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

                                  3725

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            January 27, 2015
                               ___________

Introduced by M. of A. DiPIETRO -- read once and referred to the Commit-
  tee on Health

AN  ACT  to amend the public health law, in relation to establishing the
  requirement of testing for a fetal heartbeat prior to the  performance
  of an abortion, establishing standards for informed consent, directing
  the  department  of  public  health to prepare and disseminate certain
  materials regarding abortion and providing for certain civil remedies;
  to amend the education law, in relation to expanding the definition of
  medical professional misconduct to include certain  acts  of  abortion
  and  authorizing  certain sanctions for violations; to amend the penal
  law, in relation to criminalizing the performance of an abortion under
  certain circumstances; to establish the joint legislative committee on
  adoption promotion and support; to provide for certain remedies in the
  event that the supreme court of the United  States  overrules  ROE  V.
  WADE; and to authorize the commissioner of the department of health to
  promulgate certain rules and regulations

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

  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 spontane-
ous 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 gestation-
al 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.
                                                           LBD07947-01-5
              

A. 3725                             2

  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.
  S 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.
  S 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  REPETI-
TIVE 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  DEVELOP-
MENT.
  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  EXTRAEM-
BRYONIC  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 GESTA-
TIONAL  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 TERMI-
NATION OF A PREGNANCY AND THE EXPULSION OF THE FETUS,  TYPICALLY  CAUSED
BY  GENETIC  DEFECTS IN THE FETUS OR PHYSICAL ABNORMALITIES IN THE PREG-
NANT 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 PRES-
ENCE  OF  A  FETAL  HEARTBEAT  FOR PURPOSES OF SECTION FORTY-ONE HUNDRED
SIXTY-FOUR-C OF THIS TITLE, "STANDARD MEDICAL PRACTICE" INCLUDES EMPLOY-
ING THE APPROPRIATE MEANS OF DETECTION DEPENDING ON THE ESTIMATED GESTA-
TIONAL AGE OF THE FETUS AND THE CONDITION OF THE WOMAN AND HER  PREGNAN-
CY.
  16.  "UNBORN  HUMAN  INDIVIDUAL"  MEANS  AN INDIVIDUAL ORGANISM OF THE
SPECIES HOMO SAPIENS FROM FERTILIZATION UNTIL LIVE BIRTH.
  S 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
SIXTY-FOUR-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.
  S 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 PREG-
NANT WOMAN IS CARRYING. THE METHOD OF  DETERMINING  THE  PRESENCE  OF  A
FETAL  HEARTBEAT SHALL BE CONSISTENT WITH THE PERSON'S GOOD FAITH UNDER-
STANDING OF STANDARD MEDICAL PRACTICE AND IN ACCORDANCE WITH ALL  APPLI-
CABLE  RULES  PROMULGATED BY THE COMMISSIONER. THE PERSON WHO DETERMINES
THE PRESENCE OR ABSENCE OF A FETAL HEARTBEAT SHALL RECORD IN  THE  PREG-
NANT  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.
  S  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:

A. 3725                             4

  (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 AFFIL-
IATED 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 TELE-
PHONE, 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  PREG-
NANT 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 PHYSI-
CIAN WHO IS SCHEDULED TO PERFORM OR INDUCE THE ABORTION  OR  THE  PHYSI-

A. 3725                             5

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.
  S 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 POSSESS-
ING 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  PREG-
NANT 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 INDI-
VIDUAL 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.
  4. THIS SECTION SHALL NOT HAVE THE EFFECT OF REPEALING OR LIMITING ANY
OTHER PROVISION OF LAW RELATING TO INFORMED CONSENT FOR AN ABORTION.
  S 4164-F. PERFORMANCE OF ABORTION. 1. (A) A  PERSON  WHO  PERFORMS  OR
INDUCES  AN  ABORTION  ON  A  PREGNANT  WOMAN  SHALL DO WHICHEVER OF THE
FOLLOWING IS APPLICABLE:
  (1) IF THE REASON FOR THE ABORTION  PURPORTEDLY  IS  TO  PRESERVE  THE
HEALTH  OF  THE  PREGNANT  WOMAN,  THE PERSON SHALL SPECIFY IN A WRITTEN
DOCUMENT THE MEDICAL CONDITION THAT THE ABORTION IS ASSERTED TO  ADDRESS
AND  THE MEDICAL RATIONALE FOR THE PERSON'S CONCLUSION THAT THE ABORTION
IS NECESSARY TO ADDRESS THAT CONDITION; OR
  (2) IF THE REASON FOR THE ABORTION  IS  OTHER  THAN  TO  PRESERVE  THE
HEALTH  OF  THE  PREGNANT  WOMAN,  THE PERSON SHALL SPECIFY IN A WRITTEN
DOCUMENT THAT MATERNAL HEALTH IS NOT THE PURPOSE OF THE ABORTION.
  (B) THE PERSON WHO SPECIFIES THE INFORMATION IN THE DOCUMENT DESCRIBED
IN PARAGRAPH (A) OF THIS SUBDIVISION SHALL PLACE  THE  DOCUMENT  IN  THE
PREGNANT WOMAN'S MEDICAL RECORDS. FOR AT LEAST SEVEN YEARS FROM THE DATE

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THE  DOCUMENT IS CREATED, THE PERSON WHO SPECIFIES THE INFORMATION SHALL
MAINTAIN A COPY OF THE DOCUMENT IN THE PERSON'S OWN RECORDS.
  2.  IN THE EVENT THAT TESTING REVEALS A FETAL HEARTBEAT AS PROVIDED IN
SECTION FORTY-ONE HUNDRED SIXTY-FOUR-C OF THIS TITLE, EXCEPT AS PROVIDED
IN SUBDIVISION THREE OF THIS SECTION,  NO  PERSON  SHALL  KNOWINGLY  AND
PURPOSEFULLY  PERFORM OR INDUCE AN ABORTION ON A PREGNANT WOMAN WITH THE
SPECIFIC INTENT OF CAUSING OR ABETTING THE TERMINATION OF  THE  LIFE  OF
THE  UNBORN  HUMAN  INDIVIDUAL  THE  PREGNANT WOMAN IS CARRYING. WHOEVER
VIOLATES THE PROVISIONS OF THIS SUBDIVISION IS GUILTY OF ABORTION IN THE
THIRD DEGREE AS PROVIDED IN SECTION 125.41 OF THE PENAL LAW.
  3. (A) THE PROVISIONS OF SUBDIVISION TWO OF  THIS  SECTION  SHALL  NOT
APPLY  TO  A  PHYSICIAN  WHO  PERFORMS  A MEDICAL PROCEDURE THAT, IN THE
PHYSICIAN'S REASONABLE MEDICAL JUDGMENT,  IS  DESIGNED  OR  INTENDED  TO
PREVENT  THE DEATH OF THE PREGNANT WOMAN OR TO PREVENT A SERIOUS RISK OF
THE SUBSTANTIAL AND IRREVERSIBLE IMPAIRMENT OF A MAJOR  BODILY  FUNCTION
OF  THE  PREGNANT  WOMAN,  AS  PROVIDED  IN  SECTION  FORTY-ONE  HUNDRED
SIXTY-FOUR-G OF THIS TITLE.
  (B) A PHYSICIAN WHO PERFORMS A MEDICAL PROCEDURE AS DESCRIBED IN  THIS
SUBDIVISION  SHALL  DECLARE,  IN  A  WRITTEN  DOCUMENT, THAT THE MEDICAL
PROCEDURE IS NECESSARY,  TO  THE  BEST  OF  THE  PHYSICIAN'S  REASONABLE
MEDICAL  JUDGMENT,  TO  PREVENT  THE  DEATH  OF THE PREGNANT WOMAN OR TO
PREVENT A SERIOUS RISK OF THE SUBSTANTIAL AND IRREVERSIBLE IMPAIRMENT OF
A MAJOR BODILY FUNCTION OF THE PREGNANT  WOMAN.  IN  THE  DOCUMENT,  THE
PHYSICIAN  SHALL SPECIFY THE PREGNANT WOMAN'S MEDICAL CONDITION THAT THE
MEDICAL PROCEDURE IS ASSERTED TO ADDRESS AND THE MEDICAL  RATIONALE  FOR
THE  PHYSICIAN'S  CONCLUSION  THAT THE MEDICAL PROCEDURE IS NECESSARY TO
PREVENT THE DEATH OF THE PREGNANT WOMAN OR TO PREVENT A SERIOUS RISK  OF
THE  SUBSTANTIAL  AND IRREVERSIBLE IMPAIRMENT OF A MAJOR BODILY FUNCTION
OF THE PREGNANT WOMAN.
  (C) A PHYSICIAN WHO PERFORMS A MEDICAL PROCEDURE AS DESCRIBED IN  THIS
SUBDIVISION  SHALL  PLACE THE WRITTEN DOCUMENT REQUIRED BY THIS SUBDIVI-
SION IN THE PREGNANT WOMAN'S MEDICAL RECORDS. FOR AT LEAST  SEVEN  YEARS
FROM  THE  DATE  THE DOCUMENT IS CREATED, THE PHYSICIAN SHALL MAINTAIN A
COPY OF THE DOCUMENT IN THE PHYSICIAN'S OWN RECORDS.
  4. THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION  SHALL  NOT  HAVE
THE  EFFECT  OF  REPEALING  OR  LIMITING ANY OTHER PROVISION OF LAW THAT
RESTRICTS OR REGULATES THE PERFORMANCE OR INDUCEMENT OF AN ABORTION BY A
PARTICULAR METHOD OR DURING A PARTICULAR STAGE OF A PREGNANCY.
  S 4164-G. MEDICAL EMERGENCY. 1. IF  A  MEDICAL  EMERGENCY  OR  MEDICAL
NECESSITY  COMPELS  THE  PERFORMANCE  OR  INDUCEMENT OF AN ABORTION, THE
PHYSICIAN WHO WILL PERFORM OR INDUCE THE ABORTION, PRIOR TO ITS PERFORM-
ANCE OR INDUCEMENT, IF POSSIBLE, SHALL INFORM THE PREGNANT WOMAN OF  THE
MEDICAL  INDICATIONS SUPPORTING THE PHYSICIAN'S JUDGMENT THAT AN IMMEDI-
ATE ABORTION IS NECESSARY.
  2. THE PROVISIONS  OF  SECTIONS  FORTY-ONE  HUNDRED  SIXTY-FOUR-D  AND
FORTY-ONE HUNDRED SIXTY-FOUR-E OF THIS TITLE SHALL NOT APPLY TO A PHYSI-
CIAN WHO PERFORMS OR INDUCES THE ABORTION IF THE PHYSICIAN BELIEVES THAT
A MEDICAL EMERGENCY EXISTS THAT PREVENTS COMPLIANCE WITH THOSE SECTIONS.
  3. ANY PHYSICIAN WHO PERFORMS OR INDUCES AN ABORTION WITHOUT THE PRIOR
SATISFACTION  OF  THE CONDITIONS SPECIFIED IN SECTIONS FORTY-ONE HUNDRED
SIXTY-FOUR-D AND FORTY-ONE HUNDRED SIXTY-FOUR-E OF THIS TITLE BECAUSE OF
A MEDICAL EMERGENCY OR MEDICAL NECESSITY SHALL MAKE WRITTEN NOTATIONS IN
THE PREGNANT WOMAN'S MEDICAL RECORDS OF THE FOLLOWING:
  (A) THE PHYSICIAN'S BELIEF THAT A MEDICAL EMERGENCY NECESSITATING  THE
ABORTION EXISTED;

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  (B)  THE  MEDICAL  CONDITION  OF  THE  PREGNANT  WOMAN THAT ASSERTEDLY
PREVENTED COMPLIANCE WITH THE PROVISIONS OF SECTIONS  FORTY-ONE  HUNDRED
SIXTY-FOUR-D AND FORTY-ONE HUNDRED SIXTY-FOUR-E OF THIS TITLE; AND
  (C) THE REASONS FOR THE CONCLUSION THAT A MEDICAL EMERGENCY OR MEDICAL
NECESSITY EXISTS.
  4.  THE PHYSICIAN SHALL MAINTAIN IN THE PHYSICIAN'S OWN RECORDS A COPY
OF THE NOTATIONS REFERRED TO IN SUBDIVISION THREE OF THIS SECTION FOR AT
LEAST SEVEN YEARS FROM THE DATE THE NOTATIONS ARE MADE.
  S 4164-H. REPORTING.  1.  A  PHYSICIAN  WHO  PERFORMS  OR  INDUCES  OR
ATTEMPTS  TO  PERFORM  OR  INDUCE  AN ABORTION ON A PREGNANT WOMAN SHALL
SUBMIT A REPORT TO THE DEPARTMENT IN ACCORDANCE WITH THE  FORMS,  RULES,
AND  REGULATIONS  ADOPTED  BY  THE  DEPARTMENT  THAT INCLUDES ALL OF THE
INFORMATION THE PHYSICIAN IS REQUIRED TO CERTIFY IN WRITING OR DETERMINE
UNDER THE PROVISIONS OF THIS TITLE. IF A PERSON OTHER THAN THE PHYSICIAN
MAKES OR MAINTAINS A RECORD AS REQUIRED ON THE PHYSICIAN'S BEHALF OR  AT
THE  PHYSICIAN'S  DIRECTION, THAT PERSON SHALL COMPLY WITH THE REPORTING
REQUIREMENTS AS IF THE PERSON WERE THE PHYSICIAN.
  2. BY SEPTEMBER THIRTIETH OF EACH YEAR, THE DEPARTMENT SHALL  ISSUE  A
PUBLIC  REPORT  THAT  PROVIDES STATISTICS FOR THE PREVIOUS CALENDAR YEAR
COMPILED FROM ALL OF THE REPORTS COVERING THAT CALENDAR  YEAR  SUBMITTED
TO  THE DEPARTMENT IN ACCORDANCE WITH THIS SECTION FOR EACH OF THE ITEMS
LISTED IN SUBDIVISION ONE OF THIS SECTION. THE REPORT SHALL ALSO PROVIDE
THE STATISTICS FOR EACH PREVIOUS CALENDAR YEAR IN  WHICH  A  REPORT  WAS
FILED  WITH THE DEPARTMENT PURSUANT TO THIS SECTION, ADJUSTED TO REFLECT
ANY ADDITIONAL INFORMATION THAT A PHYSICIAN PROVIDES TO  THE  DEPARTMENT
IN A LATE OR CORRECTED REPORT.  THE DEPARTMENT SHALL ENSURE THAT NONE OF
THE  INFORMATION  INCLUDED  IN  THE  REPORT COULD REASONABLY LEAD TO THE
IDENTIFICATION OF ANY PREGNANT WOMAN UPON WHOM AN ABORTION IS PERFORMED.
  3. THE PHYSICIAN SHALL SUBMIT THE REPORT DESCRIBED IN SUBDIVISION  ONE
OF THIS SECTION TO THE DEPARTMENT WITHIN FIFTEEN DAYS AFTER THE WOMAN IS
DISCHARGED. IF THE PHYSICIAN FAILS TO SUBMIT THE REPORT MORE THAN THIRTY
DAYS  AFTER THAT FIFTEEN-DAY DEADLINE, THE PHYSICIAN SHALL BE SUBJECT TO
A LATE FEE OF FIVE HUNDRED DOLLARS FOR EACH ADDITIONAL THIRTY-DAY PERIOD
OR PORTION OF A THIRTY-DAY PERIOD THE REPORT IS OVERDUE. A PHYSICIAN WHO
IS REQUIRED TO SUBMIT TO THE DEPARTMENT A REPORT UNDER  SUBDIVISION  ONE
OF  THIS  SECTION AND WHO HAS NOT SUBMITTED A REPORT OR HAS SUBMITTED AN
INCOMPLETE REPORT MORE THAN ONE YEAR FOLLOWING THE FIFTEEN-DAY  DEADLINE
MAY,  IN  AN ACTION BROUGHT BY THE DEPARTMENT, BE DIRECTED BY A COURT OF
COMPETENT JURISDICTION TO SUBMIT A COMPLETE  REPORT  TO  THE  DEPARTMENT
WITHIN  A  PERIOD  OF  TIME  STATED  IN  A  COURT ORDER OR BE SUBJECT TO
CONTEMPT OF COURT.
  4. NO PERSON SHALL FALSIFY ANY REPORT  REQUIRED  UNDER  THIS  SECTION.
WHOEVER  VIOLATES  THE  PROVISIONS OF THIS SECTION IS GUILTY OF ABORTION
REPORT FALSIFICATION, A CLASS A MISDEMEANOR.
  S 4164-I. DUTIES OF THE DEPARTMENT. 1. THE DEPARTMENT SHALL PUBLISH IN
ENGLISH AND IN SPANISH, IN A TYPEFACE LARGE ENOUGH TO BE  CLEARLY  LEGI-
BLE,  AND IN AN EASILY COMPREHENSIBLE FORMAT, THE FOLLOWING MATERIALS ON
THE DEPARTMENT'S WEB SITE:
  (A) MATERIALS THAT INFORM THE PREGNANT  WOMAN  ABOUT  FAMILY  PLANNING
INFORMATION, OF PUBLICLY FUNDED AGENCIES THAT ARE AVAILABLE TO ASSIST IN
FAMILY  PLANNING,  AND  OF PUBLIC AND PRIVATE AGENCIES AND SERVICES THAT
ARE AVAILABLE TO ASSIST HER THROUGH THE PREGNANCY, UPON CHILDBIRTH,  AND
WHILE  THE  CHILD  IS DEPENDENT, INCLUDING, BUT NOT LIMITED TO, ADOPTION
AGENCIES. THE MATERIALS  SHALL  BE  GEOGRAPHICALLY  INDEXED;  INCLUDE  A
COMPREHENSIVE  LIST  OF  THE  AVAILABLE  AGENCIES,  A DESCRIPTION OF THE
SERVICES  OFFERED  BY  THE  AGENCIES,  AND  THE  TELEPHONE  NUMBERS  AND

A. 3725                             8

ADDRESSES OF THE AGENCIES; AND INFORM THE PREGNANT WOMAN ABOUT AVAILABLE
MEDICAL  ASSISTANCE BENEFITS FOR PRENATAL CARE, CHILDBIRTH, AND NEONATAL
CARE AND ABOUT THE SUPPORT OBLIGATIONS OF THE FATHER OF A CHILD  WHO  IS
BORN  ALIVE. THE DEPARTMENT SHALL ENSURE THAT THE MATERIALS DESCRIBED IN
THIS PARAGRAPH ARE COMPREHENSIVE  AND  DO  NOT  DIRECTLY  OR  INDIRECTLY
PROMOTE,  EXCLUDE,  OR  DISCOURAGE  THE  USE  OF  ANY  AGENCY OR SERVICE
DESCRIBED IN THIS SUBDIVISION.
  (B) MATERIALS THAT INFORM THE PREGNANT WOMAN OF THE  PROBABLE  ANATOM-
ICAL  AND  PHYSIOLOGICAL  CHARACTERISTICS  OF  THE  ZYGOTE,  BLASTOCYTE,
EMBRYO, OR FETUS  AT  TWO-WEEK  GESTATIONAL  INCREMENTS  FOR  THE  FIRST
SIXTEEN  WEEKS OF PREGNANCY AND AT FOUR-WEEK GESTATIONAL INCREMENTS FROM
THE SEVENTEENTH WEEK OF PREGNANCY TO FULL TERM, INCLUDING  ANY  RELEVANT
INFORMATION  REGARDING  THE  TIME  AT  WHICH THE FETUS POSSIBLY WOULD BE
VIABLE. THE DEPARTMENT SHALL CAUSE THESE MATERIALS TO BE PUBLISHED  ONLY
AFTER  IT CONSULTS WITH THE MEDICAL SOCIETY OF THE STATE OF NEW YORK AND
THE NEW YORK SECTION OF THE AMERICAN COLLEGE OF OBSTETRICIANS AND  GYNE-
COLOGISTS  RELATIVE TO THE PROBABLE ANATOMICAL AND PHYSIOLOGICAL CHARAC-
TERISTICS OF A ZYGOTE, BLASTOCYTE,  EMBRYO,  OR  FETUS  AT  THE  VARIOUS
GESTATIONAL  INCREMENTS. THE MATERIALS SHALL USE LANGUAGE THAT IS UNDER-
STANDABLE BY THE AVERAGE PERSON WHO IS NOT MEDICALLY TRAINED,  SHALL  BE
OBJECTIVE  AND NONJUDGMENTAL, AND SHALL INCLUDE ONLY ACCURATE SCIENTIFIC
INFORMATION ABOUT THE ZYGOTE, BLASTOCYTE, EMBRYO, OR FETUS AT THE  VARI-
OUS  GESTATIONAL  INCREMENTS.  IF  THE MATERIALS USE A PICTORIAL, PHOTO-
GRAPHIC, OR OTHER DEPICTION TO PROVIDE INFORMATION REGARDING THE ZYGOTE,
BLASTOCYTE, EMBRYO, OR FETUS, THE MATERIALS SHALL INCLUDE, IN A CONSPIC-
UOUS MANNER, A SCALE OR OTHER EXPLANATION THAT IS UNDERSTANDABLE BY  THE
AVERAGE  PERSON AND THAT CAN BE USED TO DETERMINE THE ACTUAL SIZE OF THE
ZYGOTE, BLASTOCYTE, EMBRYO, OR FETUS AT A PARTICULAR GESTATIONAL  INCRE-
MENT  AS  CONTRASTED  WITH  THE DEPICTED SIZE OF THE ZYGOTE, BLASTOCYTE,
EMBRYO, OR FETUS AT THAT GESTATIONAL INCREMENT.
  2. UPON THE SUBMISSION OF A REQUEST TO THE DEPARTMENT BY  ANY  PERSON,
HOSPITAL,  PHYSICIAN,  OR MEDICAL FACILITY FOR ONE COPY OF THE MATERIALS
PUBLISHED IN ACCORDANCE  WITH  SUBDIVISION  ONE  OF  THIS  SECTION,  THE
DEPARTMENT  SHALL  MAKE THE REQUESTED COPY OF THE MATERIALS AVAILABLE TO
THE PERSON, HOSPITAL, PHYSICIAN, OR MEDICAL FACILITY THAT REQUESTED  THE
COPY.
  3.  THE  DEPARTMENT  SHALL  PREPARE  AND  CONDUCT A PUBLIC INFORMATION
PROGRAM TO INFORM WOMEN OF ALL AVAILABLE GOVERNMENTAL PROGRAMS AND AGEN-
CIES THAT PROVIDE SERVICES OR ASSISTANCE FOR FAMILY  PLANNING,  PRENATAL
CARE, CHILD CARE, OR ALTERNATIVES TO ABORTION.
  S  4164-J. CULPABILITY OF THE PHYSICIAN. 1. THE FAILURE OF A PHYSICIAN
TO SATISFY THE CONDITIONS OF SECTION FORTY-ONE HUNDRED  SIXTY-FOUR-D  OF
THIS  TITLE  PRIOR TO PERFORMING OR INDUCING AN ABORTION UPON A PREGNANT
WOMAN MAY BE THE BASIS OF BOTH OF THE FOLLOWING:
  (A) A CIVIL ACTION FOR COMPENSATORY AND EXEMPLARY DAMAGES AS DESCRIBED
IN SUBDIVISION TWO OF THIS SECTION;
  (B) DISCIPLINARY ACTION UNDER SUBDIVISION FIFTY OF SECTION  SIXTY-FIVE
HUNDRED THIRTY OF THE EDUCATION LAW.
  2. (A) SUBJECT TO THE PROVISIONS OF PARAGRAPH (B) OF THIS SUBDIVISION,
ANY  PHYSICIAN WHO PERFORMS OR INDUCES AN ABORTION WITH ACTUAL KNOWLEDGE
THAT THE CONDITIONS SPECIFIED IN SECTION FORTY-ONE HUNDRED  SIXTY-FOUR-D
OF THIS TITLE HAVE NOT BEEN SATISFIED OR WITH A HEEDLESS INDIFFERENCE AS
TO WHETHER THOSE CONDITIONS HAVE BEEN SATISFIED IS LIABLE IN COMPENSATO-
RY  AND EXEMPLARY DAMAGES IN A CIVIL ACTION TO ANY PERSON, OR THE REPRE-
SENTATIVE OF THE ESTATE OF ANY PERSON, WHO SUSTAINS  INJURY,  DEATH,  OR
LOSS  TO  PERSON OR PROPERTY AS A RESULT OF THE FAILURE TO SATISFY THOSE

A. 3725                             9

CONDITIONS. IN THE CIVIL ACTION, THE COURT ADDITIONALLY  MAY  ENTER  ANY
INJUNCTIVE OR OTHER EQUITABLE RELIEF THAT IT CONSIDERS APPROPRIATE.
  (B)  THE  FOLLOWING  SHALL  BE  AFFIRMATIVE DEFENSES IN A CIVIL ACTION
AUTHORIZED BY PARAGRAPH (A) OF THIS SUBDIVISION:
  (1) THE PHYSICIAN PERFORMED OR INDUCED THE ABORTION UNDER THE  CIRCUM-
STANCES  DESCRIBED  IN  SECTION  FORTY-ONE  HUNDRED SIXTY-FOUR-G OF THIS
TITLE; AND
  (2) THE PHYSICIAN MADE A GOOD FAITH EFFORT TO SATISFY  THE  CONDITIONS
SPECIFIED IN SECTION FORTY-ONE HUNDRED SIXTY-FOUR-D OF THIS TITLE.
  3.  AN EMPLOYER OR OTHER PRINCIPAL IS NOT LIABLE IN DAMAGES IN A CIVIL
ACTION AUTHORIZED BY PARAGRAPH (A) OF SUBDIVISION TWO OF THIS SECTION ON
THE BASIS OF THE DOCTRINE OF RESPONDENT SUPERIOR UNLESS  EITHER  OF  THE
FOLLOWING APPLIES:
  (A)  THE  EMPLOYER  OR OTHER PRINCIPAL HAD ACTUAL KNOWLEDGE OR, BY THE
EXERCISE OF REASONABLE DILIGENCE, SHOULD HAVE KNOWN THAT AN EMPLOYEE  OR
AGENT  PERFORMED  OR  INDUCED AN ABORTION WITH ACTUAL KNOWLEDGE THAT THE
CONDITIONS SPECIFIED IN SECTION FORTY-ONE HUNDRED SIXTY-FOUR-D  OF  THIS
TITLE  HAD  NOT  BEEN  SATISFIED  OR  WITH A HEEDLESS INDIFFERENCE AS TO
WHETHER THOSE CONDITIONS HAD BEEN SATISFIED; OR
  (B) THE EMPLOYER OR OTHER PRINCIPAL NEGLIGENTLY FAILED TO  SECURE  THE
COMPLIANCE  OF  AN  EMPLOYEE  OR  AGENT  WITH  SECTION FORTY-ONE HUNDRED
SIXTY-FOUR-D OF THIS TITLE.
  4. THE PROVISIONS OF THIS SECTION SHALL BE THE EXCLUSIVE CIVIL  REMEDY
FOR PERSONS, OR THE REPRESENTATIVES OF ESTATES OF PERSONS, WHO ALLEGEDLY
SUSTAIN  INJURY,  DEATH,  OR LOSS TO PERSON OR PROPERTY AS A RESULT OF A
FAILURE TO SATISFY THE CONDITIONS SPECIFIED IN SECTION FORTY-ONE HUNDRED
SIXTY-FOUR-D OF THIS TITLE.
  S 4164-K. CULPABILITY OF THE PREGNANT WOMAN. A PREGNANT WOMAN ON  WHOM
AN  ABORTION  IS  PERFORMED OR INDUCED IN VIOLATION OF THE PROVISIONS OF
THIS TITLE IS NOT GUILTY OF VIOLATING ANY OF THOSE  PROVISIONS;  IS  NOT
GUILTY  OF  ATTEMPTING TO COMMIT, CONSPIRING TO COMMIT, OR COMPLICITY IN
COMMITTING A VIOLATION OF ANY OF THOSE PROVISIONS; AND IS NOT SUBJECT TO
A CIVIL PENALTY BASED ON THE ABORTION  BEING  PERFORMED  OR  INDUCED  IN
VIOLATION OF ANY OF THOSE PROVISIONS.
  S  4164-L.  CIVIL  ACTION. 1. A WOMAN WHO MEETS ANY ONE OR MORE OF THE
FOLLOWING CRITERIA MAY FILE A CIVIL ACTION FOR THE WRONGFUL DEATH OF HER
UNBORN CHILD:
  (A) A WOMAN ON WHOM AN ABORTION WAS PERFORMED OR INDUCED IN  VIOLATION
OF  THE  PROVISIONS  OF  SUBDIVISION  TWO  OF  SECTION FORTY-ONE HUNDRED
SIXTY-FOUR-C  OR  SUBDIVISION   TWO   OF   SECTION   FORTY-ONE   HUNDRED
SIXTY-FOUR-F OF THIS TITLE;
  (B)  A  WOMAN ON WHOM AN ABORTION WAS PERFORMED OR INDUCED WHO WAS NOT
GIVEN THE INFORMATION DESCRIBED IN PARAGRAPHS (A) AND (B) OF SUBDIVISION
ONE OF SECTION FORTY-ONE HUNDRED SIXTY-FOUR-E OF THIS TITLE OR  WHO  DID
NOT SIGN A FORM DESCRIBED IN PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION
FORTY-ONE HUNDRED SIXTY-FOUR-E OF THIS TITLE.
  2.  A  WOMAN  WHO PREVAILS IN AN ACTION FILED UNDER SUBDIVISION ONE OF
THIS SECTION SHALL RECEIVE BOTH OF THE FOLLOWING  FROM  THE  PERSON  WHO
COMMITTED  THE  ONE  OR  MORE  ACTS DESCRIBED IN SUBDIVISION ONE OF THIS
SECTION:
  (A) DAMAGES IN AN AMOUNT EQUAL TO TEN THOUSAND DOLLARS  OR  AN  AMOUNT
DETERMINED  BY THE TRIER OF FACT AFTER CONSIDERATION OF THE EVIDENCE (AT
THE MOTHER'S ELECTION AT ANY TIME PRIOR TO FINAL  JUDGMENT)  SUBJECT  TO
THE  SAME  DEFENSES AND REQUIREMENTS OF PROOF, EXCEPT ANY REQUIREMENT OF
LIVE BIRTH, AS WOULD APPLY TO A SUIT FOR THE WRONGFUL DEATH OF  A  CHILD
WHO HAD BEEN BORN ALIVE; AND

A. 3725                            10

  (B) COURT COSTS AND REASONABLE ATTORNEY'S FEES.
  3.  IF  THE DEFENDANT IN AN ACTION FILED UNDER SUBDIVISION ONE OF THIS
SECTION PREVAILS AND THE COURT FINDS THE ACTION  TO  BE  FRIVOLOUS,  THE
COURT SHALL AWARD THE DEFENDANT REASONABLE ATTORNEY'S FEES IN ACCORDANCE
WITH  SECTION EIGHTY-THREE HUNDRED THREE-A OF THE CIVIL PRACTICE LAW AND
RULES.
  S 3. Section 6530 of the education law is  amended  by  adding  a  new
subdivision 50 to read as follows:
  (50)  FAILURE  TO COMPLY WITH ANY OF THE REQUIREMENTS REGARDING MAKING
OR MAINTAINING MEDICAL RECORDS OR DOCUMENTS DESCRIBED IN SUBDIVISION ONE
OF SECTION FORTY-ONE HUNDRED SIXTY-FOUR-C, SUBDIVISIONS ONE AND THREE OF
SECTION FORTY-ONE HUNDRED SIXTY-FOUR-F OR SUBDIVISION THREE  OF  SECTION
FORTY-ONE HUNDRED SIXTY-FOUR-G OF THE PUBLIC HEALTH LAW.
  S  4.  The penal law is amended by adding a new section 125.41 to read
as follows:
S 125.41 ABORTION IN THE THIRD DEGREE.
  A PERSON IS GUILTY OF ABORTION IN THE THIRD  DEGREE  WHEN  HE  OR  SHE
COMMITS  AN ABORTIONAL ACT UPON A FEMALE, BEFORE DETERMINING WHETHER THE
UNBORN HUMAN INDIVIDUAL THE PREGNANT FEMALE IS CARRYING HAS A DETECTABLE
HEARTBEAT, AS PROVIDED IN TITLE  FIVE-B  OF  ARTICLE  FORTY-ONE  OF  THE
PUBLIC HEALTH LAW.
  ABORTION IN THE THIRD DEGREE IS A CLASS E FELONY.
  S  5.  a.  There  is hereby created the joint legislative committee on
adoption promotion and support. The committee may review  or  study  any
matter that it considers relevant to the operation of the adoption proc-
ess  in  New  York,  with priority given to the study or review of mech-
anisms to enhance the effectiveness and awareness of the process.
  b. The committee shall  consist  of  three  members  of  the  assembly
appointed by the speaker of the assembly and three members of the senate
appointed  by  the  temporary president of the senate. Not more than two
members appointed by the speaker of the assembly and not more  than  two
members appointed by the temporary president of the senate may be of the
same  political  party.  Each  member of the committee shall hold office
during the legislative session in which  the  member  is  appointed  and
until a successor has been appointed, notwithstanding the adjournment of
the  session  in which the member was appointed or the expiration of the
member's term as a member of the legislature.  Any  vacancies  occurring
among  the members of the committee shall be filled in the manner of the
original appointment.
  c. The committee shall have the  same  powers  as  other  standing  or
select committees of the legislature.
  S  6.  a.  A  court  judgment  or  order suspending enforcement of any
provision of this act shall not to be regarded as tantamount  to  repeal
of that provision.
  b. After the issuance of a decision by the supreme court of the United
States  overruling ROE V. WADE, 410 U.S. 113 (1973), the issuance of any
other court order or judgment restoring, expanding,  or  clarifying  the
authority  of  states  to  prohibit  or regulate abortion entirely or in
part, or the effective date of an amendment to the Constitution  of  the
United  States  restoring,  expanding,  or  clarifying  the authority of
states to prohibit or regulate abortion entirely or in part, the  attor-
ney general may apply to the pertinent state or federal court for either
or both of the following:
  (1)  A  declaration  that  any  one or more provisions of this act are
constitutional;

A. 3725                            11

  (2) A judgment or order lifting an injunction against the  enforcement
of any one or more provisions of this act.
  c.  If the attorney general fails to apply for the relief described in
this section within the thirty-day period after  the  occurrence  of  an
event  described in subdivision b of this section, any county prosecutor
may apply to the appropriate state or federal court for such relief.
  S 7. The commissioner of the department of health  is  authorized  and
directed  to promulgate all rules and regulations he or she deems neces-
sary and appropriate to implement the  provisions  of  this  act  on  or
before its effective date, including, but not limited to:
  a.  rules  specifying the appropriate methods of determining the pres-
ence of a fetal heartbeat of an  unborn  individual  based  on  standard
medical practice; and
  b.  information  required  to  be  submitted by a physician performing
abortions to the department of health.
  S 8. Severability. If any clause, sentence, paragraph, section or part
of this act shall be adjudged by any court of competent jurisdiction  to
be  invalid  and  after  exhaustion  of all further judicial review, the
judgment shall not affect, impair or invalidate the  remainder  thereof,
but  shall  be  confined in its operation to the clause, sentence, para-
graph, section or part of this act directly involved in the  controversy
in which the judgment shall have been rendered.
  S  9. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.