NY State Senate Bill 2009-S5808

Archive: Last Bill Status - In Senate Committee Health Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to health
Jun 05, 2009	referred to rules

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2009-S5808 (ACTIVE) - Details

See Assembly Version of this Bill:: A11484
Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Add Art 17 §§1700 - 1703, amd §4164, Pub Health L; rpld §6811 sub 8, Ed L; rpld §§125.40, 125.45, 125.50, 125.55 & 125.60, amd Art 125 Art Head, §§125.00, 125.05, 125.15 & 125.20, Pen L; amd §700.05, CP L; amd §673, County L; amd §4, Judy L
Versions Introduced in 2011-2012 Legislative Session:: S2524, A6112

2009-S5808 (ACTIVE) - Summary

Enacts the "reproductive health act"; provides a fundamental right to choose contraception and the right of a female to determine the course of a pregnancy; authorizes abortion prior to viability; defines terms

2009-S5808 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S5808

 TITLE OF BILL :

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


 PURPOSE OF BILL

To codify the protections recognized by the United States Supreme
Court in Roe v. Wade and in subsequent cases that confirmed the right
of individuals to make reproductive determinations, this bill
establishes a fundamental, statutory right to privacy in making
personal reproductive decisions and updates New York's abortion and
contraception laws to correct constitutional defects and ensure that
abortion is treated as a health matter.

 SUMMARY OF PROVISIONS :

Section 1 of the bill provides that the bill shall be known as the

"Reproductive Health Act."

Section 2 of the bill creates a new Article 17 of the Public Health
Law (PHL), which establishes in statute affirmative reproductive
rights, specifically: (1) the fundamental right of every individual to
choose or refuse contraception, and (2) the fundamental right of every
female to determine the course of her pregnancy. Section 2 of the bill
further states that an abortion may be performed by a qualified
practitioner in the absence of fetal viability and at any time when
necessary to protect the female's life or health.

Section 2 of the bill also provides that the State shall not deny,
regulate or restrict these fundamental rights, except by a law,
regulation or policy that is narrowly tailored to serve a compelling
State interest or by a generally applicable law or regulation
governing matters such as practitioner licensing, pharmaceuticals and
medical devices, and medical procedures. Section 2 additionally
prohibits the State from discriminating against the exercise of
reproductive rights in the provision of benefits, facilities,
services, or information.

Section 2 of the bill also states that nothing contained in the new
PHL Article 17 alters any existing protections under state or federal
law or regulation that permit a health care provider to refrain from
providing abortions due to the provider"s religious or moral beliefs.

Section 2 of the bill further sets forth certain definitions. In
particular, the bill defines fetal viability as the point in pregnancy
when, as determined by a physician or other qualified practitioner
acting in good faith in accordance with generally accepted medical
standards: (1) the gestational age of the fetus, measured from the
first day of the woman's last menstrual period, is at least 24 weeks,
and (2) there is a reasonable likelihood of the fetus's sustained
survival outside the uterus without application of extraordinary
medical measures.

Section 3 of the bill amends PHL § 4164 to provide that in the case of
an abortion performed after a fetus is considered viable, the
procedure may be delayed for the arrival of a second physician to take

charge of a live birth only if the delay will not jeopardize the
female's life or health.

Section 4 of the bill repeals Education Law § 6811(8), which pertains
to the sale, distribution, advertisement and display of
contraceptives.

Sections 5 and 7 of the bill repeal the five abortion-related crimes
contained in the Penal Law, amend the title of Penal Law Article 125
to delete the reference to abortion, and delete the definitions of
"abortional act" and "justifiable abortional act" from Penal Law §
125.05.

Section 6 of the bill amends the definition of "homicide" to delete
references to "unborn child" and abortion.

Sections 8 and 9 of the bill amend the first and second degree
manslaughter statutes to delete the sections relating to causing a
death of a female during the performance of an abortion.

Sections 10, 11, and 12 of the bill make conforming changes by
removing references to the crime of abortion in the Criminal Procedure
Law, the County Law, and the Judiciary Law.

Section 13 of the bill provides that the bill would take effect
immediately.

 EXISTING LAW :

Several New York statutes are unenforceable because they fail to
protect rights recognized by the federal Constitution, as interpreted
by the United States Supreme Court. This bill revises New York law to
remove the unenforceable provisions.

Article 125 of the Penal Law defines the crimes of first-degree
abortion and first-degree self abortion as homicides. Abortion or self
abortion is criminal unless justifiable, which means that it is a
medical procedure performed with the female's consent: (1) under a
reasonable belief that it is necessary to save the woman's life; or
(2) when a woman is no more than twenty-four weeks pregnant. The
crimes of manslaughter in the first and second degrees both include
sections that impose criminal liability when a woman dies during the
performance of an abortion that is not justifiable. Several components
of Article 125 conflict with decisions of the Supreme Court in  ROE V.
WADE  and subsequent cases. In particular, Article 125 does not
authorize a later term abortion when a woman's health is at stake, and
also criminalizes certain abortions performed before viability but
after 24 weeks - both circumstances that conflict with the  ROE  line
of cases, making current New York law unenforceable.

PHL 4164(1) provides that abortions performed after the twelfth week
of pregnancy may be performed only in a "hospital" and only on an
in-patient basis. The subdivision further provides that abortions
performed after the twentieth week of pregnancy must be attended by a
second physician who is to take charge of and provide immediate
medical care for any live birth that may result from such abortion.
This statute cannot be enforced in its current form in the State of
New York due to several United States Supreme Court decisions that
effectively invalidated various aspects of the law.

Education Law § 6811(8) prohibits the sale or distribution of
contraceptives to minors under the age of sixteen, requires that sales
of contraceptives to person who are sixteen or over may be authorized
only by a licensed pharmacist, and prohibits the advertisement or
display of contraceptives. This statute was found to be

unconstitutional, as applied to non-prescription contraceptives, by
the United States Supreme Court in 1977, and thus is not followed.

 STATEMENT IN SUPPORT :

In 1970, New York legalized abortions in some circumstances, thereby
recognizing that a woman has a fundamental right to make decisions
about the Course of her pregnancy. Three years later, the United
States Supreme Court issued its landmark decision in  ROE V. WADE ,
410 U.S. 113 (1973), holding that a woman has a fundamental right,
protected by the federal constitution, to an abortion prior to fetal
viability and, in cases where her life or health are at risk, after
viability. During the three decades since  ROE V. WADE  was decided,
there have been numerous federal court decisions clarifying the scope
of the right to abortion, but New York's laws have never been updated
and certain provisions are clearly unconstitutional.

Significantly, New York law currently does not contain any statement
affirmatively recognizing a woman's right to choose the course of her
pregnancy. Instead, the statutory contours of legal abortion are found
only in negative form; the Penal Law sets forth the circumstances in
which abortions are illegal, and only from those provisions can one
discern the circumstances in which abortions are permitted.

Specifically, the Penal Law makes abortion a crime unless the woman is
no more than 24 weeks pregnant or an abortion is necessary to save her
life. These provisions deprive a woman of her constitutional rights as
articulated by  ROE  because they criminalize an abortion performed
after 24 weeks of pregnancy, even if the fetus is non-viable, and they
criminalize a post-viability abortion that is necessary to protect a
woman's health.

This bill corrects those provisions of State law which
unconstitutionally burden a woman's right to obtain an abortion, and
establishes an affirmative right to make reproductive health decisions
in law. The bill further eliminates the Penal Law provisions
pertaining to abortion, which draw an unnecessary distinction between
abortion procedures and other medical procedures. These changes are
similar to initiatives pursued by other states over the past decade -
including California, Connecticut, Hawaii, Maine, Maryland, Nevada and
Washington - which affirmatively recognize a woman's fundamental right
to make reproductive health decisions in statute or constitution and
ensure that abortion is treated as a matter of women's health, not as
a matter of criminal law.

This bill adds a new Article 17 to the Public Health Law (PHL) -
entitled "Reproductive Health Act" - which affirms that a pregnant
woman has a fundamental right to abortion when a fetus is not viable
or if an abortion is necessary to preserve her life or health. The
bill leaves the determination of whether a fetus is viable to the good
faith medical judgment of a qualified physician or other practitioner,
exercised in accordance with generally accepted medical standards as
applied to the facts of the particular case.

Viability exists at the the point in pregnancy when: (1) the
gestational age of the fetus, measured from the first day of the
woman's last menstrual period, is at least 24 weeks, and (2) there is
a reasonable likelihood of the fetus's sustained survival outside the
uterus without application of extraordinary medical measures. This
standard incorporates accepted medical practices, provides guidance to
practitioners in exercising their good faith medical judgment and is
intended to prevent the abortion of viable fetuses, except when
necessary to protect a woman's life or health.

While the bill repeals Penal Law provisions pertaining to abortion,
sufficient protections still exist to address abortions which are
performed by health care practitioners under circumstances that
constitute unprofessional, tortious or criminal conduct. Such
practitioners can be subject to professional sanctions, civil
liability, or criminal prosecution. This ensures that abortion is
treated like any other medical procedure, subject to the same laws,
regulations and principles that generally govern the conduct of
medical practitioners.

For example, professional misconduct proceedings, which could result
in penalties such as suspension, limitation, revocation, or annulment
of the practitioner's license, could be commenced if the practitioner
performs a procedure incompetently or performs a procedure which is
outside the scope of his or her practice. Similarly, an abortion
provider, like any other health care practitioner, could be subject to
a medical malpractice lawsuit in civil court for injuries caused to a
woman during a negligently performed procedure.   SEE KUSTERMAN V.
GLICK , 107 A.D.2d 664 (2d Dept. 1985),  APP.  DISMISSED , 64 N.Y.2d
1040 (1985).

If a woman were to die during an abortion procedure as a result of
criminally negligent or reckless conduct by a physician, the physician
could be criminally prosecuted, just like any other health care
provider who caused injury to a patient as a result of such conduct.
 SEE, E.G., PEOPLE V. BENJAMIN , 270 A.D.2d 428 (2d Dept. 2000)
(upholding depraved indifference murder conviction based on defendant
physician's conduct after he inflicted a fatal wound during an
abortion procedure).

Moreover, there will continue to be sanctions if an unlicensed person
performs an abortion or makes a viability determination. or holds
himself or herself out as being able to do so. Education Law § 6512
provides that if any person performs or holds himself or herself out
as being authorized to perform an act which requires a professional
license, he or she may be prosecuted for the unauthorized practice of
a profession, a class E felony.  Thus, someone who engages in abortion
procedures without a license faces the same criminal sanctions as any
other unlicensed person who performs a medical procedure.

The bill's elimination of the Penal Law provisions pertaining to
abortion does not mean that there are no sanctions available to punish
an act, such as assault, which is committed against a pregnant woman
without consent and results in termination of a pregnancy or renders a
viable fetus non-viable. Depending on the circumstances, such injuries
could constitute "physical injury" or "serious physical injury" to the
woman, as those terns are defined by Penal Law §10.00, and could serve
as the basis for criminal liability for several assault and
assault-related offenses.  SEE PEOPLE V.  VERCELLETTO , 135 Misc.2d
40, 46-47 (Ulster Co. Ct. 1987) (finding that the destruction of
placenta and miscarriage of seven-month fetus constituted a serious
physical injury to the woman under the Penal Law);  CF ,  PEOPLE V.
THOMPSON ; 224 A.D.2d 950 (4th Dept.  1996) (suggesting that evidence
that victim suffered a miscarriage would be admissible as proof of
serious physical injury to the victim). The perpetrator could also be
answerable for his or her actions in a civil lawsuit brought by the
victim.  SEE  Insurance Law §§ 5102(2) and 5104 (including "loss of a
fetus" in the list of personal injuries which, if experienced as the
result of a motor vehicle accident, constitute "serious injury" and
can serve as the basis of a lawsuit notwithstanding the no-fault
system).

As noted, the bill seeks to ensure that abortion is treated as a
health matter and that women are free to make reproductive health
decisions. Accordingly, the bill provides that the State is prohibited
from discriminating against the exercise of reproductive rights in the
provision of benefits, facilities, services, or information, which is
intended to ensure continued public funding of abortion services.
However, as with any other health matter, the right to make a decision
about the course of medical treatment is not completely unfettered; as
expressly stated in new PHL Article 17, as the State may infringe upon
the fundamental right to have an abortion, but only by narrowly
tailored law, regulation or policy, or by statutes and regulations of
general applicability that pertain to matters such as professional
licensing or regulation of medical facilities.

For example, current New York law addresses certain aspects of
later-term abortions under PHL§ 4164, requiring that abortions after
the twelfth week of pregnancy must be performed in a hospital on
in-patient status and that a second physician must be present if an
abortion is performed after viability to take charge of any resulting
live birth. The bill does not seek to eliminate regulation of
later-term abortions, but it does correct several constitutional
deficiencies associated with the statute.  SEE CITY OF AKRON V. AKRON
CENTER FOR REPRODUCTIVE HEALTH , 462 U.S. 416,438-39 (1983)
(invalidating an Akron, Ohio ordinance requiring abortions after 12
weeks of pregnancy be performed in a hospital); overruled on other
grounds,  PLANNED PARENTHOOD V. CASEY , 505 U.S.  833 (1992);  PLANNED
PARENTHOOD ASSOCIATION OF KANSAS CITY.  MISSOURI. INC. V. ASHCROFT ,
462 U.S. 476,481-82 (1983) (invalidating a Missouri requirement that
abortions after 12 weeks of pregnancy be performed in a hospital);
 THORNBURGH V. AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS ,
476 U.S. 747 (1986) (finding the second physician requirement to be
unconstitutional because it did not include an exception for
emergencies).

Specifically, the bill amends PHL § 4164 to: (1) permit abortions to
be performed after viability in appropriate Article 28 facilities,
which include general hospitals and clinics, without requiring
in-patient status; (2) adopt the viability standard in determining
when a second physician must be present during an abortion: and (3)
provide an exception to the second physician requirement when delay in
securing the second physician's attendance would endanger the woman' s
life or health.

The bill also provides that the new PHL Article 17 does not alter any
existing protections under existing "conscience clauses" - state or
federal laws or regulations that permit a health care provider to
refrain from providing abortions due to the provider's religious or
moral beliefs.

Finally, in addition to establishing in statute the right to an
abortion, this bill also contains an affirmative statement of
reproductive rights, to make clear that in New York all individuals
have the right to use or refuse contraceptives. The bill also repeals
Education Law § 6811 (8) because the provision was expressly found to
be unconstitutional, as applied to non-prescription contraceptives, by
the Supreme Court in  CAREY V. POPULATION SERVICES INTERNATIONAL , 431
U.S.  678 (1977).

 BUDGET IMPLICATIONS :

This bill is anticipated to have no fiscal implications.

 EFFECTIVE DATE :
This bill would become effective immediately.

2009-S5808 (ACTIVE) - Bill Text download pdf

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

                                  5808

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              June 5, 2009
                               ___________

Introduced by Sens. STEWART-COUSINS, ADAMS, BRESLIN, DILAN, DUANE, ESPA-
  DA,  HASSELL-THOMPSON,  HUNTLEY,  C. JOHNSON,  KLEIN, KRUEGER, KRUGER,
  MONSERRATE, MONTGOMERY, OPPENHEIMER, PARKER, PERKINS, SAMPSON, SAVINO,
  SCHNEIDERMAN, SERRANO, SQUADRON, STAVISKY, THOMPSON -- (at request  of
  the  Governor)  -- read twice and ordered printed, and when printed to
  be committed to the Committee on Rules

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

S. 5808                             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-

S. 5808                             3

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:

S. 5808                             4

  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

S. 5808                             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

S. 5808                             6

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.

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Senate Bill S5808

Sponsored By

Archive: Last Bill Status - In Senate Committee Health Committee

co-Sponsors

2009-S5808 (ACTIVE) - Details

2009-S5808 (ACTIVE) - Summary

2009-S5808 (ACTIVE) - Sponsor Memo

2009-S5808 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S5808

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Sponsored By

Archive: Last Bill Status - In Senate Committee Health Committee

co-Sponsors

2009-S5808 (ACTIVE) - Details

2009-S5808 (ACTIVE) - Summary

2009-S5808 (ACTIVE) - Sponsor Memo

2009-S5808 (ACTIVE) - Bill Text download pdf

Comments