NY State Senate Bill 2013-S438

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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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 08, 2014	defeated in health
Feb 28, 2014	notice of committee consideration - requested
Jan 08, 2014	referred to health
Jan 09, 2013	referred to health

Votes

- May 6, 2014 - Health Committee Vote
  S438
  
  8
  
  Aye
  
  9
  
  Nay
  
  0
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Health Committee Vote: May 6, 2014
      
      aye (8)
      
      Hassell-Thompson
      
      Hoylman-Sigal
      
      Montgomery
      
      O'Brien
      
      Peralta
      
      Rivera
      
      Savino
      
      Serrano
      
      nay (9)
      
      Ball
      
      Farley
      
      Felder
      
      Golden
      
      Hannon
      
      Larkin
      
      Martins
      
      Seward
      
      Young

co-Sponsors

View additional co-sponsors

2013-S438 (ACTIVE) - Details

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:: S2844

2013-S438 (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

2013-S438 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S438

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:
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 protects a female's life or health.

Section 2 of the bill also provides that the senate shall not deny,
regulate or restrict these fundamental tights, except by 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 belief.

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
practitioners 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 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
females life or health.

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

Section 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 definition of
"abortional act" and "justifiable abortional act" from Penal Law
§ 125.05.

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

Section 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.

Section 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 crime 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 a 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 circumstance that conflict
with the Roe line of cases, making current New York law unenforceable.

PHL § 4161(1) provides that abortion 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 the abortion


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 distribution of
contraceptives to minors under the age of sixteen, requires the sale
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 there her life or health are at risk after
viability. During the three decades since Roe v. Wade was decided,
there has been numerous federal court decisions clarifying the scope
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 statuary 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 eliminates Penal Law provisions 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 recognizes 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 (PFL) -
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 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, tortuous 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 negligent performed procedure. See Kusterman v.
Glick, 107 A.D2d664(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 and 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 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 would constitute "physical injury" or " serious
physical injury" to the woman, as those terms 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.
Vercelletoo, 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 victims suffered a miscarriage would
be admissible as proof of serious physical injury to the victim). The
perpetrators 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 regulation 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
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 abortion, 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, 43839(1983)
(invalidating an Akron, Ohio ordinance requiring abortions after 12
weeks of pregnancy be performed in a hospital); over-ruled 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); Thornbugh 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 hospital and clinics, without requiring in-patients
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).

FISCAL IMPLICATIONS:
This bill is anticipated to have no fiscal implications.

EFFECTIVE DATE:
This act shall take effect on the thirtieth day after it shall have
become a law.

2013-S438 (ACTIVE) - Bill Text download pdf

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

                                   438

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sens.  STEWART-COUSINS,  ADAMS,  AVELLA, BRESLIN, DILAN,
  GIANARIS,  HASSELL-THOMPSON,  KRUEGER,  LATIMER,  MONTGOMERY,  PARKER,
  PERALTA, PERKINS, RIVERA, SAMPSON, SERRANO, SQUADRON, STAVISKY -- read
  twice  and  ordered  printed,  and when printed to be committed to the
  Committee on Health

AN ACT to amend the public health  law,  in  relation  to  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.  Short title.  This act shall be known and may be cited as
the "reproductive 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
  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03449-01-3

S. 438                              2

(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-
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

S. 438                              3

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:
  1. He OR SHE recklessly causes the death of another person; or

S. 438                              4

  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  OR  SHE 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
OR SHE causes the death of such person or of a third person; or
  2. With intent to cause the death of another person, he OR SHE  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] ANOTHER person less than eleven years old, [the defendant]
HE  OR  SHE  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 405 of the laws of 2010, 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,
strangulation in the second degree as defined in section 121.12  of  the
penal  law,  strangulation  in  the  first  degree as defined in section
121.13 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,

S. 438                              5

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 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  counterfeiting 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, issuing  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

S. 438                              6

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  mortgage  fraud  in  the  fourth  degree  as
defined  in  section 187.10 of the penal law, residential mortgage fraud
in the third degree as defined in section 187.15 of the penal law, resi-
dential 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  contraband  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 instru-
ments 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 on the thirtieth day after  it  shall
have become a law.

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Senate Bill S438

Sponsored By

Archive: Last Bill Status - In Senate Committee Health Committee

May 6, 2014 - Health Committee Vote

Health Committee Vote: May 6, 2014

co-Sponsors

2013-S438 (ACTIVE) - Details

2013-S438 (ACTIVE) - Summary

2013-S438 (ACTIVE) - Sponsor Memo

2013-S438 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S438

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Sponsored By

Archive: Last Bill Status - In Senate Committee Health Committee

co-Sponsors

2013-S438 (ACTIVE) - Details

2013-S438 (ACTIVE) - Summary

2013-S438 (ACTIVE) - Sponsor Memo

2013-S438 (ACTIVE) - Bill Text download pdf

Comments