S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6064
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 26, 2019
                                ___________
 
 Introduced by M. of A. LAWRENCE -- read once and referred to the Commit-
   tee on Health
 
 AN  ACT  to amend the public health law, in relation to protecting pain-
   capable unborn children
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.  This  act  may be cited as the "pain-capable unborn child
 protection act".
   § 2. The legislature makes the following findings:
   (1) Pain receptors are present throughout the  unborn  child's  entire
 body and nerves link these receptors to the brain's thalamus and subcor-
 tical plate by no later than twenty weeks after fertilization.
   (2)  By  eight  weeks  after fertilization, the unborn child reacts to
 touch. After twenty weeks, the unborn child reacts to stimuli that would
 be recognized as painful if applied to an adult human.
   (3) In the unborn child, application of such painful stimuli is  asso-
 ciated with significant increases in stress hormones known as the stress
 response.
   (4)  Subjection  to  such painful stimuli is associated with long-term
 harmful neurodevelopmental effects, such as  altered  pain  sensitivity,
 and  possibly,  emotional, behavioral and learning disabilities later in
 life.
   (5) For the purposes of surgery on unborn children,  fetal  anesthesia
 is  routinely  administered  and is associated with a decrease in stress
 hormones compared to their level when painful stimuli are applied  with-
 out the anesthesia.
   (6)  The  position,  asserted by some medical experts, that the unborn
 child is incapable of experiencing pain until a point later in pregnancy
 than twenty weeks after fertilization predominantly rests on the assump-
 tion that the ability to experience pain depends on the cerebral  cortex
 and  requires  nerve  connections  between  the thalamus and the cortex.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD09626-01-9

 A. 6064                             2
 
 However, recent medical research and analysis,  especially  since  2007,
 provides strong evidence for the conclusion that a functioning cortex is
 not necessary to experience pain.
   (7) Substantial evidence indicates that children born missing the bulk
 of the cerebral cortex, those with hydranencephaly, nevertheless experi-
 ence pain.
   (8) In adults, stimulation or ablation of the cerebral cortex does not
 alter  pain  perception,  while  stimulation or ablation of the thalamus
 does.
   (9) Substantial evidence indicates that structures used for pain proc-
 essing in early development differ from those of adults, using different
 neural elements available at specific times during development, such  as
 the subcortical plate, to fulfill the role of pain processing.
   (10)  The  position,  asserted  by  some commentators, that the unborn
 child remains in a coma-like sleep state that precludes the unborn child
 experiencing pain is inconsistent with the documented reaction of unborn
 children to painful stimuli and with the experience  of  fetal  surgeons
 who had found it necessary to sedate the unborn child with anesthesia to
 prevent  the unborn child from engaging in vigorous movement in reaction
 to invasive surgery.
   (11) Consequently, there  is  substantial  medical  evidence  that  an
 unborn  child is capable of experiencing pain by twenty (20) weeks after
 fertilization. The Legislature has the constitutional authority to  make
 this  judgment. As the United States Supreme Court has noted in Gonzales
 v. Carhart, 550 U.S. 124, 162-64 (2007). "The Court has given state  and
 federal  legislatures wide discretion to pass legislation in areas where
 there is medical and scientific  uncertainty...See  Marshall  v.  United
 States,  414  U.S.  417, 427 (1974) ('When Congress undertakes to act in
 areas fraught with medical  and  scientific  uncertainties,  legislative
 options  must  be  especially  broad.')...The law need not give abortion
 doctors unfettered choice in the course of their medical  practice,  nor
 should  it  elevate  their  status above other physicians in the medical
 community....Medical uncertainty does  not  foreclose  the  exercise  of
 legislative power in the abortion context any more than it does in other
 contexts."
   (12)  It  is  the  purpose  of  the State to assert a compelling state
 interest in protecting the lives of unborn children from  the  stage  at
 which  substantial  medical  evidence indicates that they are capable of
 feeling pain.
   (13) In enacting this legislation the state is not asking the  Supreme
 Court  to  overturn  or replace its holding, first articulated in Roe v.
 Wade and reaffirmed in Planned Parenthood of  Southeastern  Pennsylvania
 v. Casey, that the state interest in unborn human life, which is "legit-
 imate" throughout pregnancy, becomes "compelling" at viability.  Rather,
 it  asserts  a  separate  and  independent  compelling state interest in
 unborn human life that exists once the unborn child is capable of  feel-
 ing  pain,  which  is asserted not in replacement of, but in addition to
 the state's compelling state interest in protecting the lives of  unborn
 children from the stage of viability.
   (14) The United States Supreme Court has established that the "consti-
 tutional  liberty  of  the  woman  to have some freedom to terminate her
 pregnancy...is not so unlimited...that from the outset the State  cannot
 show  its  concern  for  the life of the unborn, and at a later point in
 fetal development the State's interest in life has sufficient  force  so
 that  the  right  of  the  woman  to  terminate  the  pregnancy  can  be

 A. 6064                             3
 
 restricted." Planned Parenthood of Southeastern Pennsylvania  v.  Casey,
 505 U.S. 833, 869 (1992).
   (15)  The  Supreme Court decision upholding the Partial-Birth Abortion
 Ban Act, Gonzales  v.  Carhart,  550  U.S.  124  (2007)  vindicated  the
 dissenting  opinion  in  the  earlier  decision  that  had  struck  down
 Nebraska's Partial-Birth Abortion Ban Act.  That  opinion  stated,  "{In
 Casey}  We  held it was inappropriate for the Judicial Branch to provide
 an exhaustive list of state interests implicated by abortion...Casey  is
 premised on the States having an important constitutional role in defin-
 ing their interests in the abortion debate. It is only with this princi-
 ple   in   mind   that   {a  state's}  interests  can  be  given  proper
 weight...States also have an interest in forbidding  medical  procedures
 which,  in the State's reasonable determination, might cause the medical
 profession or society as a whole to become insensitive, even disdainful,
 to life, including life in the human fetus...A State may  take  measures
 to  ensure the medical profession and its members are viewed as healers,
 sustained by a compassionate and rigorous ethic  and  cognizant  of  the
 dignity  and value of human life, even life which cannot survive without
 the assistance of others." Stenberg v. Carhart,  350  U.S.  914,  958-59
 (2000)(Kennedy, J., dissenting).
   (16)  Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which the
 context of determining the severability of a  state  statute  regulating
 abortion  in  the  United  States  Supreme  Court noted that an explicit
 statement of  legislative  intent  specifically  made  applicable  to  a
 particular statute is of greater weight than a general savings or sever-
 ability  clause,  it  is the intent of the State that if any one or more
 provisions, sections, subsections, sentences, clauses, phrases or  words
 of  this act or the application thereof to any person or circumstance is
 found to be unconstitutional, the same is hereby declared to be  severa-
 ble  and  the balance of this act shall remain effective notwithstanding
 such unconstitutionality. Moreover, the State  declares  that  it  would
 have passed this act, and each provision, section, subsection, sentence,
 clause, phrase or word thereof, irrespective of the fact that any one or
 more  provisions,  sections, subsections, sentences, clauses, phrases or
 words, or any of their applications, were  to  be  declared  unconstitu-
 tional.
   §  3.  Article  41 of the public health law is amended by adding a new
 title 5-B to read as follows:
                                 TITLE V-B
                   PAIN-CAPABLE UNBORN CHILD PROTECTION
 SECTION 4164-A. DEFINITIONS.
         4164-B. PROTECTION OF UNBORN CHILD CAPABLE OF FEELING PAIN  FROM
                   ABORTION.
         4164-C. REPORTING.
         4164-D. CRIMINAL PENALTIES.
         4164-E. CIVIL REMEDIES.
         4164-F. PROTECTION OF PRIVACY IN COURT PROCEEDINGS.
         4164-G. LITIGATION DEFENSE FUND.
         4164-H. CONSTRUCTION.
   § 4164-A. DEFINITIONS. AS USED IN THIS TITLE:
   1.  "ABORTION"  MEANS THE USE OR PRESCRIPTION OF ANY INSTRUMENT, MEDI-
 CINE, DRUG, OR ANY OTHER SUBSTANCE OR DEVICE:
   (A) TO INTENTIONALLY KILL THE UNBORN CHILD OF  A  WOMAN  KNOWN  TO  BE
 PREGNANT; OR
   (B)  TO  INTENTIONALLY  TERMINATE THE PREGNANCY OF A WOMAN KNOWN TO BE
 PREGNANT, WITH AN INTENTION OTHER THAN:

 A. 6064                             4
 
   (I) AFTER VIABILITY TO PRODUCE A LIVE BIRTH AND PRESERVE THE LIFE  AND
 HEALTH OF THE CHILD BORN ALIVE; OR
   (II) TO REMOVE A DEAD UNBORN CHILD.
   2.  "ATTEMPT",  WITH RESPECT TO AN ABORTION, MEANS CONDUCT THAT, UNDER
 THE CIRCUMSTANCES AS THE  ACTOR  BELIEVES  THEM  TO  BE,  CONSTITUTES  A
 SUBSTANTIAL STEP IN A COURSE OF CONDUCT PLANNED TO CULMINATE IN PERFORM-
 ING AN ABORTION IN THIS STATE IN VIOLATION OF THIS TITLE.
   3. "FERTILIZATION" MEANS THE FUSION OF HUMAN SPERMATOZOON WITH A HUMAN
 OVUM.
   4.   "MEDICAL EMERGENCY" MEANS A CONDITION THAT, IN REASONABLE MEDICAL
 JUDGMENT, SO COMPLICATES THE MEDICAL CONDITION  OF  THE  PREGNANT  WOMAN
 THAT  IT  NECESSITATES  AN  IMMEDIATE  ABORTION OF HER PREGNANCY WITHOUT
 FIRST DETERMINING POST-FERTILIZATION AGE TO AVERT HER DEATH OR FOR WHICH
 THE DELAY NECESSARY TO  DETERMINE  POST-FERTILIZATION  AGE  WILL  CREATE
 SERIOUS  RISK  OF  SUBSTANTIAL AND IRREVERSIBLE PHYSICAL IMPAIRMENT OF A
 MAJOR BODILY FUNCTION, NOT INCLUDING PSYCHOLOGICAL OR  EMOTIONAL  CONDI-
 TIONS.  A  CONDITION MAY NOT BE DEEMED A MEDICAL EMERGENCY IF BASED ON A
 CLAIM OR DIAGNOSIS THAT THE  WOMAN  WILL  ENGAGE  IN  CONDUCT  THAT  SHE
 INTENDS  TO RESULT IN HER DEATH OR IN SUBSTANTIAL AND IRREVERSIBLE PHYS-
 ICAL IMPAIRMENT OF A MAJOR BODILY FUNCTION.
   5. "PHYSICIAN" MEANS  A  PERSON  LICENSED  TO  PRACTICE  MEDICINE  AND
 SURGERY  OR  OSTEOPATHIC  MEDICINE  AND  SURGERY,  OR  OTHERWISE LEGALLY
 AUTHORIZED TO PERFORM AN ABORTION.
   6. "POST-FERTILIZATION AGE" MEANS THE  AGE  OF  THE  UNBORN  CHILD  AS
 CALCULATED FROM THE FUSION OF A HUMAN SPERMATOZOON WITH A HUMAN OVUM.
   7.  "PROBABLE  POST-FERTILIZATION AGE OF THE UNBORN CHILD" MEANS WHAT,
 IN REASONABLE MEDICAL JUDGMENT, WILL WITH REASONABLE PROBABILITY BE  THE
 POST-FERTILIZATION  AGE  OF THE UNBORN CHILD AT THE TIME THE ABORTION IS
 PLANNED TO BE PERFORMED OR INDUCED.
   8. "REASONABLE MEDICAL JUDGMENT" MEANS A MEDICAL JUDGMENT  THAT  WOULD
 BE  MADE BY A REASONABLY PRUDENT PHYSICIAN, KNOWLEDGEABLE ABOUT THE CASE
 AND THE TREATMENT POSSIBILITIES WITH RESPECT TO THE  MEDICAL  CONDITIONS
 INVOLVED.
   9.  "SERIOUS  HEALTH  RISK TO THE UNBORN CHILD'S MOTHER" MEANS THAT IN
 REASONABLE MEDICAL JUDGMENT SHE HAS A CONDITION THAT SO COMPLICATES  HER
 MEDICAL  CONDITION THAT IT NECESSITATES THE ABORTION OF HER PREGNANCY TO
 AVERT HER DEATH OR TO AVERT SERIOUS RISK OF SUBSTANTIAL AND IRREVERSIBLE
 PHYSICAL IMPAIRMENT OF A MAJOR BODILY FUNCTION, NOT INCLUDING PSYCHOLOG-
 ICAL OR EMOTIONAL CONDITIONS. NO GREATER RISK MAY BE DETERMINED TO EXIST
 IF IT IS BASED ON A CLAIM OR DIAGNOSIS THAT THE  WOMAN  WILL  ENGAGE  IN
 CONDUCT  WHICH  SHE INTENDS TO RESULT IN HER DEATH OR IN SUBSTANTIAL AND
 IRREVERSIBLE PHYSICAL IMPAIRMENT OF A MAJOR BODILY FUNCTION.
   10. "UNBORN CHILD" MEANS AN INDIVIDUAL ORGANISM OF  THE  SPECIES  HOMO
 SAPIENS,  BEGINNING  AT  FERTILIZATION,  UNTIL  THE  POINT OF BEING BORN
 ALIVE.
   11. "WOMAN" MEANS A FEMALE HUMAN BEING WHETHER OR NOT SHE HAS  REACHED
 THE AGE OF MAJORITY.
   §  4164-B.  PROTECTION  OF  UNBORN  CHILD CAPABLE OF FEELING PAIN FROM
 ABORTION.  1. NO PERSON SHALL PERFORM OR INDUCE, OR ATTEMPT  TO  PERFORM
 OR INDUCE, AN ABORTION OF AN UNBORN CHILD CAPABLE OF FEELING PAIN UNLESS
 NECESSARY TO PREVENT SERIOUS HEALTH RISK TO THE UNBORN CHILD'S MOTHER.
   2. AN UNBORN CHILD SHALL BE DEEMED CAPABLE OF FEELING PAIN WHEN IT HAS
 BEEN  DETERMINED,  BY THE PHYSICIAN PERFORMING OR INDUCING OR ATTEMPTING
 TO PERFORM OR INDUCE THE ABORTION OR BY  ANOTHER  PHYSICIAN  UPON  WHOSE
 DETERMINATION  THAT  PHYSICIAN RELIES, THAT THE PROBABLE POST-FERTILIZA-
 TION AGE OF THE WOMAN'S UNBORN CHILD IS TWENTY OR MORE WEEKS.

 A. 6064                             5

   3. EXCEPT IN THE CASE OF A  MEDICAL  EMERGENCY,  NO  ABORTION  MAY  BE
 PERFORMED  OR  INDUCED OR BE ATTEMPTED TO BE PERFORMED OR INDUCED UNLESS
 THE PHYSICIAN PERFORMING OR INDUCING IT HAS FIRST MADE  A  DETERMINATION
 OF  THE  PROBABLE  POST-FERTILIZATION  AGE OF THE UNBORN CHILD OR RELIED
 UPON  SUCH  A  DETERMINATION  MADE  BY ANOTHER PHYSICIAN. IN MAKING THIS
 DETERMINATION, THE PHYSICIAN SHALL MAKE SUCH INQUIRIES OF THE WOMAN  AND
 PERFORM  OR CAUSE TO BE PERFORMED SUCH MEDICAL EXAMINATIONS AND TESTS AS
 A REASONABLY PRUDENT PHYSICIAN, KNOWLEDGEABLE ABOUT  THE  CASE  AND  THE
 MEDICAL  CONDITIONS  INVOLVED,  WOULD  CONSIDER  NECESSARY TO PERFORM IN
 MAKING AN ACCURATE DIAGNOSIS WITH RESPECT TO POST-FERTILIZATION AGE.
   4. WHEN AN ABORTION OF AN UNBORN CHILD  CAPABLE  OF  FEELING  PAIN  IS
 NECESSARY  TO  PREVENT SERIOUS HEALTH RISK TO THE UNBORN CHILD'S MOTHER,
 THE PHYSICIAN SHALL TERMINATE THE PREGNANCY  IN  THE  MANNER  WHICH,  IN
 REASONABLE  MEDICAL  JUDGMENT,  PROVIDES  THE  BEST  OPPORTUNITY FOR THE
 UNBORN CHILD TO SURVIVE, UNLESS, IN REASONABLE MEDICAL JUDGMENT,  TERMI-
 NATION  OF THE PREGNANCY IN THAT MANNER WOULD POSE A GREATER RISK EITHER
 OF THE DEATH OF THE PREGNANT WOMAN OR THE SUBSTANTIAL  AND  IRREVERSIBLE
 PHYSICAL IMPAIRMENT OF A MAJOR BODILY FUNCTION, NOT INCLUDING PSYCHOLOG-
 ICAL  OR  EMOTIONAL  CONDITIONS, OF THE WOMAN THAN WOULD OTHER AVAILABLE
 METHODS. NO GREATER RISK MAY BE DETERMINED TO EXIST IF IT IS BASED ON  A
 CLAIM  OR  DIAGNOSIS  THAT  THE  WOMAN  WILL ENGAGE IN CONDUCT WHICH SHE
 INTENDS TO RESULT IN HER DEATH OR IN SUBSTANTIAL AND IRREVERSIBLE  PHYS-
 ICAL IMPAIRMENT OF A MAJOR BODILY FUNCTION.
   §  4164-C.  REPORTING.  1.  ANY  PHYSICIAN  WHO PERFORMS OR INDUCES OR
 ATTEMPTS TO PERFORM OR INDUCE AN ABORTION SHALL REPORT  TO  THE  DEPART-
 MENT, ON A SCHEDULE AND IN ACCORDANCE WITH FORMS AND REGULATIONS ADOPTED
 AND PROMULGATED BY THE DEPARTMENT, THAT INCLUDE:
   (A) POST-FERTILIZATION AGE:
   (I)  IF  A  DETERMINATION OF PROBABLE POST-FERTILIZATION AGE WAS MADE,
 WHETHER ULTRASOUND WAS EMPLOYED IN MAKING  THE  DETERMINATION,  AND  THE
 WEEK OF PROBABLE POST-FERTILIZATION AGE DETERMINED.
   (II)  IF  A  DETERMINATION  OF PROBABLE POST-FERTILIZATION AGE WAS NOT
 MADE, THE BASIS OF THE DETERMINATION THAT A MEDICAL EMERGENCY EXISTED.
   (B) METHOD OF ABORTION: WHICH OF THE FOLLOWING WAS EMPLOYED:
   (I)   MEDICATION   ABORTION   (SUCH   AS,   BUT   NOT   LIMITED    TO,
 MIFEPRISTONE/MISOPROSTOL OR METHOTREXATE/MISOPROSTOL);
   (II) MANUAL VACUUM ASPIRATION;
   (III) ELECTRICAL VACUUM ASPIRATION;
   (IV) DILATION AND EVACUATION;
   (V) COMBINED INDUCTION ABORTION AND DILATION AND EVACUATION;
   (VI) INDUCTION ABORTION WITH PROSTAGLANDINS;
   (VII)  INDUCTION  ABORTION  WITH INTRA-AMNIOTIC INSTILLATION (SUCH AS,
 BUT NOT LIMITED TO, SALINE OR UREA);
   (VIII) INDUCTION ABORTION, OTHER; OR
   (IX) INTACT DILATION AND EXTRACTION (PARTIAL-BIRTH)
   (C) WHETHER AN INTRA-FETAL INJECTION WAS USED IN AN ATTEMPT TO  INDUCE
 FETAL DEMISE (SUCH AS, BUT NOT LIMITED TO, INTRAFETAL POTASSIUM CHLORIDE
 OR DIGOXIN);
   (D) AGE AND RACE OF THE PATIENT;
   (E)  IF THE UNBORN CHILD WAS DEEMED CAPABLE OF EXPERIENCING PAIN UNDER
 SECTION FORTY-ONE HUNDRED SIXTY-FOUR-B OF THIS TITLE, THE BASIS  OF  THE
 DETERMINATION  THAT  THE PREGNANT WOMAN HAD A CONDITION WHICH SO COMPLI-
 CATED HER MEDICAL CONDITION AS TO NECESSITATE THE ABORTION OF HER  PREG-
 NANCY  TO  AVERT  HER  DEATH OR TO AVERT SERIOUS RISK OF SUBSTANTIAL AND
 IRREVERSIBLE PHYSICAL IMPAIRMENT OF A MAJOR BODILY FUNCTION, NOT INCLUD-
 ING PSYCHOLOGICAL OR EMOTIONAL CONDITIONS;

 A. 6064                             6
 
   (F) IF THE UNBORN CHILD WAS DEEMED CAPABLE OF EXPERIENCING PAIN  UNDER
 SECTION FORTY-ONE HUNDRED SIXTY-FOUR-B OF THIS TITLE, WHETHER OR NOT THE
 METHOD  OF  ABORTION  USED WAS ONE THAT, IN REASONABLE MEDICAL JUDGMENT,
 PROVIDED THE BEST OPPORTUNITY FOR THE UNBORN CHILD TO  SURVIVE  AND,  IF
 SUCH  A  METHOD WAS NOT USED, THE BASIS OF THE DETERMINATION THAT TERMI-
 NATION OF THE PREGNANCY IN THAT MANNER WOULD POSE A GREATER RISK  EITHER
 OF  THE  DEATH OF THE PREGNANT WOMAN OR OF THE SUBSTANTIAL AND IRREVERS-
 IBLE PHYSICAL IMPAIRMENT OF  A  MAJOR  BODILY  FUNCTION,  NOT  INCLUDING
 PSYCHOLOGICAL  OR  EMOTIONAL  CONDITIONS,  OF THE WOMAN THAN WOULD OTHER
 AVAILABLE METHODS.
   2. REPORTS REQUIRED BY SUBDIVISION ONE OF THIS SECTION MAY NOT CONTAIN
 THE NAME OR THE ADDRESS OF THE PATIENT WHOSE PREGNANCY  WAS  TERMINATED,
 NOR  MAY  THE  REPORT  CONTAIN  ANY  OTHER  INFORMATION  IDENTIFYING THE
 PATIENT, EXCEPT THAT EACH REPORT SHALL CONTAIN A UNIQUE  MEDICAL  RECORD
 IDENTIFYING  NUMBER,  TO  ENABLE  MATCHING  THE  REPORT TO THE PATIENT'S
 MEDICAL RECORDS. THESE REPORTS SHALL BE MAINTAINED IN STRICT  CONFIDENCE
 BY  THE  DEPARTMENT,  SHALL  NOT BE AVAILABLE FOR PUBLIC INSPECTION, AND
 SHALL NOT BE MADE AVAILABLE EXCEPT:
   (A) TO THE ATTORNEY GENERAL OR A DISTRICT  ATTORNEY  WITH  APPROPRIATE
 JURISDICTION PURSUANT TO A CRIMINAL INVESTIGATION;
   (B) TO THE ATTORNEY GENERAL OR A DISTRICT ATTORNEY PURSUANT TO A CIVIL
 INVESTIGATION  OF  THE  GROUNDS  FOR  AN  ACTION UNDER SECTION FORTY-ONE
 HUNDRED SIXTY-FOUR-E OF THIS TITLE; OR
   (C) PURSUANT TO COURT ORDER  IN  AN  ACTION  UNDER  SECTION  FORTY-ONE
 HUNDRED SIXTY-FOUR-E OF THIS TITLE.
   3.  BY JUNE THIRTIETH OF EACH YEAR THE DEPARTMENT SHALL ISSUE A PUBLIC
 REPORT PROVIDING STATISTICS FOR THE PREVIOUS CALENDAR YEAR COMPILED FROM
 ALL OF THE REPORTS COVERING THAT YEAR SUBMITTED IN ACCORDANCE WITH  THIS
 SECTION FOR EACH OF THE ITEMS LISTED IN SUBDIVISION ONE OF THIS SECTION.
 EACH  REPORT SHALL ALSO PROVIDE THE STATISTICS FOR ALL PREVIOUS CALENDAR
 YEARS DURING WHICH THIS SECTION WAS IN EFFECT, ADJUSTED TO  REFLECT  ANY
 ADDITIONAL  INFORMATION  FROM  LATE OR CORRECTED REPORTS. THE DEPARTMENT
 SHALL TAKE CARE TO ENSURE THAT NONE OF THE INFORMATION INCLUDED  IN  THE
 PUBLIC  REPORTS COULD REASONABLY LEAD TO THE IDENTIFICATION OF ANY PREG-
 NANT WOMAN UPON WHOM AN ABORTION WAS PERFORMED, INDUCED, OR ATTEMPTED.
   4. ANY PHYSICIAN WHO FAILS TO SUBMIT A REPORT BY  THE  END  OF  THIRTY
 DAYS  FOLLOWING  THE DUE DATE ESTABLISHED BY REGULATION SHALL BE SUBJECT
 TO A LATE FEE OF ONE THOUSAND DOLLARS ($1,000) FOR EACH ADDITIONAL THIR-
 TY-DAY PERIOD OR PORTION OF A THIRTY-DAY PERIOD THE REPORT  IS  OVERDUE.
 ANY PHYSICIAN REQUIRED TO REPORT IN ACCORDANCE WITH THIS ACT WHO HAS NOT
 SUBMITTED  A  REPORT,  OR  HAS SUBMITTED ONLY AN INCOMPLETE REPORT, MORE
 THAN SIX MONTHS FOLLOWING THE DUE DATE, MAY, IN AN ACTION BROUGHT BY THE
 DEPARTMENT, BE DIRECTED BY A COURT OF COMPETENT JURISDICTION TO SUBMIT A
 COMPLETE REPORT WITHIN A PERIOD STATED BY COURT ORDER OR BE  SUBJECT  TO
 CIVIL  CONTEMPT.  INTENTIONAL  OR  RECKLESS  FAILURE BY ANY PHYSICIAN TO
 CONFORM TO ANY REQUIREMENT  OF  THIS  SECTION  CONSTITUTES  PROFESSIONAL
 MISCONDUCT PURSUANT TO TITLE TWO-A OF ARTICLE TWO OF THIS CHAPTER.
   §  4164-D.  CRIMINAL PENALTIES.  ANY PERSON WHO INTENTIONALLY OR RECK-
 LESSLY PERFORMS OR INDUCES OR ATTEMPTS TO PERFORM OR INDUCE AN  ABORTION
 IN  VIOLATION  OF THIS TITLE SHALL BE GUILTY OF A FELONY. NO PENALTY MAY
 BE ASSESSED AGAINST THE WOMAN UPON WHOM THE  ABORTION  IS  PERFORMED  OR
 INDUCED OR ATTEMPTED TO BE PERFORMED OR INDUCED.
   §  4164-E. CIVIL REMEDIES. 1. ANY WOMAN UPON WHOM AN ABORTION HAS BEEN
 PERFORMED OR INDUCED IN VIOLATION OF THIS TITLE, OR THE  FATHER  OF  THE
 UNBORN  CHILD  WHO  WAS THE SUBJECT OF SUCH AN ABORTION, MAY MAINTAIN AN
 ACTION AGAINST THE PERSON WHO  PERFORMED  OR  INDUCED  THE  ABORTION  IN

 A. 6064                             7
 
 INTENTIONAL  OR RECKLESS VIOLATION OF THIS TITLE FOR ACTUAL AND PUNITIVE
 DAMAGES. ANY WOMAN UPON WHOM AN ABORTION HAS BEEN ATTEMPTED IN VIOLATION
 OF THIS TITLE MAY MAINTAIN AN ACTION AGAINST THE PERSON WHO ATTEMPTED TO
 PERFORM  OR  INDUCE THE ABORTION IN AN INTENTIONAL OR RECKLESS VIOLATION
 OF THIS TITLE FOR ACTUAL AND PUNITIVE DAMAGES.
   2. A CAUSE OF ACTION FOR INJUNCTIVE RELIEF AGAINST ANY PERSON WHO  HAS
 INTENTIONALLY OR RECKLESSLY VIOLATED THIS TITLE MAY BE MAINTAINED (I) BY
 THE WOMAN UPON WHOM AN ADOPTION WAS PERFORMED OR INDUCED OR ATTEMPTED TO
 BE  PERFORMED  OR INDUCED IN VIOLATION OF THIS TITLE; (II) BY ANY PERSON
 WHO IS THE SPOUSE, PARENT, SIBLING OR  GUARDIAN  OF,  OR  A  CURRENT  OR
 FORMER LICENSED HEALTH CARE PROVIDER OF, THE WOMAN UPON WHOM AN ABORTION
 HAS BEEN PERFORMED OR INDUCED OR ATTEMPTED TO BE PERFORMED OR INDUCED IN
 VIOLATION  OF THIS TITLE; (III) BY A PROSECUTING ATTORNEY WITH APPROPRI-
 ATE JURISDICTION; OR (IV) BY THE ATTORNEY GENERAL. THE INJUNCTION  SHALL
 PREVENT  THE ABORTION PROVIDER FROM PERFORMING OR INDUCING OR ATTEMPTING
 TO PERFORM OR INDUCE FURTHER ABORTIONS IN VIOLATION  OF  THIS  TITLE  IN
 THIS STATE.
   3.  IF  JUDGMENT  IS  RENDERED  IN FAVOR OF THE PLAINTIFF IN AN ACTION
 DESCRIBED IN THIS SECTION, THE COURT SHALL ALSO RENDER  JUDGMENT  FOR  A
 REASONABLE  ATTORNEY'S FEE IN FAVOR OF THE PLAINTIFF AGAINST THE DEFEND-
 ANT.
   4. IF JUDGMENT IS RENDERED IN FAVOR OF THE  DEFENDANT  AND  THE  COURT
 FINDS  THE  PLAINTIFF'S SUIT WAS FRIVOLOUS AND BROUGHT IN BAD FAITH, THE
 COURT SHALL ALSO RENDER JUDGMENT FOR  A  REASONABLE  ATTORNEY'S  FEE  IN
 FAVOR OF THE DEFENDANT AGAINST THE PLAINTIFF.
   5. NO DAMAGES OR ATTORNEY'S FEE MAY BE ASSESSED AGAINST THE WOMAN UPON
 WHOM  AN  ABORTION WAS PERFORMED OR INDUCED OR ATTEMPTED TO BE PERFORMED
 OR INDUCED EXCEPT IN ACCORDANCE WITH SUBDIVISION FOUR OF THIS SECTION.
   § 4164-F. PROTECTION OF PRIVACY IN COURT PROCEEDINGS. IN  EVERY  CIVIL
 OR  CRIMINAL  PROCEEDING  OR  ACTION BROUGHT UNDER THIS TITLE, THE COURT
 SHALL RULE WHETHER THE ANONYMITY OF ANY WOMAN UPON WHOM AN ABORTION  HAS
 BEEN  PERFORMED OR INDUCED OR ATTEMPTED TO BE PERFORMED OR INDUCED SHALL
 BE PRESERVED FROM PUBLIC DISCLOSURE IF SHE DOES NOT GIVE HER CONSENT  TO
 SUCH  DISCLOSURE. THE COURT SHALL MAKE SUCH A RULING AND, UPON DETERMIN-
 ING THAT HER ANONYMITY SHOULD BE PRESERVED, SHALL ISSUE  ORDERS  TO  THE
 PARTIES,  WITNESSES,  AND  COUNSEL  AND  SHALL DIRECT THE SEALING OF THE
 RECORD AND EXCLUSION OF INDIVIDUALS FROM COURTROOMS OR HEARING ROOMS  TO
 THE  EXTENT  NECESSARY TO SAFEGUARD HER IDENTITY FROM PUBLIC DISCLOSURE.
 EACH SUCH ORDER  SHALL  BE  ACCOMPANIED  BY  SPECIFIC  WRITTEN  FINDINGS
 EXPLAINING  WHY  THE  ANONYMITY  OF  THE  WOMAN SHOULD BE PRESERVED FROM
 PUBLIC DISCLOSURE, WHY THE ORDER IS ESSENTIAL TO THAT END, HOW THE ORDER
 IS NARROWLY TAILORED TO SERVE THAT INTEREST, AND WHY NO REASONABLE  LESS
 RESTRICTIVE ALTERNATIVE EXISTS. IN THE ABSENCE OF WRITTEN CONSENT OF THE
 WOMAN  UPON  WHOM AN ABORTION HAS BEEN PERFORMED OR INDUCED OR ATTEMPTED
 TO BE PERFORMED OR INDUCED, ANYONE, OTHER THAN A  PUBLIC  OFFICIAL,  WHO
 BRINGS  AN  ACTION  UNDER SECTION FORTY-ONE HUNDRED SIXTY-FOUR-E OF THIS
 TITLE SHALL DO SO UNDER A PSEUDONYM. THIS SECTION MAY NOT  BE  CONSTRUED
 TO  CONCEAL  THE  IDENTITY  OF  THE  PLAINTIFF  OR OF WITNESSES FROM THE
 DEFENDANT OR FROM ATTORNEY FOR THE DEFENDANT.
   § 4164-G. LITIGATION DEFENSE FUND.  1. THERE IS HEREBY ESTABLISHED  IN
 THE  JOINT CUSTODY OF THE STATE COMPTROLLER AND THE DEPARTMENT A SPECIAL
 FUND KNOWN AS THE PAIN-CAPABLE UNBORN CHILD  PROTECTION  ACT  LITIGATION
 FUND  FOR  THE  PURPOSE  OF  PROVIDING  FUNDS  TO  PAY FOR ANY COSTS AND
 EXPENSES INCURRED BY THE STATE ATTORNEY GENERAL IN RELATION  TO  ACTIONS
 SURROUNDING DEFENSE OF THIS LAW.

 A. 6064                             8
 
   2.  THE  FUND SHALL CONSIST OF: (A) APPROPRIATIONS MADE TO THE ACCOUNT
 BY THE LEGISLATURE; AND (B) ANY DONATIONS, GIFTS, OR GRANTS MADE TO  THE
 ACCOUNT.
   3.  THE  FUND SHALL RETAIN THE INTEREST INCOME DERIVED FROM THE MONEYS
 CREDITED TO THE FUND.
   § 4165-H. CONSTRUCTION. THIS ACT SHALL NOT BE CONSTRUED TO REPEAL,  BY
 IMPLICATION  OR  OTHERWISE,  ANY  OTHERWISE  APPLICABLE PROVISION OF LAW
 REGULATING OR RESTRICTING ABORTION. AN ABORTION THAT COMPLIES WITH  THIS
 TITLE  BUT VIOLATES THE PROVISIONS OF ANY OTHERWISE APPLICABLE PROVISION
 OF LAW SHALL BE DEEMED  UNLAWFUL  AS  PROVIDED  IN  SUCH  PROVISION.  AN
 ABORTION  THAT  COMPLIES WITH THE PROVISIONS OF ANY OTHERWISE APPLICABLE
 PROVISION OF LAW REGULATING OR RESTRICTING ABORTION  BUT  VIOLATES  THIS
 TITLE SHALL BE DEEMED UNLAWFUL AS PROVIDED IN THIS TITLE. IF SOME OR ALL
 OF  THE  PROVISIONS  OF  THIS  TITLE ARE EVER TEMPORARILY OR PERMANENTLY
 RESTRAINED OR ENJOINED BY JUDICIAL ORDER, ALL OTHER  PROVISIONS  OF  LAW
 REGULATING  OR  RESTRICTING  ABORTION  SHALL  BE ENFORCED AS THOUGH SUCH
 RESTRAINED OR ENJOINED PROVISIONS HAD NOT BEEN ADOPTED; PROVIDED, HOWEV-
 ER, THAT WHENEVER SUCH  TEMPORARY  OR  PERMANENT  RESTRAINING  ORDER  OF
 INJUNCTION  IS  STAYED OR DISSOLVED, OR OTHERWISE CEASES TO HAVE EFFECT,
 SUCH PROVISIONS SHALL HAVE FULL FORCE AND EFFECT.
   § 4. This act shall take effect immediately.