court has established that the "constitutional liberty of the woman to have some freedom to terminate her pregnancy...is not so unlimited...that from the outset the State cannot show its concern for the life of the unborn, and at a later point in fetal development the State's interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 869 (1992).

(15) The Supreme Court decision upholding the Partial-Birth Abortion Ban Act, Gonzales v. Carhart, 550 U.S. 124 (2007) vindicated the

A. 8907 3

dissenting opinion in the earlier decision that had struck down Nebraska's Partial-Birth Abortion Ban Act. That opinion stated, "{In Casey} We held it was inappropriate for the Judicial Branch to provide an exhaustive list of state interests implicated by abortion...Casey is premised on the States having an important constitutional role in defining their interests in the abortion debate. It is only with this principle in mind that {a state's} interests can be given proper weight...States also have an interest in forbidding medical procedures which, in the State's reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus...A State may take measures to ensure the medical profession and its members are viewed as healers, sustained by a compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life which cannot survive without the assistance of others." Stenberg v. Carhart, 350 U.S. 914, 958-59 (2000)(Kennedy, J., dissenting).

(16) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which the context of determining the severability of a state statute regulating abortion in the United States Supreme Court noted that an explicit statement of legislative intent specifically made applicable to a particular statute is of greater weight than a general savings or severability clause, it is the intent of the State that if any one or more provisions, sections, subsections, sentences, clauses, phrases or words of this act or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of this act shall remain effective notwithstanding such unconstitutionality. Moreover, the State declares that it would have passed this act, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one or more provisions, sections, subsections, sentences, clauses, phrases or words, or any of their applications, were to be declared unconstitutional.

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

TITLE V-B

PAIN-CAPABLE UNBORN CHILD PROTECTION Section 4164-a. Definitions.

4164-b. Protection of unborn child capable of feeling pain from

abortion.

4164-c. Reporting.

4164-d. Criminal penalties.

4164-e. Civil remedies.

4164-f. Protection of privacy in court proceedings.

4164-g. Litigation defense fund.

4164-h. Construction.

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

1. "Abortion" means the use or prescription of any instrument, medicine, drug, or any other substance or device:

(a) to intentionally kill the unborn child of a woman known to be pregnant; or

(b) to intentionally terminate the pregnancy of a woman known to be pregnant, with an intention other than:

(i) after viability to produce a live birth and preserve the life and health of the child born alive; or

(ii) to remove a dead unborn child.

A. 8907 4

2. "Attempt", with respect to an abortion, means conduct that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in performing an abortion in this state in violation of this title.

3. "Fertilization" means the fusion of human spermatozoon with a human ovum.

4. "Medical emergency" means a condition that, in reasonable medical judgment, so complicates the medical condition of the pregnant woman that it necessitates an immediate abortion of her pregnancy without first determining post-fertilization age to avert her death or for which the delay necessary to determine post-fertilization age will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. A condition may not be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct that she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.

5. "Physician" means a person licensed to practice medicine and surgery or osteopathic medicine and surgery, or otherwise legally authorized to perform an abortion.

6. "Post-fertilization age" means the age of the unborn child as calculated from the fusion of a human spermatozoon with a human ovum.

7. "Probable post-fertilization age of the unborn child" means what, in reasonable medical judgment, will with reasonable probability be the post-fertilization age of the unborn child at the time the abortion is planned to be performed or induced.

8. "Reasonable medical judgment" means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.

9. "Serious health risk to the unborn child's mother" means that in reasonable medical judgment she has a condition that so complicates her medical condition that it necessitates the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. No greater risk may be determined to exist if it is based on a claim or diagnosis that the woman will engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.

10. "Unborn child" means an individual organism of the species homo sapiens, beginning at fertilization, until the point of being born alive.

11. "Woman" means a female human being whether or not she has reached the age of majority.

§ 4164-b. Protection of unborn child capable of feeling pain from abortion. 1. No person shall perform or induce, or attempt to perform or induce, an abortion of an unborn child capable of feeling pain unless necessary to prevent serious health risk to the unborn child's mother.

2. An unborn child shall be deemed capable of feeling pain when it has been determined, by the physician performing or inducing or attempting to perform or induce the abortion or by another physician upon whose determination that physician relies, that the probable post-fertilization age of the woman's unborn child is twenty or more weeks.

3. Except in the case of a medical emergency, no abortion may be performed or induced or be attempted to be performed or induced unless the physician performing or inducing it has first made a determination

A. 8907 5

of the probable post-fertilization age of the unborn child or relied upon such a determination made by another physician. In making this determination, the physician shall make such inquiries of the woman and perform or cause to be performed such medical examinations and tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions involved, would consider necessary to perform in making an accurate diagnosis with respect to post-fertilization age.

4. When an abortion of an unborn child capable of feeling pain is necessary to prevent serious health risk to the unborn child's mother, the physician shall terminate the pregnancy in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive, unless, in reasonable medical judgment, termination of the pregnancy in that manner would pose a greater risk either of the death of the pregnant woman or the substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, of the woman than would other available methods. No greater risk may be determined to exist if it is based on a claim or diagnosis that the woman will engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.

§ 4164-c. Reporting. 1. Any physician who performs or induces or attempts to perform or induce an abortion shall report to the department, on a schedule and in accordance with forms and regulations adopted and promulgated by the department, that include: