S T A T E O F N E W Y O R K
________________________________________________________________________
11484
I N A S S E M B L Y
June 17, 2010
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Glick, Gott-
fried, Rosenthal, Peoples-Stokes, N. Rivera, Pretlow, Hooper, Silver,
Heastie, Koon, Lifton, Wright, Cahill, Gianaris, Barron, Bing,
Boyland, Brennan, Brodsky, Cymbrowitz, Dinowitz, Englebright, Farrell,
Fields, Galef, Hoyt, Jacobs, Jaffee, John, Kellner, Lavine, Millman,
O'Donnell, Paulin, Powell, Russell, Sayward, Scarborough, Schimel,
Thiele, Weinstein, Weisenberg, D. Weprin) -- (at request of the Gover-
nor) -- read once and referred to the Committee on Health
AN ACT to amend the public health law, in relation to enacting the
"reproductive health act" and revising existing provisions regarding
abortions; to amend the penal law, the criminal procedure law, the
county law and the judiciary law, in relation to abortion; to repeal
certain provisions of the education law relating to the sale of
contraceptives; and to repeal certain provisions of the penal law
relating to abortion
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. This act shall be known and may be cited as the "Reproduc-
tive Health Act".
S 2. The public health law is amended by adding a new article 17 to
read as follows:
ARTICLE 17
REPRODUCTIVE HEALTH ACT
SECTION 1700. STATEMENT OF POLICY.
1701. AUTHORIZED PERFORMANCE OF ABORTIONS.
1702. STATE REGULATION.
1703. DEFINITIONS.
S 1700. STATEMENT OF POLICY. THE LEGISLATURE DECLARES THAT EVERY INDI-
VIDUAL HAS A FUNDAMENTAL RIGHT OF PRIVACY WITH RESPECT TO CERTAIN
PERSONAL REPRODUCTIVE DECISIONS. ACCORDINGLY, IT IS THE PUBLIC POLICY
OF THE STATE OF NEW YORK THAT:
1. EVERY INDIVIDUAL HAS THE FUNDAMENTAL RIGHT TO CHOOSE OR REFUSE
CONTRACEPTION; AND
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD12005-08-9
A. 11484 2
2. EVERY FEMALE HAS THE FUNDAMENTAL RIGHT TO DETERMINE THE COURSE OF
HER PREGNANCY, WHICH INCLUDES THE RIGHT TO CARRY A PREGNANCY TO TERM OR
TO TERMINATE A PREGNANCY: (I) IN THE ABSENCE OF FETAL VIABILITY; AND
(II) AT ANY TIME IF SUCH TERMINATION IS NECESSARY TO PROTECT THE PREG-
NANT FEMALE'S LIFE OR HEALTH.
S 1701. AUTHORIZED PERFORMANCE OF ABORTIONS. THE PERFORMANCE OF AN
ABORTION BY A QUALIFIED, LICENSED HEALTH CARE PRACTITIONER, ACTING WITH-
IN THE SCOPE OF HIS OR HER PRACTICE, IS AUTHORIZED:
1. IN THE ABSENCE OF FETAL VIABILITY; AND
2. AT ANY TIME, IF IN THE GOOD FAITH MEDICAL JUDGMENT OF A PHYSICIAN,
SUCH TERMINATION IS NECESSARY TO PROTECT THE FEMALE'S LIFE OR HEALTH.
S 1702. STATE REGULATION. 1. THE STATE SHALL NOT DENY, REGULATE OR
RESTRICT THE RIGHTS SET FORTH IN SECTION SEVENTEEN HUNDRED OF THIS ARTI-
CLE BY ANY LAW, ORDINANCE, REGULATION OR POLICY EXCEPT BY LAW, REGU-
LATION OR POLICY THAT IS NARROWLY TAILORED TO SERVE A COMPELLING STATE
INTEREST AND EXCEPT AS SET FORTH IN SUBDIVISION THREE OF THIS SECTION.
2. THE STATE SHALL NOT DISCRIMINATE AGAINST THE EXERCISE OF THE RIGHTS
SET FORTH IN SECTION SEVENTEEN HUNDRED OF THIS ARTICLE IN THE REGULATION
OR PROVISION OF BENEFITS, FACILITIES, SERVICES OR INFORMATION.
3. NOTHING IN THIS ARTICLE SHALL PROHIBIT THE ENFORCEMENT OF GENERALLY
APPLICABLE STATUTES, RULES OF LAW AND REGULATIONS GOVERNING MATTERS SUCH
AS PRACTITIONER LICENSING, PHARMACEUTICALS AND MEDICAL DEVICES, AND
MEDICAL PROCEDURES.
4. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO CONFLICT WITH ANY
APPLICABLE STATE OR FEDERAL LAW OR REGULATION PERMITTING A HEALTH CARE
PROVIDER TO REFRAIN FROM PROVIDING ABORTIONS DUE TO THE PROVIDER'S RELI-
GIOUS OR MORAL BELIEFS.
S 1703. DEFINITIONS. THE FOLLOWING DEFINITIONS SHALL APPLY FOR
PURPOSES OF THIS ARTICLE:
1. "ABORTION" MEANS THE TERMINATION OF A PREGNANCY FOR PURPOSES OTHER
THAN PRODUCING A LIVE BIRTH, WHICH INCLUDES BUT IS NOT LIMITED TO A
TERMINATION USING PHARMACOLOGICAL AGENTS. ABORTION DOES NOT INCLUDE THE
TERMINATION OF AN ECTOPIC PREGNANCY.
2. "CONTRACEPTION" MEANS ANY DRUG OR DEVICE APPROVED BY THE UNITED
STATES FOOD AND DRUG ADMINISTRATION FOR THE PURPOSE OF PREVENTING PREG-
NANCY.
3. "GESTATIONAL AGE" MEANS THE TIME THAT HAS ELAPSED SINCE THE FIRST
DAY OF THE PREGNANT FEMALE'S LAST MENSTRUAL PERIOD.
4. "PREGNANCY" MEANS THE HUMAN REPRODUCTIVE PROCESS, BEGINNING WITH
THE IMPLANTATION OF A FERTILIZED EGG.
5. "STATE" MEANS THE STATE OF NEW YORK AND EVERY COUNTY, CITY, TOWN,
MUNICIPAL CORPORATION, OR QUASI-MUNICIPAL CORPORATION OF THE STATE,
INCLUDING GOVERNMENTAL AND POLITICAL SUBDIVISIONS, AGENCIES AND INSTRU-
MENTALITIES.
6. "FETAL VIABILITY" MEANS THE POINT IN PREGNANCY WHEN, AS DETERMINED
BY A PHYSICIAN OR OTHER QUALIFIED PRACTITIONER ACTING IN GOOD FAITH
WITHIN THE SCOPE OF HIS OR HER PRACTICE IN ACCORDANCE WITH GENERALLY
ACCEPTED MEDICAL STANDARDS APPLIED TO THE PARTICULAR FACTS OF THE CASE
BEFORE THAT PRACTITIONER: (A) THE GESTATIONAL AGE OF THE FETUS IS TWEN-
TY-FOUR WEEKS OR MORE, AND (B) THERE IS A REASONABLE LIKELIHOOD OF THE
FETUS'S SUSTAINED SURVIVAL OUTSIDE THE UTERUS WITHOUT THE APPLICATION OF
EXTRAORDINARY MEDICAL MEASURES.
S 3. Subdivision 1 of section 4164 of the public health law, as added
by chapter 991 of the laws of 1974, is amended to read as follows:
1. [When an abortion is to be performed after the twelfth week of
pregnancy it shall be performed only in a hospital and only on an in-pa-
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tient basis.] When an abortion is to be performed after [the twentieth
week of pregnancy,] FETAL VIABILITY, AS THAT TERM IS DEFINED BY SUBDIVI-
SION SIX OF SECTION SEVENTEEN HUNDRED THREE OF THIS CHAPTER, IT SHALL BE
PERFORMED BY A PHYSICIAN IN A FACILITY WHICH IS LICENSED BY THE DEPART-
MENT PURSUANT TO ARTICLE TWENTY-EIGHT OF THIS CHAPTER AND a physician
other than the physician performing the abortion shall be in attendance
to take control of and to provide immediate medical care for any live
birth that is the result of the abortion, PROVIDED, HOWEVER, THAT AN
ABORTION SHALL NOT BE DELAYED FOR THE PURPOSE OF SECURING SUCH SECOND
PHYSICIAN'S ATTENDANCE IF, IN THE JUDGMENT OF THE PHYSICIAN PERFORMING
THE ABORTION, SUCH DELAY WOULD POSE A RISK TO THE FEMALE'S LIFE OR
HEALTH. The commissioner of health is authorized to promulgate rules
and regulations to insure the health and safety of the mother and the
[viable child] LIVE BIRTH, in such instances.
S 4. Subdivision 8 of section 6811 of the education law is REPEALED.
S 5. Sections 125.40, 125.45, 125.50, 125.55 and 125.60 of the penal
law are REPEALED, and the article heading of article 125 of the penal
law is amended to read as follows:
HOMICIDE[, ABORTION] AND RELATED OFFENSES
S 6. Section 125.00 of the penal law is amended to read as follows:
S 125.00 Homicide defined.
Homicide means conduct which causes the death of a person [or an
unborn child with which a female has been pregnant for more than twen-
ty-four weeks] under circumstances constituting murder, manslaughter in
the first degree, manslaughter in the second degree, OR criminally
negligent homicide[, abortion in the first degree or self-abortion in
the first degree].
S 7. Section 125.05 of the penal law, subdivision 3 as amended by
chapter 127 of the laws of 1970, is amended to read as follows:
S 125.05 Homicide[, abortion] and related offenses; [definitions of
terms] PERSON DEFINED.
[The following definitions are applicable to this article:
1. "Person,"] FOR THE PURPOSES OF THIS ARTICLE, THE TERM "PERSON,"
when referring to the victim of a homicide, means a human being who has
been born and is alive.
[2. "Abortional act" means an act committed upon or with respect to a
female, whether by another person or by the female herself, whether she
is pregnant or not, whether directly upon her body or by the administer-
ing, taking or prescription of drugs or in any other manner, with intent
to cause a miscarriage of such female.
3. "Justifiable abortional act." An abortional act is justifiable when
committed upon a female with her consent by a duly licensed physician
acting (a) under a reasonable belief that such is necessary to preserve
her life, or, (b) within twenty-four weeks from the commencement of her
pregnancy. A pregnant female's commission of an abortional act upon
herself is justifiable when she acts upon the advice of a duly licensed
physician (1) that such act is necessary to preserve her life, or, (2)
within twenty-four weeks from the commencement of her pregnancy. The
submission by a female to an abortional act is justifiable when she
believes that it is being committed by a duly licensed physician, acting
under a reasonable belief that such act is necessary to preserve her
life, or, within twenty-four weeks from the commencement of her pregnan-
cy.]
S 8. Section 125.15 of the penal law is amended to read as follows:
S 125.15 Manslaughter in the second degree.
A person is guilty of manslaughter in the second degree when:
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1. He recklessly causes the death of another person; or
2. [He commits upon a female an abortional act which causes her death,
unless such abortional act is justifiable pursuant to subdivision three
of section 125.05; or
3.] He intentionally causes or aids another person to commit suicide.
Manslaughter in the second degree is a class C felony.
S 9. Section 125.20 of the penal law, subdivision 3 as amended and
subdivision 4 as added by chapter 477 of the laws of 1990, is amended to
read as follows:
S 125.20 Manslaughter in the first degree.
A person is guilty of manslaughter in the first degree when:
1. With intent to cause serious physical injury to another person, he
causes the death of such person or of a third person; or
2. With intent to cause the death of another person, he causes the
death of such person or of a third person under circumstances which do
not constitute murder because he acts under the influence of extreme
emotional disturbance, as defined in paragraph (a) of subdivision one of
section 125.25. The fact that homicide was committed under the influence
of extreme emotional disturbance constitutes a mitigating circumstance
reducing murder to manslaughter in the first degree and need not be
proved in any prosecution initiated under this subdivision; or
3. [He commits upon a female pregnant for more than twenty-four weeks
an abortional act which causes her death, unless such abortional act is
justifiable pursuant to subdivision three of section 125.05; or
4.] Being eighteen years old or more and with intent to cause physical
injury to a person less than eleven years old, the defendant recklessly
engages in conduct which creates a grave risk of serious physical injury
to such person and thereby causes the death of such person.
Manslaughter in the first degree is a class B felony.
S 10. Paragraph (b) of subdivision 8 of section 700.05 of the criminal
procedure law, as amended by chapter 472 of the laws of 2008, is amended
to read as follows:
(b) Any of the following felonies: assault in the second degree as
defined in section 120.05 of the penal law, assault in the first degree
as defined in section 120.10 of the penal law, reckless endangerment in
the first degree as defined in section 120.25 of the penal law, promot-
ing a suicide attempt as defined in section 120.30 of the penal law,
criminally negligent homicide as defined in section 125.10 of the penal
law, manslaughter in the second degree as defined in section 125.15 of
the penal law, manslaughter in the first degree as defined in section
125.20 of the penal law, murder in the second degree as defined in
section 125.25 of the penal law, murder in the first degree as defined
in section 125.27 of the penal law, [abortion in the second degree as
defined in section 125.40 of the penal law, abortion in the first degree
as defined in section 125.45 of the penal law,] rape in the third degree
as defined in section 130.25 of the penal law, rape in the second degree
as defined in section 130.30 of the penal law, rape in the first degree
as defined in section 130.35 of the penal law, criminal sexual act in
the third degree as defined in section 130.40 of the penal law, criminal
sexual act in the second degree as defined in section 130.45 of the
penal law, criminal sexual act in the first degree as defined in section
130.50 of the penal law, sexual abuse in the first degree as defined in
section 130.65 of the penal law, unlawful imprisonment in the first
degree as defined in section 135.10 of the penal law, kidnapping in the
second degree as defined in section 135.20 of the penal law, kidnapping
in the first degree as defined in section 135.25 of the penal law, labor
A. 11484 5
trafficking as defined in section 135.35 of the penal law, custodial
interference in the first degree as defined in section 135.50 of the
penal law, coercion in the first degree as defined in section 135.65 of
the penal law, criminal trespass in the first degree as defined in
section 140.17 of the penal law, burglary in the third degree as defined
in section 140.20 of the penal law, burglary in the second degree as
defined in section 140.25 of the penal law, burglary in the first degree
as defined in section 140.30 of the penal law, criminal mischief in the
third degree as defined in section 145.05 of the penal law, criminal
mischief in the second degree as defined in section 145.10 of the penal
law, criminal mischief in the first degree as defined in section 145.12
of the penal law, criminal tampering in the first degree as defined in
section 145.20 of the penal law, arson in the fourth degree as defined
in section 150.05 of the penal law, arson in the third degree as defined
in section 150.10 of the penal law, arson in the second degree as
defined in section 150.15 of the penal law, arson in the first degree as
defined in section 150.20 of the penal law, grand larceny in the fourth
degree as defined in section 155.30 of the penal law, grand larceny in
the third degree as defined in section 155.35 of the penal law, grand
larceny in the second degree as defined in section 155.40 of the penal
law, grand larceny in the first degree as defined in section 155.42 of
the penal law, health care fraud in the fourth degree as defined in
section 177.10 of the penal law, health care fraud in the third degree
as defined in section 177.15 of the penal law, health care fraud in the
second degree as defined in section 177.20 of the penal law, health care
fraud in the first degree as defined in section 177.25 of the penal law,
robbery in the third degree as defined in section 160.05 of the penal
law, robbery in the second degree as defined in section 160.10 of the
penal law, robbery in the first degree as defined in section 160.15 of
the penal law, unlawful use of secret scientific material as defined in
section 165.07 of the penal law, criminal possession of stolen property
in the fourth degree as defined in section 165.45 of the penal law,
criminal possession of stolen property in the third degree as defined in
section 165.50 of the penal law, criminal possession of stolen property
in the second degree as defined by section 165.52 of the penal law,
criminal possession of stolen property in the first degree as defined by
section 165.54 of the penal law, trademark counterfeiting in the second
degree as defined in section 165.72 of the penal law, trademark counter-
feiting in the first degree as defined in section 165.73 of the penal
law, forgery in the second degree as defined in section 170.10 of the
penal law, forgery in the first degree as defined in section 170.15 of
the penal law, criminal possession of a forged instrument in the second
degree as defined in section 170.25 of the penal law, criminal
possession of a forged instrument in the first degree as defined in
section 170.30 of the penal law, criminal possession of forgery devices
as defined in section 170.40 of the penal law, falsifying business
records in the first degree as defined in section 175.10 of the penal
law, tampering with public records in the first degree as defined in
section 175.25 of the penal law, offering a false instrument for filing
in the first degree as defined in section 175.35 of the penal law, issu-
ing a false certificate as defined in section 175.40 of the penal law,
criminal diversion of prescription medications and prescriptions in the
second degree as defined in section 178.20 of the penal law, criminal
diversion of prescription medications and prescriptions in the first
degree as defined in section 178.25 of the penal law, residential mort-
gage fraud in the fourth degree as defined in section 187.10 of the
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penal law, residential mortgage fraud in the third degree as defined in
section 187.15 of the penal law, residential mortgage fraud in the
second degree as defined in section 187.20 of the penal law, residential
mortgage fraud in the first degree as defined in section 187.25 of the
penal law, escape in the second degree as defined in section 205.10 of
the penal law, escape in the first degree as defined in section 205.15
of the penal law, absconding from temporary release in the first degree
as defined in section 205.17 of the penal law, promoting prison contra-
band in the first degree as defined in section 205.25 of the penal law,
hindering prosecution in the second degree as defined in section 205.60
of the penal law, hindering prosecution in the first degree as defined
in section 205.65 of the penal law, sex trafficking as defined in
section 230.34 of the penal law, criminal possession of a weapon in the
third degree as defined in subdivisions two, three and five of section
265.02 of the penal law, criminal possession of a weapon in the second
degree as defined in section 265.03 of the penal law, criminal
possession of a weapon in the first degree as defined in section 265.04
of the penal law, manufacture, transport, disposition and defacement of
weapons and dangerous instruments and appliances defined as felonies in
subdivisions one, two, and three of section 265.10 of the penal law,
sections 265.11, 265.12 and 265.13 of the penal law, or prohibited use
of weapons as defined in subdivision two of section 265.35 of the penal
law, relating to firearms and other dangerous weapons, or failure to
disclose the origin of a recording in the first degree as defined in
section 275.40 of the penal law;
S 11. Subdivision 1 of section 673 of the county law, as added by
chapter 545 of the laws of 1965, is amended to read as follows:
1. A coroner or medical examiner has jurisdiction and authority to
investigate the death of every person dying within his county, or whose
body is found within the county, which is or appears to be:
(a) A violent death, whether by criminal violence, suicide or casual-
ty;
(b) A death caused by unlawful act or criminal neglect;
(c) A death occurring in a suspicious, unusual or unexplained manner;
(d) [A death caused by suspected criminal abortion;
(e)] A death while unattended by a physician, so far as can be discov-
ered, or where no physician able to certify the cause of death as
provided in the public health law and in form as prescribed by the
commissioner of health can be found;
[(f)] (E) A death of a person confined in a public institution other
than a hospital, infirmary or nursing home.
S 12. Section 4 of the judiciary law, as amended by chapter 264 of the
laws of 2003, is amended to read as follows:
S 4. Sittings of courts to be public. The sittings of every court
within this state shall be public, and every citizen may freely attend
the same, except that in all proceedings and trials in cases for
divorce, seduction, [abortion,] rape, assault with intent to commit
rape, criminal sexual act, bastardy or filiation, the court may, in its
discretion, exclude therefrom all persons who are not directly inter-
ested therein, excepting jurors, witnesses, and officers of the court.
S 13. This act shall take effect immediately.