Requires parental notice prior to the performance of an abortion upon an unemancipated minor; defines unemancipated minor as person less than eighteen years of age; allows for waiver of such notice in limited instances; establishes circumstances and procedures for proceedings to obtain an order waiving such parental notification.
Sponsor: ZELDIN
Committee: HEALTH
Law Section: Public Health Law
Law: Add S2507, Pub Health L; amd S213, add Art 10-C SS1095 - 1098, Fam Ct Act
Law Section: Public Health Law
Law: Add S2507, Pub Health L; amd S213, add Art 10-C SS1095 - 1098, Fam Ct Act
S4028-2011 Actions
- Jan 4, 2012: REFERRED TO HEALTH
- Mar 14, 2011: REFERRED TO HEALTH
S4028-2011 Memo
BILL NUMBER:S4028 TITLE OF BILL: An act to amend the public health law and the family court act, in relation to notice of abortions performed on unemancipated minors PURPOSE OR GENERAL IDEA OF BILL: This legislation provides that at least one parent or legal guardian of unemancipated minors (under age 18), receive written notification from a physician of his/her agent within 48 hours prior to the physician's performance of an abortion on that unemancipated minor. Notification is not necessary and is deemed waived under the following conditions: (a) When the attending physician certifies that a medical emergency exists, based on the physician's good faith clinical judgment that an abortion is necessary to prevent the death of substantial and irreversible impairment of bodily function of the minor. (b) The person(s) entitled to notification certifies that they have been notified. (c) The minor objects to notification and obtains an order from the Family Court dispensing with such notice. The court's decision would be based on a finding that (1) the minor is sufficiently informed about her decision and therefore mature enough to make the decision without parental notification; and (2) the abortion is in the best interest of the minor. This legislation provides for expeditious court proceedings and protects the child's anonymity, as required by the United states Supreme Court. Additionally, there are no fees required, court appointed counsel is available, and if necessary there is an expedited anonymous appeal. SUMMARY OF PROVISIONS: The Public Health Law is amended by adding a new section 2507; Section 213(a) of the Family Court Act is amended by adding a new paragraph (ix). This bill also creates a new Article 10-C of the Family Court Act, defining the role of family court when judicial intervention is necessary for a notification waiver. JUSTIFICATION: Parents have traditionally been recognized as having rights when it comes to the rearing of their children. In New York State, parents are required by law to give permission when their minor child has a tooth drilled or bone x-rayed, but they do not even have to be notified when their daughter is pregnant and considering the invasive surgery of abortion. Surely, parents have a right to know of a medical decision that could affect their daughter physically and emotionally for the rest of her life. Because over 83% of abortions in New York State occur in outpatient clinics, a girl is unlikely to have the benefit of conferring with a trusted family physician about her decision. Parental notification laws help to ensure that those who know her best talk to her about her medical history, the risks of abortion, and available alternatives. When parental notification laws are in effect, teens become more sexually responsible. During the first five years that Minnesota's law was operative, abortion rates dropped over 27%, birth rates fell 12.5%, and pregnancies dropped 20.5% for minors aged 10-17. LEGISLATIVE HISTORY: 2009/10: A.2357 - Held in Health 2007/08: A.2560 2005/06: A.6439 2003/04: S.3951 - Referred to Health 2001/02: S.3277 - Referred to Health/A.7685 1999/00: S.4145 - Referred to Health 1997/98: S.3151 - Referred to Health 1995/96: S.3342-B - Passed Senate 1993/94: S.3225-A/A.5581-A FISCAL IMPLICATIONS: None. EFFECTIVE DATE: This act shall take effect on the nineteenth day after it shall have become a law.
S4028-2011 Text
S T A T E O F N E W Y O R K
________________________________________________________________________
4028
2011-2012 Regular Sessions
I N SENATE
March 14, 2011
___________
Introduced by Sens. ZELDIN, FARLEY, GOLDEN, LARKIN, MAZIARZ -- read
twice and ordered printed, and when printed to be committed 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.
S 2. The public health law is amended by adding a new section 2507 to
read as follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03802-01-1
S. 4028 2
S 2507. 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.
S. 4028 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.
S 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-C 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-SIX OF THIS ACT OR THAT THE ABORTIONS, AS
DEFINED IN SECTION TWENTY-FIVE HUNDRED SEVEN OF THE PUBLIC HEALTH LAW,
WERE IN THE BEST INTERESTS OF THE MINORS.
S 4. The family court act is amended by adding a new article 10-C to
read as follows:
ARTICLE 10-C
PROCEEDING TO OBTAIN AN ORDER WAIVING PARENTAL
NOTIFICATION OF AN ABORTION
SECTION 1095. PURPOSES.
1096. DEFINITIONS.
1097. JURISDICTION.
1098. PROCEDURE.
S 1095. PURPOSES. THIS ARTICLE IS INTENDED TO ESTABLISH PROCEDURES TO
IMPLEMENT THE PROVISIONS CONTAINED IN SECTION TWENTY-FIVE HUNDRED SEVEN
OF THE PUBLIC HEALTH LAW.
S 1096. 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 SEVEN 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 SEVEN OF THE PUBLIC
S. 4028 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.
S 1097. JURISDICTION. THE FAMILY COURT HAS EXCLUSIVE ORIGINAL JURIS-
DICTION OVER PROCEEDINGS UNDER THIS ARTICLE TO OBTAIN AN ORDER WAIVING
PARENTAL NOTIFICATION OF AN ABORTION.
S 1098. 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.
S 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,
S. 4028 5
sentence, paragraph, section or part thereof directly involved in the
controversy in which such judgment shall have been rendered.
S 6. This act shall take effect on the ninetieth day after it shall
have become a law.
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