S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3398
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 3, 2023
                                ___________
 
 Introduced by M. of A. DeSTEFANO, MILLER, DiPIETRO, McDONOUGH, MANKTELOW
   -- read once and referred to the Committee on Health
 
 AN  ACT  to  amend  the  public  health law and the family court act, in
   relation to notice of abortions performed on unemancipated minors
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Legislative purpose and findings. It is the intent of this
 legislature in enacting this parental notice provision  to  further  the
 important  and  compelling  state interests of protecting minors against
 their own immaturity, fostering the family structure and  preserving  it
 as  a viable social unit, protecting the rights of parents to rear chil-
 dren who are members of their household, and protecting  the  health  of
 minor children.
   The  legislature  finds that immature minors often lack the ability to
 make fully-informed choices that take  account  of  both  immediate  and
 long-range  consequences  and that the medical, emotional and psycholog-
 ical consequences of abortion are serious and can  be  lasting,  partic-
 ularly  when the patient is immature. The legislature further finds that
 the capacity to become pregnant and the  capacity  for  mature  judgment
 concerning  the  wisdom  of an abortion are not necessarily related. The
 legislature finds that parents ordinarily possess information  essential
 to  a  physician's  exercise of his best medical judgment concerning the
 child and, further, that parents who are aware that their minor daughter
 has had an abortion may better ensure that she receives adequate medical
 attention after her  abortion.  The  legislature  concludes  then,  that
 parental  consultation  is usually desirable and in the best interest of
 the minor.
   § 2. The public health law is amended by adding a new  section  2509-b
 to read as follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06404-01-3
 A. 3398                             2
 
              

   § 2509-B. NOTIFICATION OF ABORTIONS ON UNEMANCIPATED MINORS.  1. DEFI-
 NITIONS.  FOR  THE  PURPOSES  OF THIS SECTION, THE FOLLOWING DEFINITIONS
 WILL APPLY:
   (A)  "UNEMANCIPATED MINOR" MEANS A PERSON WHO HAS NOT ATTAINED THE AGE
 OF EIGHTEEN YEARS AND IS NOT AN EMANCIPATED MINOR AS  DEFINED  IN  PARA-
 GRAPH (B) OF THIS SUBDIVISION.
   (B)  "EMANCIPATED  MINOR"  MEANS  A  MINOR WHO IS OR HAS BEEN LAWFULLY
 MARRIED OR HAS BY COURT ORDER OR OTHERWISE BEEN  FREED  FROM  THE  CARE,
 CUSTODY AND CONTROL OF HER PARENTS.
   (C)  "ABORTION" MEANS THE USE OF ANY INSTRUMENT, MEDICINE, DRUG OR ANY
 OTHER SUBSTANCE OR DEVICE WITH INTENT TO TERMINATE THE  PREGNANCY  OF  A
 WOMAN KNOWN TO BE PREGNANT WITH INTENT OTHER THAN TO INCREASE THE PROBA-
 BILITY  OF  A  LIVE  BIRTH,  TO PRESERVE THE LIFE OR HEALTH OF THE CHILD
 AFTER LIVE BIRTH, OR TO REMOVE A DEAD FETUS.
   (D) "MEDICAL EMERGENCY" MEANS THAT CONDITION WHICH, ON  THE  BASIS  OF
 THE PHYSICIAN'S GOOD FAITH CLINICAL JUDGMENT, SO COMPLICATES THE MEDICAL
 CONDITION OF THE PREGNANT MINOR AS TO NECESSITATE THE IMMEDIATE ABORTION
 OF HER PREGNANCY TO AVERT HER DEATH OR FOR WHICH DELAY WILL CREATE SERI-
 OUS  RISK  OF  SUBSTANTIAL AND IRREVERSIBLE IMPAIRMENT OF A MAJOR BODILY
 FUNCTION.
   2. NOTIFICATION  CONCERNING  ABORTION.  NO  PERSON  SHALL  PERFORM  AN
 ABORTION  UPON  AN  UNEMANCIPATED  MINOR  UNLESS HE OR SHE OR HIS OR HER
 AGENT HAS GIVEN AT LEAST FORTY-EIGHT HOURS WRITTEN NOTICE TO A CUSTODIAL
 PARENT WITH WHOM THE MINOR RESIDES OR TO THE LEGAL GUARDIAN OF THE PREG-
 NANT MINOR OF HIS OR HER INTENTION TO PERFORM THE ABORTION OR UNLESS  HE
 OR  SHE  OR  HIS  OR  HER AGENT HAS RECEIVED A WRITTEN STATEMENT OR ORAL
 COMMUNICATION, BY ANOTHER PHYSICIAN, HEREINAFTER CALLED  THE  "REFERRING
 PHYSICIAN", CERTIFYING THAT THE REFERRING PHYSICIAN HAS EFFECTUATED SUCH
 NOTICE.  IF THE MINOR'S PARENTS ARE DIVORCED OR LEGALLY SEPARATED, AND A
 CUSTODIAL PARENT WITH WHOM THE MINOR RESIDES IS  NOT  AVAILABLE  TO  THE
 PERSON  PERFORMING  THE ABORTION OR THE REFERRING PHYSICIAN IN A REASON-
 ABLE TIME OR MANNER, THEN THE NOTICE TO A NON-CUSTODIAL PARENT OR TO THE
 PARENT WHO IS AVAILABLE SHALL BE SUFFICIENT.
   (A) THE WRITTEN NOTICE SHALL BE ADDRESSED TO THE PARENT OR GUARDIAN AT
 THE USUAL PLACE OF  ABODE  OF  THE  PARENT  OR  GUARDIAN  AND  DELIVERED
 PERSONALLY TO THE PARENT OR GUARDIAN BY THE PHYSICIAN OR AN AGENT.
   (B) IN LIEU OF THE DELIVERY REQUIRED BY PARAGRAPH (A) OF THIS SUBDIVI-
 SION,  NOTICE SHALL BE MADE BY CERTIFIED MAIL ADDRESSED TO THE PARENT OR
 GUARDIAN AT THE USUAL PLACE OF ABODE OF  THE  PARENT  OR  GUARDIAN  WITH
 RETURN RECEIPT REQUESTED WITH RESTRICTED DELIVERY TO THE ADDRESSEE. TIME
 OF  DELIVERY SHALL BE DEEMED TO OCCUR AT 12:00 O'CLOCK NOON ON THE THIRD
 DAY AFTER MAILING.
   3. WAIVER OF NOTICE. NO NOTICE SHALL BE REQUIRED  UNDER  THIS  SECTION
 IF:
   (A)  THE ATTENDING PHYSICIAN CERTIFIES IN THE PREGNANT MINOR'S MEDICAL
 RECORD THAT A MEDICAL EMERGENCY EXISTS; OR
   (B) THE PERSON OR PERSONS WHO ARE ENTITLED TO NOTICE CERTIFY IN  WRIT-
 ING THAT THEY HAVE BEEN NOTIFIED; OR
   (C)  THE MINOR OBJECTS TO NOTICE BEING GIVEN HER CUSTODIAL PARENT WITH
 WHOM THE MINOR RESIDES OR LEGAL GUARDIAN AND OBTAINS AN ORDER ISSUED  BY
 A  JUDGE  OF THE FAMILY COURT AS PROVIDED IN ARTICLE TEN-A OF THE FAMILY
 COURT ACT, OR BY ANY OTHER JUDGE OR JUSTICE OF THIS STATE HAVING  JURIS-
 DICTION, DISPENSING WITH SUCH NOTICE.
   4.  COERCION  PROHIBITED.  NO  PARENT,  GUARDIAN OR OTHER PERSON SHALL
 COERCE A MINOR TO UNDERGO AN ABORTION. ANY MINOR WHO IS THREATENED  WITH
 SUCH COERCION MAY APPLY TO A COURT OF COMPETENT JURISDICTION FOR RELIEF.
 A. 3398                             3
 
 THE  COURT  SHALL  PROVIDE THE MINOR WITH COUNSEL, GIVE THE MATTER EXPE-
 DITED CONSIDERATION AND GRANT SUCH RELIEF AS MAY BE NECESSARY TO PREVENT
 SUCH COERCION. SHOULD A MINOR BE DENIED FINANCIAL SUPPORT OF HER PARENTS
 BY REASON OF HER REFUSAL TO UNDERGO AN ABORTION, SHE SHALL BE CONSIDERED
 EMANCIPATED FOR PURPOSES OF ELIGIBILITY FOR ASSISTANCE BENEFITS.
   5.  PENALTIES.  ANY PERSON WHO INTENTIONALLY PERFORMS AN ABORTION WITH
 KNOWLEDGE THAT, OR WITH RECKLESS DISREGARD AS  TO  WHETHER,  THE  PERSON
 UPON WHOM THE ABORTION IS TO BE PERFORMED IS AN UNEMANCIPATED MINOR, AND
 WHO INTENTIONALLY OR KNOWINGLY VIOLATES THE REQUIREMENTS OF THIS SECTION
 SHALL  BE  GUILTY OF A MISDEMEANOR. IN ADDITION, ANY PERSON WHO PERFORMS
 AN ABORTION UPON ANOTHER IN VIOLATION OF THIS SECTION SHALL  BE  SUBJECT
 TO  CIVIL  LIABILITY.  HOWEVER,  A PERSON SHALL NOT BE HELD LIABLE UNDER
 THIS SECTION IF THE PERSON ESTABLISHES  BY  WRITTEN  EVIDENCE  THAT  THE
 PERSON  RELIED  UPON EVIDENCE SUFFICIENT TO CONVINCE A REASONABLE PERSON
 THAT THE REPRESENTATIONS OF THE  PREGNANT  MINOR  REGARDING  INFORMATION
 NECESSARY  TO COMPLY WITH THIS SECTION ARE BONA FIDE AND TRUE, OR IF THE
 PERSON HAS ATTEMPTED WITH REASONABLE DILIGENCE TO  DELIVER  NOTICE,  BUT
 HAS BEEN UNABLE TO DO SO.
   §  3. Paragraph (viii) of subdivision (a) of section 213 of the family
 court act, as amended by chapter 920 of the laws of 1982, is amended and
 a new paragraph (ix) is added to read as follows:
   (viii) the number, nature and disposition  of  cases  involving  child
 abuse  under  article  ten  of  this  act, including total number of new
 cases, their nature, whether heard by the child abuse part, the age  and
 sex  of  the  children  involved,  the type of petitioner, the number of
 children temporarily removed both before and after the filing of a peti-
 tion, the length of time and number of adjournments between  the  filing
 of a petition and the fact-finding hearing, the number of cases that are
 dismissed,  withdrawn, sustained and admitted to, the length of time and
 number of adjournments between the fact-finding hearing and the disposi-
 tional hearing, and the final disposition of such cases[.];
   (IX) THE NUMBER AND DISPOSITION OF CASES UNDER ARTICLE TEN-D  OF  THIS
 ACT,  INCLUDING  THE  TOTAL  NUMBER  OF  NEW CASES, THE AGE OF THE MINOR
 INVOLVED, WHETHER THE ORDERS  REGARDING  NOTIFICATION  WERE  BASED  UPON
 FINDINGS  EITHER  THAT  THE  MINORS  WERE  MATURE  MINORS, AS DEFINED IN
 SECTION ONE THOUSAND NINETY-NINE-B OF THIS ACT OR THAT THE ABORTIONS, AS
 DEFINED IN SECTION TWENTY-FIVE HUNDRED NINE-B OF THE PUBLIC HEALTH  LAW,
 WERE IN THE BEST INTERESTS OF THE MINORS.
   §  4.  The family court act is amended by adding a new article 10-D to
 read as follows:
                               ARTICLE 10-D
              PROCEEDING TO OBTAIN AN ORDER WAIVING PARENTAL
                        NOTIFICATION OF AN ABORTION
 SECTION 1099.   PURPOSES.
         1099-A. DEFINITIONS.
         1099-B. JURISDICTION.
         1099-C. PROCEDURE.
   § 1099. PURPOSES. THIS ARTICLE IS INTENDED TO ESTABLISH PROCEDURES  TO
 IMPLEMENT THE PROVISIONS CONTAINED IN SECTION TWENTY-FIVE HUNDRED NINE-B
 OF THE PUBLIC HEALTH LAW.
   §  1099-A. DEFINITIONS. WHEN USED IN THIS ARTICLE, THE TERM "ABORTION"
 SHALL HAVE THE SAME MEANING AS IS ASCRIBED TO IT  IN  PARAGRAPH  (C)  OF
 SUBDIVISION  ONE  OF  SECTION  TWENTY-FIVE  HUNDRED NINE-B OF THE PUBLIC
 HEALTH LAW AND THE TERM "MATURE MINOR" SHALL MEAN A PERSON UNDER THE AGE
 OF EIGHTEEN WHO HAS NOT BEEN EMANCIPATED AS DEFINED IN PARAGRAPH (B)  OF
 SUBDIVISION  ONE  OF  SECTION  TWENTY-FIVE  HUNDRED NINE-B OF THE PUBLIC
 A. 3398                             4
 
 HEALTH LAW AND WHO IS ABLE TO MAKE AN INFORMED, REASONED AND  CONSIDERED
 JUDGMENT  IN  CONNECTION  WITH A DECISION WHETHER OR NOT TO PROCEED WITH
 THE ABORTION.
   § 1099-B. JURISDICTION. THE FAMILY COURT HAS EXCLUSIVE ORIGINAL JURIS-
 DICTION  OVER  PROCEEDINGS UNDER THIS ARTICLE TO OBTAIN AN ORDER WAIVING
 PARENTAL NOTIFICATION OF AN ABORTION.
   § 1099-C. PROCEDURE. NOTWITHSTANDING ANY OTHER PROVISION OF LAW:
   1. THE WAIVER OF PARENTAL NOTIFICATION TO AN ABORTION UPON OR WITH THE
 RESPECT TO AN UNEMANCIPATED MINOR MAY BE OBTAINED BY ORDER OF A JUDGE OF
 THE FAMILY COURT IN THE COUNTY WHERE SUCH PERSON RESIDES OR  IF  SHE  IS
 NOT  A RESIDENT OF THIS STATE, IN THE COUNTY WHERE THE ABORTION IS TO BE
 PERFORMED, ON APPLICATION BY SUCH PERSON OR BY A RELATIVE OF SUCH PERSON
 OR OTHER INTERESTED PARTY.
   2. SUCH COURT PROCEEDINGS SHALL BE  COMMENCED  EX  PARTE  AND  MAY  BE
 COMMENCED AND CONTINUED WITHOUT THE PAYMENT OF ANY FEES. THE COURT SHALL
 ADVISE  THE  MINOR  THAT  SHE HAS A RIGHT TO COURT-APPOINTED COUNSEL AND
 SHALL PROVIDE HER WITH SUCH COUNSEL UPON HER REQUEST.
   3. SUCH APPLICATION SHALL BE GIVEN IMMEDIATE CONSIDERATION AND A HEAR-
 ING SHALL BE HELD IMMEDIATELY AT WHICH THE PERSON UPON OR  WITH  RESPECT
 TO  WHOM  THE  ABORTION  IS  TO BE PERFORMED SHALL BE PRESENT. THE COURT
 SHALL ISSUE WRITTEN AND SPECIFIC FACTUAL FINDINGS AND LEGAL  CONCLUSIONS
 SUPPORTING  ITS  DECISION  AND SHALL ORDER THAT A CONFIDENTIAL RECORD OF
 THE EVIDENCE BE MAINTAINED. ALL PROCEEDINGS WITH RESPECT TO SUCH  APPLI-
 CATION,  INCLUDING  AN  APPEAL THEREFROM, SHALL PROTECT THE ANONYMITY OF
 THE MINOR. SAID PROCEEDINGS SHALL BE SEALED,  AND  NO  PERSON  SHALL  BE
 ALLOWED ACCESS TO SUCH SEALED RECORDS EXCEPT UPON AN ORDER OF A JUDGE OF
 THE  COURT IN WHICH THE APPLICATION WAS PROCESSED OR OF A JUSTICE OF THE
 SUPREME COURT OF THE JUDICIAL DISTRICT,  AND  NO  SUCH  ORDER  SHALL  BE
 GRANTED EXCEPT ON GOOD CAUSE SHOWN.
   4.  AN  ORDER SHALL ISSUE ONLY UPON FINDING BY THE COURT (A) THAT SUCH
 PERSON PRESENTLY DESIRES TO SUBMIT  TO  SUCH  ABORTION;  (B)  THAT  SUCH
 PERSON  IS  EITHER  A  MATURE MINOR OR THAT SUCH ABORTION IS IN THE BEST
 INTEREST OF SUCH PERSON; AND (C) THAT A PREVIOUS  APPLICATION  FOR  SUCH
 ORDER  HAS  NOT BEEN MADE AND DENIED UPON THE SAME GROUNDS. IF THE COURT
 SO FINDS, THE ORDER MUST ISSUE.
   5. IN THE EVENT THAT THE COURT SHALL  DENY  THE  APPLICATION  FOR  THE
 ORDER,  AN  EXPEDITED ANONYMOUS APPEAL SHALL BE AVAILABLE TO SUCH APPLI-
 CANT TO THE APPELLATE DIVISION OF THE  SUPREME  COURT  OF  THE  JUDICIAL
 DEPARTMENT  IN  WHICH  THE COURT WHICH RENDERED THE DECISION IS LOCATED.
 THE NOTICE OF INTENT TO APPEAL SHALL BE FILED WITHIN  TWENTY-FOUR  HOURS
 FROM  THE  DATE  OF ISSUANCE OF THE ORDER. THE RECORD ON APPEAL SHALL BE
 COMPLETED AND THE APPEAL SHALL BE PERFECTED WITHIN FIVE  DAYS  FROM  THE
 FILING  OF  THE  NOTICE  TO APPEAL.   BECAUSE TIME MAY BE OF THE ESSENCE
 REGARDING THE PERFORMANCE OF THE ABORTION, THE SUPREME COURT  SHALL,  BY
 COURT  RULE,  PROVIDE  FOR  EXPEDITED APPELLATE REVIEW OF CASES APPEALED
 UNDER THIS SECTION.
   6. THE SUPREME COURT SHALL PROMULGATE ANY RULES AND REGULATIONS NECES-
 SARY TO ENSURE THAT PROCEEDINGS UNDER THIS SECTION  ARE  HANDLED  IN  AN
 EXPEDITIOUS AND ANONYMOUS MANNER.
   7.  THE  SUPREME  COURT,  IN  ITS DISCRETION, MAY ISSUE SUCH OTHER AND
 FURTHER LAWFUL ORDERS AS IT DEEMS NECESSARY TO PROTECT SUCH PERSON.
   § 5. Separability. If any clause, sentence, section or  part  of  this
 act  shall  be  adjudged  by  any  court of competent jurisdiction to be
 invalid, such judgment  shall  not  affect,  impair  or  invalidate  the
 remainder thereof, but shall be confined in its operation to the clause,
 A. 3398                             5
 
 sentence,  paragraph,  section  or part thereof directly involved in the
 controversy in which such judgment shall have been rendered.
   §  6.  This  act shall take effect on the ninetieth day after it shall
 have become a law.