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

                                  2357

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 15, 2009
                               ___________

Introduced  by M. of A. REILICH, KOLB, FINCH, RABBITT -- Multi-Sponsored
  by -- M. of A.   ERRIGO,  FITZPATRICK,  McDONOUGH  --  read  once  and
  referred to the Committee on Health

AN  ACT  to  amend  the  public  health law and the family court act, in
  relation to notice of abortions performed on unemancipated minors

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

  Section  1. Legislative purpose and findings. It is the intent of this
legislature in enacting this parental notice provision  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 chil-
dren who are members of their household, and protecting  the  health  of
minor children.
  The  legislature  finds that 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 psycholog-
ical consequences of abortion are serious and can  be  lasting,  partic-
ularly  when the patient is immature. The legislature further finds that
the capacity to become pregnant and the  capacity  for  mature  judgment
concerning  the  wisdom  of an abortion are not necessarily related. The
legislature finds that parents ordinarily possess information  essential
to  a  physician's  exercise of his best medical judgment concerning the
child and, further, that 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.
  S 2. The public health law is amended by adding a new section 2507  to
read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04356-01-9

              

A. 2357                             2

  S  2507.  NOTIFICATION OF ABORTIONS ON UNEMANCIPATED MINORS.  1. DEFI-
NITIONS. FOR THE PURPOSES OF THIS  SECTION,  THE  FOLLOWING  DEFINITIONS
WILL APPLY:
  (A)  "UNEMANCIPATED MINOR" MEANS A PERSON WHO HAS NOT ATTAINED THE AGE
OF EIGHTEEN YEARS AND IS NOT AN EMANCIPATED MINOR AS  DEFINED  IN  PARA-
GRAPH (B) OF THIS SUBDIVISION.
  (B)  "EMANCIPATED  MINOR"  MEANS  A  MINOR 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.
  (C)  "ABORTION" MEANS THE USE OF ANY INSTRUMENT, MEDICINE, DRUG OR ANY
OTHER SUBSTANCE OR DEVICE WITH INTENT TO TERMINATE THE  PREGNANCY  OF  A
WOMAN KNOWN TO BE PREGNANT WITH INTENT OTHER THAN TO INCREASE THE PROBA-
BILITY  OF  A  LIVE  BIRTH,  TO PRESERVE THE LIFE OR HEALTH OF THE CHILD
AFTER LIVE BIRTH, OR TO REMOVE A DEAD FETUS.
  (D) "MEDICAL EMERGENCY" MEANS THAT CONDITION WHICH, ON  THE  BASIS  OF
THE PHYSICIAN'S GOOD FAITH CLINICAL JUDGMENT, SO COMPLICATES THE MEDICAL
CONDITION OF THE PREGNANT MINOR AS TO NECESSITATE THE IMMEDIATE ABORTION
OF HER PREGNANCY TO AVERT HER DEATH OR FOR WHICH DELAY WILL CREATE SERI-
OUS  RISK  OF  SUBSTANTIAL AND IRREVERSIBLE IMPAIRMENT OF A MAJOR BODILY
FUNCTION.
  2. NOTIFICATION  CONCERNING  ABORTION.  NO  PERSON  SHALL  PERFORM  AN
ABORTION  UPON  AN  UNEMANCIPATED  MINOR  UNLESS HE OR SHE OR HIS OR HER
AGENT HAS GIVEN AT LEAST FORTY-EIGHT HOURS WRITTEN NOTICE TO A CUSTODIAL
PARENT WITH WHOM THE MINOR RESIDES OR TO THE LEGAL GUARDIAN OF THE PREG-
NANT MINOR OF HIS OR HER INTENTION TO PERFORM THE ABORTION OR UNLESS  HE
OR  SHE  OR  HIS  OR  HER AGENT HAS RECEIVED A WRITTEN STATEMENT OR ORAL
COMMUNICATION, BY ANOTHER PHYSICIAN, HEREINAFTER CALLED  THE  "REFERRING
PHYSICIAN", CERTIFYING THAT THE REFERRING PHYSICIAN HAS EFFECTUATED SUCH
NOTICE.  IF THE MINOR'S PARENTS ARE DIVORCED OR LEGALLY SEPARATED, AND A
CUSTODIAL PARENT WITH WHOM THE MINOR RESIDES IS  NOT  AVAILABLE  TO  THE
PERSON  PERFORMING  THE ABORTION OR THE REFERRING PHYSICIAN IN A REASON-
ABLE TIME OR MANNER, THEN THE NOTICE TO A NON-CUSTODIAL PARENT OR TO THE
PARENT WHO IS AVAILABLE SHALL BE SUFFICIENT.
  (A) THE WRITTEN NOTICE 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 PARAGRAPH (A) OF THIS SUBDIVI-
SION,  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 12:00 O'CLOCK NOON ON THE THIRD
DAY AFTER MAILING.
  3. WAIVER OF NOTICE. NO NOTICE SHALL BE REQUIRED  UNDER  THIS  SECTION
IF:
  (A)  THE ATTENDING PHYSICIAN CERTIFIES IN THE PREGNANT MINOR'S MEDICAL
RECORD THAT A MEDICAL EMERGENCY EXISTS; OR
  (B) THE PERSON OR PERSONS WHO ARE ENTITLED TO NOTICE CERTIFY IN  WRIT-
ING THAT THEY HAVE BEEN NOTIFIED; OR
  (C)  THE MINOR OBJECTS TO NOTICE BEING GIVEN HER CUSTODIAL PARENT WITH
WHOM THE MINOR RESIDES OR LEGAL GUARDIAN AND OBTAINS AN ORDER ISSUED  BY
A  JUDGE  OF THE FAMILY COURT AS PROVIDED IN ARTICLE TEN-A OF THE FAMILY
COURT ACT, OR BY ANY OTHER JUDGE OR JUSTICE OF THIS STATE HAVING  JURIS-
DICTION, DISPENSING WITH SUCH NOTICE.
  4.  COERCION  PROHIBITED.  NO  PARENT,  GUARDIAN OR OTHER PERSON SHALL
COERCE A MINOR TO UNDERGO AN ABORTION. ANY MINOR WHO IS THREATENED  WITH
SUCH COERCION MAY APPLY TO A COURT OF COMPETENT JURISDICTION FOR RELIEF.

A. 2357                             3

THE  COURT  SHALL  PROVIDE THE MINOR WITH COUNSEL, GIVE THE MATTER EXPE-
DITED 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.
  5.  PENALTIES.  ANY PERSON WHO INTENTIONALLY PERFORMS AN ABORTION WITH
KNOWLEDGE THAT, OR WITH RECKLESS DISREGARD AS  TO  WHETHER,  THE  PERSON
UPON WHOM THE ABORTION IS TO BE PERFORMED IS AN UNEMANCIPATED MINOR, AND
WHO INTENTIONALLY OR KNOWINGLY VIOLATES THE REQUIREMENTS OF THIS SECTION
SHALL  BE  GUILTY OF A MISDEMEANOR. IN ADDITION, ANY PERSON WHO PERFORMS
AN ABORTION UPON ANOTHER IN VIOLATION OF THIS SECTION SHALL  BE  SUBJECT
TO  CIVIL  LIABILITY.  HOWEVER,  A PERSON SHALL NOT BE HELD LIABLE UNDER
THIS SECTION IF THE PERSON ESTABLISHES  BY  WRITTEN  EVIDENCE  THAT  THE
PERSON  RELIED  UPON EVIDENCE SUFFICIENT TO CONVINCE A REASONABLE PERSON
THAT THE REPRESENTATIONS OF THE  PREGNANT  MINOR  REGARDING  INFORMATION
NECESSARY  TO COMPLY WITH THIS SECTION ARE BONA FIDE AND TRUE, OR IF THE
PERSON HAS ATTEMPTED WITH REASONABLE DILIGENCE TO  DELIVER  NOTICE,  BUT
HAS BEEN UNABLE TO DO SO.
  S  3. Paragraph (viii) of subdivision (a) of section 213 of the family
court act, as amended by chapter 920 of the laws of 1982, is amended and
a new paragraph (ix) is added to read as follows:
  (viii) the number, nature and disposition  of  cases  involving  child
abuse  under  article  ten  of  this  act, including total number of new
cases, their nature, whether heard by the child abuse part, the age  and
sex  of  the  children  involved,  the type of petitioner, the number of
children temporarily removed both before and after the filing of a peti-
tion, the length of time and number of adjournments between  the  filing
of a petition and the fact-finding hearing, the number of cases that are
dismissed,  withdrawn, sustained and admitted to, the length of time and
number of adjournments between the fact-finding hearing and the disposi-
tional hearing, and the final disposition of such cases[.];
  (IX) THE NUMBER AND DISPOSITION OF CASES UNDER ARTICLE TEN-B  OF  THIS
ACT,  INCLUDING  THE  TOTAL  NUMBER  OF  NEW CASES, THE AGE OF THE MINOR
INVOLVED, WHETHER THE ORDERS  REGARDING  NOTIFICATION  WERE  BASED  UPON
FINDINGS  EITHER  THAT  THE  MINORS  WERE  MATURE  MINORS, AS DEFINED IN
SECTION ONE THOUSAND NINETY-SIX OF THIS ACT OR THAT  THE  ABORTIONS,  AS
DEFINED  IN  SECTION TWENTY-FIVE HUNDRED SEVEN OF THE PUBLIC HEALTH LAW,
WERE IN THE BEST INTERESTS OF THE MINORS.
  S 4. The family court act is amended by adding a new article  10-B  to
read as follows:
                              ARTICLE 10-B
             PROCEEDING TO OBTAIN AN ORDER WAIVING PARENTAL
                       NOTIFICATION OF AN ABORTION
SECTION 1095. PURPOSES.
        1096. DEFINITIONS.
        1097. JURISDICTION.
        1098. PROCEDURE.
  S  1095. PURPOSES. THIS ARTICLE IS INTENDED TO ESTABLISH PROCEDURES TO
IMPLEMENT THE PROVISIONS CONTAINED IN SECTION TWENTY-FIVE HUNDRED  SEVEN
OF THE PUBLIC HEALTH LAW.
  S  1096.  DEFINITIONS.  WHEN USED IN THIS ARTICLE, THE TERM "ABORTION"
SHALL HAVE THE SAME MEANING AS IS ASCRIBED TO IT  IN  PARAGRAPH  (C)  OF
SUBDIVISION  ONE  OF  SECTION  TWENTY-FIVE  HUNDRED  SEVEN OF THE PUBLIC
HEALTH LAW AND THE TERM "MATURE MINOR" SHALL MEAN A PERSON UNDER THE AGE
OF EIGHTEEN WHO HAS NOT BEEN EMANCIPATED AS DEFINED IN PARAGRAPH (B)  OF
SUBDIVISION  ONE  OF  SECTION  TWENTY-FIVE  HUNDRED  SEVEN OF THE PUBLIC

A. 2357                             4

HEALTH LAW AND WHO IS ABLE TO MAKE AN INFORMED, REASONED AND  CONSIDERED
JUDGMENT  IN  CONNECTION  WITH A DECISION WHETHER OR NOT TO PROCEED WITH
THE ABORTION.
  S  1097.  JURISDICTION. THE FAMILY COURT HAS EXCLUSIVE ORIGINAL JURIS-
DICTION OVER PROCEEDINGS UNDER THIS ARTICLE TO OBTAIN AN  ORDER  WAIVING
PARENTAL NOTIFICATION OF AN ABORTION.
  S 1098. PROCEDURE. NOTWITHSTANDING ANY OTHER PROVISION OF LAW:
  1. THE WAIVER OF PARENTAL NOTIFICATION TO AN ABORTION UPON OR WITH THE
RESPECT TO AN UNEMANCIPATED MINOR MAY BE OBTAINED BY ORDER OF A JUDGE OF
THE  FAMILY  COURT  IN THE COUNTY WHERE SUCH PERSON RESIDES OR IF SHE IS
NOT A RESIDENT OF THIS STATE, IN THE COUNTY WHERE THE ABORTION IS TO  BE
PERFORMED, ON APPLICATION BY SUCH PERSON OR BY A RELATIVE OF SUCH PERSON
OR OTHER INTERESTED PARTY.
  2.  SUCH  COURT  PROCEEDINGS  SHALL  BE  COMMENCED EX PARTE AND MAY BE
COMMENCED AND CONTINUED WITHOUT THE PAYMENT OF ANY FEES. THE COURT SHALL
ADVISE THE MINOR THAT SHE HAS A RIGHT  TO  COURT-APPOINTED  COUNSEL  AND
SHALL PROVIDE HER WITH SUCH COUNSEL UPON HER REQUEST.
  3. SUCH APPLICATION SHALL BE GIVEN IMMEDIATE CONSIDERATION AND A HEAR-
ING  SHALL  BE HELD IMMEDIATELY AT WHICH THE PERSON UPON OR WITH RESPECT
TO WHOM THE ABORTION IS TO BE PERFORMED  SHALL  BE  PRESENT.  THE  COURT
SHALL  ISSUE WRITTEN AND SPECIFIC FACTUAL FINDINGS AND LEGAL CONCLUSIONS
SUPPORTING ITS DECISION AND SHALL ORDER THAT A  CONFIDENTIAL  RECORD  OF
THE  EVIDENCE BE MAINTAINED. ALL PROCEEDINGS WITH RESPECT TO SUCH APPLI-
CATION, INCLUDING AN APPEAL THEREFROM, SHALL PROTECT  THE  ANONYMITY  OF
THE  MINOR.  SAID  PROCEEDINGS  SHALL  BE SEALED, AND NO PERSON SHALL BE
ALLOWED ACCESS TO SUCH SEALED RECORDS EXCEPT UPON AN ORDER OF A JUDGE OF
THE COURT IN WHICH THE APPLICATION WAS PROCESSED OR OF A JUSTICE OF  THE
SUPREME  COURT  OF  THE  JUDICIAL  DISTRICT,  AND NO SUCH ORDER SHALL BE
GRANTED EXCEPT ON GOOD CAUSE SHOWN.
  4. AN ORDER SHALL ISSUE ONLY UPON FINDING BY THE COURT (A)  THAT  SUCH
PERSON  PRESENTLY  DESIRES  TO  SUBMIT  TO  SUCH ABORTION; (B) THAT SUCH
PERSON IS EITHER A MATURE MINOR OR THAT SUCH ABORTION  IS  IN  THE  BEST
INTEREST  OF  SUCH  PERSON; AND (C) THAT A PREVIOUS APPLICATION FOR SUCH
ORDER HAS NOT BEEN MADE AND DENIED UPON THE SAME GROUNDS. IF  THE  COURT
SO FINDS, THE ORDER MUST ISSUE.
  5.  IN  THE  EVENT  THAT  THE COURT SHALL DENY THE APPLICATION FOR THE
ORDER, AN EXPEDITED ANONYMOUS APPEAL SHALL BE AVAILABLE TO  SUCH  APPLI-
CANT  TO  THE  APPELLATE  DIVISION  OF THE SUPREME COURT OF THE JUDICIAL
DEPARTMENT IN WHICH THE COURT WHICH RENDERED THE  DECISION  IS  LOCATED.
THE  NOTICE  OF INTENT TO APPEAL SHALL BE FILED WITHIN TWENTY-FOUR HOURS
FROM THE DATE OF ISSUANCE OF THE ORDER. THE RECORD ON  APPEAL  SHALL  BE
COMPLETED  AND  THE  APPEAL SHALL BE PERFECTED WITHIN FIVE DAYS FROM THE
FILING OF THE NOTICE TO APPEAL.   BECAUSE TIME MAY  BE  OF  THE  ESSENCE
REGARDING  THE  PERFORMANCE OF THE ABORTION, THE SUPREME COURT SHALL, BY
COURT RULE, PROVIDE FOR EXPEDITED APPELLATE  REVIEW  OF  CASES  APPEALED
UNDER THIS SECTION.
  6. THE SUPREME COURT SHALL PROMULGATE ANY RULES AND REGULATIONS NECES-
SARY  TO  ENSURE  THAT  PROCEEDINGS UNDER THIS SECTION ARE HANDLED IN AN
EXPEDITIOUS AND ANONYMOUS MANNER.
  7. THE SUPREME COURT, IN ITS DISCRETION,  MAY  ISSUE  SUCH  OTHER  AND
FURTHER LAWFUL ORDERS AS IT DEEMS NECESSARY TO PROTECT SUCH PERSON.
  S  5.  Separability.  If any clause, sentence, section or part of this
act shall be adjudged by any  court  of  competent  jurisdiction  to  be
invalid,  such  judgment  shall  not  affect,  impair  or invalidate the
remainder thereof, but shall be confined in its operation to the clause,

A. 2357                             5

sentence, paragraph, section or part thereof directly  involved  in  the
controversy in which such judgment shall have been rendered.
  S  6.  This  act shall take effect on the ninetieth day after it shall
have become a law.