S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2286

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 15, 2013
                               ___________

Introduced  by  Sen.  BALL  --  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  establishing  a
  cause  of action for damages against a person who attempts or performs
  a sex selective abortion

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The  public health law is amended by adding a new section
230-e to read as follows:
  S 230-E. PROHIBITION OF SEX SELECTIVE  ABORTION.    1.  THE  FOLLOWING
WORDS OR PHRASES, AS USED IN THIS SECTION SHALL HAVE THE FOLLOWING MEAN-
INGS:
  (A)  "ABORTION"  MEANS  THE  INTENTIONAL  USE  OR  PRESCRIPTION OF ANY
INSTRUMENT, MEDICINE, DRUG OR ANY OTHER SUBSTANCE OR DEVICE OR METHOD TO
TERMINATE THE LIFE OF AN UNBORN CHILD, OR TO TERMINATE THE PREGNANCY  OF
A  WOMAN  KNOWN TO BE PREGNANT WITH AN INTENTION OTHER THAN TO PRODUCE A
LIVE BIRTH AND PRESERVE THE LIFE AND HEALTH  OF  THE  CHILD  AFTER  LIVE
BIRTH,  OR  TO  REMOVE  AN ECTOPIC PREGNANCY, OR TO REMOVE A DEAD UNBORN
CHILD WHO DIED AS THE RESULT OF NATURAL CAUSES, ACCIDENTAL TRAUMA, OR  A
CRIMINAL ASSAULT ON THE PREGNANT WOMAN.
  (B)  "ATTEMPT  TO  PERFORM  AN  ABORTION"  MEANS  TO  DO OR OMIT TO DO
ANYTHING THAT, UNDER THE CIRCUMSTANCES AS THE ACTOR BELIEVES THEM TO BE,
IS AN ACT OR OMISSION CONSTITUTING A SUBSTANTIAL STEP  IN  A  COURSE  OF
CONDUCT  PLANNED  TO  CULMINATE  IN  AN ABORTION. SUCH SUBSTANTIAL STEPS
INCLUDE, BUT ARE NOT LIMITED TO: (I)  AGREEING  WITH  AN  INDIVIDUAL  TO
PERFORM  AN ABORTION ON THAT INDIVIDUAL OR ON SOME OTHER PERSON, WHETHER
OR NOT THE TERM "ABORTION" IS USED IN THE AGREEMENT, AND WHETHER OR  NOT
THE AGREEMENT IS CONTINGENT ON ANOTHER FACTOR SUCH AS RECEIPT OF PAYMENT
OR  A DETERMINATION OF PREGNANCY; AND (II) SCHEDULING OR PLANNING A TIME
TO PERFORM AN ABORTION  ON  AN  INDIVIDUAL,  WHETHER  OR  NOT  THE  TERM
"ABORTION"  IS USED, AND WHETHER OR NOT THE PERFORMANCE IS CONTINGENT ON

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00903-01-3
              

S. 2286                             2

ANOTHER FACTOR SUCH AS RECEIPT OF PAYMENT OR A DETERMINATION OF PREGNAN-
CY. THIS DEFINITION SHALL NOT BE CONSTRUED TO REQUIRE THAT  AN  ABORTION
PROCEDURE ACTUALLY BE INITIATED FOR AN ATTEMPT TO OCCUR.
  (C)  "PHYSICIAN"  MEANS  A  DOCTOR  OF  MEDICINE OR OSTEOPATHY LEGALLY
AUTHORIZED TO PRACTICE MEDICINE IN THE STATE.
  2. NO PERSON SHALL KNOWINGLY  OR  RECKLESSLY  PERFORM  OR  ATTEMPT  TO
PERFORM  AN  ABORTION WITH KNOWLEDGE THAT THE PREGNANT FEMALE IS SEEKING
THE ABORTION SOLELY ON ACCOUNT OF THE SEX OF THE UNBORN  CHILD.  NOTHING
IN  THIS  SECTION  SHALL BE CONSTRUED TO PROSCRIBE THE PERFORMANCE OF AN
ABORTION BECAUSE THE  UNBORN  CHILD  HAS  A  GENETIC  DISORDER  THAT  IS
SEX-LINKED.
  3.  ANY  PERSON UPON WHOM AN ABORTION WAS PERFORMED OR ATTEMPTED TO BE
PERFORMED IN VIOLATION OF SUBDIVISION TWO OF THIS SECTION, THE FATHER OF
THE UNBORN CHILD, OR THE GRANDPARENT OF THE UNBORN CHILD MAY MAINTAIN AN
ACTION AGAINST THE PERSON WHO PERFORMED  OR  ATTEMPTED  TO  PERFORM  THE
ABORTION.  THE PERSON WHO PERFORMED OR ATTEMPTED TO PERFORM THE ABORTION
MAY BE LIABLE IN SUCH AN ACTION FOR PUNITIVE DAMAGES NOT TO  EXCEED  TEN
THOUSAND  DOLLARS  AND  FOR DAMAGES THE PLAINTIFF ACTUALLY SUSTAINED. NO
PLAINTIFF SHALL BE ESTOPPED FROM RECOVERY  IN  SUCH  AN  ACTION  ON  THE
GROUND  THAT  EITHER  THE PLAINTIFF OR THE PERSON UPON WHOM THE ABORTION
WAS PERFORMED GAVE CONSENT TO THE ABORTION.
  4. AN ABORTION PROVIDER  WHO  KNOWINGLY  OR  RECKLESSLY  PERFORMED  OR
ATTEMPTED  TO  PERFORM AN ABORTION IN VIOLATION OF THIS SECTION SHALL BE
CONSIDERED TO HAVE ENGAGED  IN  UNPROFESSIONAL  CONDUCT  FOR  WHICH  THE
CERTIFICATE  OR  LICENSE OF THE PROVIDER TO PROVIDE HEALTH CARE SERVICES
IN THIS STATE SHALL BE SUSPENDED OR  REVOKED  BY  THE  STATE  BOARD  FOR
PROFESSIONAL MEDICAL CONDUCT PURSUANT TO SECTION TWO HUNDRED THIRTY-A OF
THIS TITLE.
  5.  IN  EVERY  PROCEEDING OR ACTION INSTITUTED UNDER THIS SECTION, THE
ANONYMITY OF ANY FEMALE UPON WHOM AN ABORTION IS PERFORMED OR  ATTEMPTED
SHALL  BE PRESERVED UNLESS SHE GIVES HER CONSENT TO SUCH DISCLOSURE. THE
COURT, UPON MOTION OR SUA SPONTE, SHALL ISSUE  ORDERS  TO  THE  PARTIES,
WITNESSES  AND  COUNSEL,  AND SHALL DIRECT THE SEALING OF THE RECORD AND
EXCLUSION OF INDIVIDUALS FROM COURTROOMS OR HEARING ROOMS TO THE  EXTENT
NECESSARY  TO SAFEGUARD THE FEMALE'S IDENTITY FROM PUBLIC DISCLOSURE. IN
THE ABSENCE OF WRITTEN CONSENT OF THE FEMALE UPON WHOM AN  ABORTION  HAS
BEEN  PERFORMED  OR  ATTEMPTED,  ANY  PLAINTIFF WHO INSTITUTES AN ACTION
UNDER SUBDIVISION THREE OF THIS SECTION SHALL DO SO UNDER A PSEUDONYM.
  S 2. If any provision, word, phrase or  clause  of  this  act  or  the
application  thereof to any person or circumstance is held invalid, such
invalidity shall not affect the provisions, words,  phrases,  clause  or
applications  of  this act which can be given effect without the invalid
provision, word, phrase, clause or application, and  to  this  end,  the
provisions,  words,  phrases, and clauses of this act are declared to be
severable. If the application of this act to  the  period  of  pregnancy
prior  to  viability  is  held  invalid,  then such invalidity shall not
affect its application to the period of pregnancy subsequent to  viabil-
ity.
  S 3. This act shall take effect immediately.