Bill Text: NY A06064 | 2019-2020 | General Assembly | Introduced
Bill Title: Relates to protecting pain-capable unborn children.
Spectrum: Partisan Bill (Republican 8-0)
Status: (Introduced - Dead) 2020-07-13 - held for consideration in health [A06064 Detail]
Download: New_York-2019-A06064-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 6064 2019-2020 Regular Sessions IN ASSEMBLY February 26, 2019 ___________ Introduced by M. of A. LAWRENCE -- read once and referred to the Commit- tee on Health AN ACT to amend the public health law, in relation to protecting pain- capable unborn children The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act may be cited as the "pain-capable unborn child 2 protection act". 3 § 2. The legislature makes the following findings: 4 (1) Pain receptors are present throughout the unborn child's entire 5 body and nerves link these receptors to the brain's thalamus and subcor- 6 tical plate by no later than twenty weeks after fertilization. 7 (2) By eight weeks after fertilization, the unborn child reacts to 8 touch. After twenty weeks, the unborn child reacts to stimuli that would 9 be recognized as painful if applied to an adult human. 10 (3) In the unborn child, application of such painful stimuli is asso- 11 ciated with significant increases in stress hormones known as the stress 12 response. 13 (4) Subjection to such painful stimuli is associated with long-term 14 harmful neurodevelopmental effects, such as altered pain sensitivity, 15 and possibly, emotional, behavioral and learning disabilities later in 16 life. 17 (5) For the purposes of surgery on unborn children, fetal anesthesia 18 is routinely administered and is associated with a decrease in stress 19 hormones compared to their level when painful stimuli are applied with- 20 out the anesthesia. 21 (6) The position, asserted by some medical experts, that the unborn 22 child is incapable of experiencing pain until a point later in pregnancy 23 than twenty weeks after fertilization predominantly rests on the assump- 24 tion that the ability to experience pain depends on the cerebral cortex 25 and requires nerve connections between the thalamus and the cortex. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD09626-01-9A. 6064 2 1 However, recent medical research and analysis, especially since 2007, 2 provides strong evidence for the conclusion that a functioning cortex is 3 not necessary to experience pain. 4 (7) Substantial evidence indicates that children born missing the bulk 5 of the cerebral cortex, those with hydranencephaly, nevertheless experi- 6 ence pain. 7 (8) In adults, stimulation or ablation of the cerebral cortex does not 8 alter pain perception, while stimulation or ablation of the thalamus 9 does. 10 (9) Substantial evidence indicates that structures used for pain proc- 11 essing in early development differ from those of adults, using different 12 neural elements available at specific times during development, such as 13 the subcortical plate, to fulfill the role of pain processing. 14 (10) The position, asserted by some commentators, that the unborn 15 child remains in a coma-like sleep state that precludes the unborn child 16 experiencing pain is inconsistent with the documented reaction of unborn 17 children to painful stimuli and with the experience of fetal surgeons 18 who had found it necessary to sedate the unborn child with anesthesia to 19 prevent the unborn child from engaging in vigorous movement in reaction 20 to invasive surgery. 21 (11) Consequently, there is substantial medical evidence that an 22 unborn child is capable of experiencing pain by twenty (20) weeks after 23 fertilization. The Legislature has the constitutional authority to make 24 this judgment. As the United States Supreme Court has noted in Gonzales 25 v. Carhart, 550 U.S. 124, 162-64 (2007). "The Court has given state and 26 federal legislatures wide discretion to pass legislation in areas where 27 there is medical and scientific uncertainty...See Marshall v. United 28 States, 414 U.S. 417, 427 (1974) ('When Congress undertakes to act in 29 areas fraught with medical and scientific uncertainties, legislative 30 options must be especially broad.')...The law need not give abortion 31 doctors unfettered choice in the course of their medical practice, nor 32 should it elevate their status above other physicians in the medical 33 community....Medical uncertainty does not foreclose the exercise of 34 legislative power in the abortion context any more than it does in other 35 contexts." 36 (12) It is the purpose of the State to assert a compelling state 37 interest in protecting the lives of unborn children from the stage at 38 which substantial medical evidence indicates that they are capable of 39 feeling pain. 40 (13) In enacting this legislation the state is not asking the Supreme 41 Court to overturn or replace its holding, first articulated in Roe v. 42 Wade and reaffirmed in Planned Parenthood of Southeastern Pennsylvania 43 v. Casey, that the state interest in unborn human life, which is "legit- 44 imate" throughout pregnancy, becomes "compelling" at viability. Rather, 45 it asserts a separate and independent compelling state interest in 46 unborn human life that exists once the unborn child is capable of feel- 47 ing pain, which is asserted not in replacement of, but in addition to 48 the state's compelling state interest in protecting the lives of unborn 49 children from the stage of viability. 50 (14) The United States Supreme Court has established that the "consti- 51 tutional liberty of the woman to have some freedom to terminate her 52 pregnancy...is not so unlimited...that from the outset the State cannot 53 show its concern for the life of the unborn, and at a later point in 54 fetal development the State's interest in life has sufficient force so 55 that the right of the woman to terminate the pregnancy can beA. 6064 3 1 restricted." Planned Parenthood of Southeastern Pennsylvania v. Casey, 2 505 U.S. 833, 869 (1992). 3 (15) The Supreme Court decision upholding the Partial-Birth Abortion 4 Ban Act, Gonzales v. Carhart, 550 U.S. 124 (2007) vindicated the 5 dissenting opinion in the earlier decision that had struck down 6 Nebraska's Partial-Birth Abortion Ban Act. That opinion stated, "{In 7 Casey} We held it was inappropriate for the Judicial Branch to provide 8 an exhaustive list of state interests implicated by abortion...Casey is 9 premised on the States having an important constitutional role in defin- 10 ing their interests in the abortion debate. It is only with this princi- 11 ple in mind that {a state's} interests can be given proper 12 weight...States also have an interest in forbidding medical procedures 13 which, in the State's reasonable determination, might cause the medical 14 profession or society as a whole to become insensitive, even disdainful, 15 to life, including life in the human fetus...A State may take measures 16 to ensure the medical profession and its members are viewed as healers, 17 sustained by a compassionate and rigorous ethic and cognizant of the 18 dignity and value of human life, even life which cannot survive without 19 the assistance of others." Stenberg v. Carhart, 350 U.S. 914, 958-59 20 (2000)(Kennedy, J., dissenting). 21 (16) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which the 22 context of determining the severability of a state statute regulating 23 abortion in the United States Supreme Court noted that an explicit 24 statement of legislative intent specifically made applicable to a 25 particular statute is of greater weight than a general savings or sever- 26 ability clause, it is the intent of the State that if any one or more 27 provisions, sections, subsections, sentences, clauses, phrases or words 28 of this act or the application thereof to any person or circumstance is 29 found to be unconstitutional, the same is hereby declared to be severa- 30 ble and the balance of this act shall remain effective notwithstanding 31 such unconstitutionality. Moreover, the State declares that it would 32 have passed this act, and each provision, section, subsection, sentence, 33 clause, phrase or word thereof, irrespective of the fact that any one or 34 more provisions, sections, subsections, sentences, clauses, phrases or 35 words, or any of their applications, were to be declared unconstitu- 36 tional. 37 § 3. Article 41 of the public health law is amended by adding a new 38 title 5-B to read as follows: 39 TITLE V-B 40 PAIN-CAPABLE UNBORN CHILD PROTECTION 41 Section 4164-a. Definitions. 42 4164-b. Protection of unborn child capable of feeling pain from 43 abortion. 44 4164-c. Reporting. 45 4164-d. Criminal penalties. 46 4164-e. Civil remedies. 47 4164-f. Protection of privacy in court proceedings. 48 4164-g. Litigation defense fund. 49 4164-h. Construction. 50 § 4164-a. Definitions. As used in this title: 51 1. "Abortion" means the use or prescription of any instrument, medi- 52 cine, drug, or any other substance or device: 53 (a) to intentionally kill the unborn child of a woman known to be 54 pregnant; or 55 (b) to intentionally terminate the pregnancy of a woman known to be 56 pregnant, with an intention other than:A. 6064 4 1 (i) after viability to produce a live birth and preserve the life and 2 health of the child born alive; or 3 (ii) to remove a dead unborn child. 4 2. "Attempt", with respect to an abortion, means conduct that, under 5 the circumstances as the actor believes them to be, constitutes a 6 substantial step in a course of conduct planned to culminate in perform- 7 ing an abortion in this state in violation of this title. 8 3. "Fertilization" means the fusion of human spermatozoon with a human 9 ovum. 10 4. "Medical emergency" means a condition that, in reasonable medical 11 judgment, so complicates the medical condition of the pregnant woman 12 that it necessitates an immediate abortion of her pregnancy without 13 first determining post-fertilization age to avert her death or for which 14 the delay necessary to determine post-fertilization age will create 15 serious risk of substantial and irreversible physical impairment of a 16 major bodily function, not including psychological or emotional condi- 17 tions. A condition may not be deemed a medical emergency if based on a 18 claim or diagnosis that the woman will engage in conduct that she 19 intends to result in her death or in substantial and irreversible phys- 20 ical impairment of a major bodily function. 21 5. "Physician" means a person licensed to practice medicine and 22 surgery or osteopathic medicine and surgery, or otherwise legally 23 authorized to perform an abortion. 24 6. "Post-fertilization age" means the age of the unborn child as 25 calculated from the fusion of a human spermatozoon with a human ovum. 26 7. "Probable post-fertilization age of the unborn child" means what, 27 in reasonable medical judgment, will with reasonable probability be the 28 post-fertilization age of the unborn child at the time the abortion is 29 planned to be performed or induced. 30 8. "Reasonable medical judgment" means a medical judgment that would 31 be made by a reasonably prudent physician, knowledgeable about the case 32 and the treatment possibilities with respect to the medical conditions 33 involved. 34 9. "Serious health risk to the unborn child's mother" means that in 35 reasonable medical judgment she has a condition that so complicates her 36 medical condition that it necessitates the abortion of her pregnancy to 37 avert her death or to avert serious risk of substantial and irreversible 38 physical impairment of a major bodily function, not including psycholog- 39 ical or emotional conditions. No greater risk may be determined to exist 40 if it is based on a claim or diagnosis that the woman will engage in 41 conduct which she intends to result in her death or in substantial and 42 irreversible physical impairment of a major bodily function. 43 10. "Unborn child" means an individual organism of the species homo 44 sapiens, beginning at fertilization, until the point of being born 45 alive. 46 11. "Woman" means a female human being whether or not she has reached 47 the age of majority. 48 § 4164-b. Protection of unborn child capable of feeling pain from 49 abortion. 1. No person shall perform or induce, or attempt to perform 50 or induce, an abortion of an unborn child capable of feeling pain unless 51 necessary to prevent serious health risk to the unborn child's mother. 52 2. An unborn child shall be deemed capable of feeling pain when it has 53 been determined, by the physician performing or inducing or attempting 54 to perform or induce the abortion or by another physician upon whose 55 determination that physician relies, that the probable post-fertiliza- 56 tion age of the woman's unborn child is twenty or more weeks.A. 6064 5 1 3. Except in the case of a medical emergency, no abortion may be 2 performed or induced or be attempted to be performed or induced unless 3 the physician performing or inducing it has first made a determination 4 of the probable post-fertilization age of the unborn child or relied 5 upon such a determination made by another physician. In making this 6 determination, the physician shall make such inquiries of the woman and 7 perform or cause to be performed such medical examinations and tests as 8 a reasonably prudent physician, knowledgeable about the case and the 9 medical conditions involved, would consider necessary to perform in 10 making an accurate diagnosis with respect to post-fertilization age. 11 4. When an abortion of an unborn child capable of feeling pain is 12 necessary to prevent serious health risk to the unborn child's mother, 13 the physician shall terminate the pregnancy in the manner which, in 14 reasonable medical judgment, provides the best opportunity for the 15 unborn child to survive, unless, in reasonable medical judgment, termi- 16 nation of the pregnancy in that manner would pose a greater risk either 17 of the death of the pregnant woman or the substantial and irreversible 18 physical impairment of a major bodily function, not including psycholog- 19 ical or emotional conditions, of the woman than would other available 20 methods. No greater risk may be determined to exist if it is based on a 21 claim or diagnosis that the woman will engage in conduct which she 22 intends to result in her death or in substantial and irreversible phys- 23 ical impairment of a major bodily function. 24 § 4164-c. Reporting. 1. Any physician who performs or induces or 25 attempts to perform or induce an abortion shall report to the depart- 26 ment, on a schedule and in accordance with forms and regulations adopted 27 and promulgated by the department, that include: 28 (a) Post-fertilization age: 29 (i) If a determination of probable post-fertilization age was made, 30 whether ultrasound was employed in making the determination, and the 31 week of probable post-fertilization age determined. 32 (ii) If a determination of probable post-fertilization age was not 33 made, the basis of the determination that a medical emergency existed. 34 (b) Method of abortion: which of the following was employed: 35 (i) Medication abortion (such as, but not limited to, 36 mifepristone/misoprostol or methotRexate/misoprostol); 37 (ii) Manual vacuum aspiration; 38 (iii) Electrical vacuum aspiration; 39 (iv) Dilation and evacuation; 40 (v) Combined induction abortion and dilation and evacuation; 41 (vi) Induction abortion with prostaglandins; 42 (vii) Induction abortion with intra-amniotic instillation (such as, 43 but not limited to, saline or urea); 44 (viii) Induction abortion, other; or 45 (ix) Intact dilation and extraction (partial-birth) 46 (c) Whether an intra-fetal injection was used in an attempt to induce 47 fetal demise (such as, but not limited to, intrafetal potassium chloride 48 or digoxin); 49 (d) Age and race of the patient; 50 (e) If the unborn child was deemed capable of experiencing pain under 51 section forty-one hundred sixty-four-b of this title, the basis of the 52 determination that the pregnant woman had a condition which so compli- 53 cated her medical condition as to necessitate the abortion of her preg- 54 nancy to avert her death or to avert serious risk of substantial and 55 irreversible physical impairment of a major bodily function, not includ- 56 ing psychological or emotional conditions;A. 6064 6 1 (f) If the unborn child was deemed capable of experiencing pain under 2 section forty-one hundred sixty-four-b of this title, whether or not the 3 method of abortion used was one that, in reasonable medical judgment, 4 provided the best opportunity for the unborn child to survive and, if 5 such a method was not used, the basis of the determination that termi- 6 nation of the pregnancy in that manner would pose a greater risk either 7 of the death of the pregnant woman or of the substantial and irrevers- 8 ible physical impairment of a major bodily function, not including 9 psychological or emotional conditions, of the woman than would other 10 available methods. 11 2. Reports required by subdivision one of this section may not contain 12 the name or the address of the patient whose pregnancy was terminated, 13 nor may the report contain any other information identifying the 14 patient, except that each report shall contain a unique medical record 15 identifying number, to enable matching the report to the patient's 16 medical records. These reports shall be maintained in strict confidence 17 by the department, shall not be available for public inspection, and 18 shall not be made available except: 19 (a) to the attorney general or a district attorney with appropriate 20 jurisdiction pursuant to a criminal investigation; 21 (b) to the attorney general or a district attorney pursuant to a civil 22 investigation of the grounds for an action under section forty-one 23 hundred sixty-four-e of this title; or 24 (c) pursuant to court order in an action under section forty-one 25 hundred sixty-four-e of this title. 26 3. By June thirtieth of each year the department shall issue a public 27 report providing statistics for the previous calendar year compiled from 28 all of the reports covering that year submitted in accordance with this 29 section for each of the items listed in subdivision one of this section. 30 Each report shall also provide the statistics for all previous calendar 31 years during which this section was in effect, adjusted to reflect any 32 additional information from late or corrected reports. The department 33 shall take care to ensure that none of the information included in the 34 public reports could reasonably lead to the identification of any preg- 35 nant woman upon whom an abortion was performed, induced, or attempted. 36 4. Any physician who fails to submit a report by the end of thirty 37 days following the due date established by regulation shall be subject 38 to a late fee of one thousand dollars ($1,000) for each additional thir- 39 ty-day period or portion of a thirty-day period the report is overdue. 40 Any physician required to report in accordance with this act who has not 41 submitted a report, or has submitted only an incomplete report, more 42 than six months following the due date, may, in an action brought by the 43 department, be directed by a court of competent jurisdiction to submit a 44 complete report within a period stated by court order or be subject to 45 civil contempt. Intentional or reckless failure by any physician to 46 conform to any requirement of this section constitutes professional 47 misconduct pursuant to title two-A of article two of this chapter. 48 § 4164-d. Criminal penalties. Any person who intentionally or reck- 49 lessly performs or induces or attempts to perform or induce an abortion 50 in violation of this title shall be guilty of a felony. No penalty may 51 be assessed against the woman upon whom the abortion is performed or 52 induced or attempted to be performed or induced. 53 § 4164-e. Civil remedies. 1. Any woman upon whom an abortion has been 54 performed or induced in violation of this title, or the father of the 55 unborn child who was the subject of such an abortion, may maintain an 56 action against the person who performed or induced the abortion inA. 6064 7 1 intentional or reckless violation of this title for actual and punitive 2 damages. Any woman upon whom an abortion has been attempted in violation 3 of this title may maintain an action against the person who attempted to 4 perform or induce the abortion in an intentional or reckless violation 5 of this title for actual and punitive damages. 6 2. A cause of action for injunctive relief against any person who has 7 intentionally or recklessly violated this title may be maintained (i) by 8 the woman upon whom an adoption was performed or induced or attempted to 9 be performed or induced in violation of this title; (ii) by any person 10 who is the spouse, parent, sibling or guardian of, or a current or 11 former licensed health care provider of, the woman upon whom an abortion 12 has been performed or induced or attempted to be performed or induced in 13 violation of this title; (iii) by a prosecuting attorney with appropri- 14 ate jurisdiction; or (iv) by the attorney general. The injunction shall 15 prevent the abortion provider from performing or inducing or attempting 16 to perform or induce further abortions in violation of this title in 17 this state. 18 3. If judgment is rendered in favor of the plaintiff in an action 19 described in this section, the court shall also render judgment for a 20 reasonable attorney's fee in favor of the plaintiff against the defend- 21 ant. 22 4. If judgment is rendered in favor of the defendant and the court 23 finds the plaintiff's suit was frivolous and brought in bad faith, the 24 court shall also render judgment for a reasonable attorney's fee in 25 favor of the defendant against the plaintiff. 26 5. No damages or attorney's fee may be assessed against the woman upon 27 whom an abortion was performed or induced or attempted to be performed 28 or induced except in accordance with subdivision four of this section. 29 § 4164-f. Protection of privacy in court proceedings. In every civil 30 or criminal proceeding or action brought under this title, the court 31 shall rule whether the anonymity of any woman upon whom an abortion has 32 been performed or induced or attempted to be performed or induced shall 33 be preserved from public disclosure if she does not give her consent to 34 such disclosure. The court shall make such a ruling and, upon determin- 35 ing that her anonymity should be preserved, shall issue orders to the 36 parties, witnesses, and counsel and shall direct the sealing of the 37 record and exclusion of individuals from courtrooms or hearing rooms to 38 the extent necessary to safeguard her identity from public disclosure. 39 Each such order shall be accompanied by specific written findings 40 explaining why the anonymity of the woman should be preserved from 41 public disclosure, why the order is essential to that end, how the order 42 is narrowly tailored to serve that interest, and why no reasonable less 43 restrictive alternative exists. In the absence of written consent of the 44 woman upon whom an abortion has been performed or induced or attempted 45 to be performed or induced, anyone, other than a public official, who 46 brings an action under section forty-one hundred sixty-four-e of this 47 title shall do so under a pseudonym. This section may not be construed 48 to conceal the identity of the plaintiff or of witnesses from the 49 defendant or from attorney for the defendant. 50 § 4164-g. Litigation defense fund. 1. There is hereby established in 51 the joint custody of the state comptroller and the department a special 52 fund known as the Pain-Capable Unborn Child Protection Act Litigation 53 Fund for the purpose of providing funds to pay for any costs and 54 expenses incurred by the state attorney general in relation to actions 55 surrounding defense of this law.A. 6064 8 1 2. The fund shall consist of: (a) appropriations made to the account 2 by the legislature; and (b) any donations, gifts, or grants made to the 3 account. 4 3. The fund shall retain the interest income derived from the moneys 5 credited to the fund. 6 § 4165-h. Construction. This act shall not be construed to repeal, by 7 implication or otherwise, any otherwise applicable provision of law 8 regulating or restricting abortion. An abortion that complies with this 9 title but violates the provisions of any otherwise applicable provision 10 of law shall be deemed unlawful as provided in such provision. An 11 abortion that complies with the provisions of any otherwise applicable 12 provision of law regulating or restricting abortion but violates this 13 title shall be deemed unlawful as provided in this title. If some or all 14 of the provisions of this title are ever temporarily or permanently 15 restrained or enjoined by judicial order, all other provisions of law 16 regulating or restricting abortion shall be enforced as though such 17 restrained or enjoined provisions had not been adopted; provided, howev- 18 er, that whenever such temporary or permanent restraining order of 19 injunction is stayed or dissolved, or otherwise ceases to have effect, 20 such provisions shall have full force and effect. 21 § 4. This act shall take effect immediately.
