A03398 Summary:

COSPNSRMiller, DiPietro, McDonough, Manktelow, Brown E, McGowan, Mikulin, Byrnes, Giglio JM
MLTSPNSRAngelino, Flood
Add §2509-b, Pub Health L; amd §213, add Art 10-D §§1099 - 1099-c, Fam Ct Act
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.
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A03398 Actions:

02/03/2023referred to health
01/03/2024referred to health
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A03398 Committee Votes:

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A03398 Floor Votes:

There are no votes for this bill in this legislative session.
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A03398 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
SPONSOR: DeStefano
  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 (i.e., those who are under the age of 18), receive written notification from a physician or his/her agent within 48 hours prior to the physician's performance of an abortion on that unemancipat- ed 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 or substan- tial and irreversible impairment of a bodily function of the minor; (b) The person(s) entitled to notification certifies that they have been notified; or (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 therefor mature enough to make the decision with- out parental notification; and (2) the abortion is in the best interests 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 a re no fees required, court appointed counsel is available, and if necessary there is an expe- dited 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-A of the Family Court Act, - defining the role of family court when judicial intervention is neces- sary 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 notifica- tion 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 sexual- ly 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.   PRIOR LEGISLATIVE HISTORY: A.3780 od 2021/22-held for consideration in Health; A3620 of 2017/18 referred to health, A6473 of 2015/16 - held in Health A3040 of 2013/14 - held in Health A2128 of 2011/12 held in Health A2357 of 2009/10 - held in Health A2560 of 2007/08 A6439 of 2005/06 A5640 of 2003/04 A.7685/S.3277 of 2001/02 S.4145 of 99-2000 S.3151 of 97-98 S3342-B of 95/96 53225-A 93/94, A5581-A of 1993/94   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None   EFFECTIVE DATE: This act shall take effect on the ninetieth day after it shall have become a law.
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A03398 Text:

                STATE OF NEW YORK
                               2023-2024 Regular Sessions
                   IN ASSEMBLY
                                    February 3, 2023
          -- 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:
     1    Section  1. Legislative purpose and findings. It is the intent of this
     2  legislature in enacting this parental notice provision  to  further  the
     3  important  and  compelling  state interests of protecting minors against
     4  their own immaturity, fostering the family structure and  preserving  it
     5  as  a viable social unit, protecting the rights of parents to rear chil-
     6  dren who are members of their household, and protecting  the  health  of
     7  minor children.
     8    The  legislature  finds that immature minors often lack the ability to
     9  make fully-informed choices that take  account  of  both  immediate  and
    10  long-range  consequences  and that the medical, emotional and psycholog-
    11  ical consequences of abortion are serious and can  be  lasting,  partic-
    12  ularly  when the patient is immature. The legislature further finds that
    13  the capacity to become pregnant and the  capacity  for  mature  judgment
    14  concerning  the  wisdom  of an abortion are not necessarily related. The
    15  legislature finds that parents ordinarily possess information  essential
    16  to  a  physician's  exercise of his best medical judgment concerning the
    17  child and, further, that parents who are aware that their minor daughter
    18  has had an abortion may better ensure that she receives adequate medical
    19  attention after her  abortion.  The  legislature  concludes  then,  that
    20  parental  consultation  is usually desirable and in the best interest of
    21  the minor.
    22    § 2. The public health law is amended by adding a new  section  2509-b
    23  to read as follows:
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 3398                             2
     1    § 2509-b. Notification of abortions on unemancipated minors.  1. Defi-
     2  nitions.  For  the  purposes  of this section, the following definitions
     3  will apply:
     4    (a)  "unemancipated minor" means a person who has not attained the age
     5  of eighteen years and is not an emancipated minor as  defined  in  para-
     6  graph (b) of this subdivision.
     7    (b)  "emancipated  minor"  means  a  minor who is or has been lawfully
     8  married or has by court order or otherwise been  freed  from  the  care,
     9  custody and control of her parents.
    10    (c)  "abortion" means the use of any instrument, medicine, drug or any
    11  other substance or device with intent to terminate the  pregnancy  of  a
    12  woman known to be pregnant with intent other than to increase the proba-
    13  bility  of  a  live  birth,  to preserve the life or health of the child
    14  after live birth, or to remove a dead fetus.
    15    (d) "medical emergency" means that condition which, on  the  basis  of
    16  the physician's good faith clinical judgment, so complicates the medical
    17  condition of the pregnant minor as to necessitate the immediate abortion
    18  of her pregnancy to avert her death or for which delay will create seri-
    19  ous  risk  of  substantial and irreversible impairment of a major bodily
    20  function.
    21    2. Notification  concerning  abortion.  No  person  shall  perform  an
    22  abortion  upon  an  unemancipated  minor  unless he or she or his or her
    23  agent has given at least forty-eight hours written notice to a custodial
    24  parent with whom the minor resides or to the legal guardian of the preg-
    25  nant minor of his or her intention to perform the abortion or unless  he
    26  or  she  or  his  or  her agent has received a written statement or oral
    27  communication, by another physician, hereinafter called  the  "referring
    28  physician", certifying that the referring physician has effectuated such
    29  notice.  If the minor's parents are divorced or legally separated, and a
    30  custodial parent with whom the minor resides is  not  available  to  the
    31  person  performing  the abortion or the referring physician in a reason-
    32  able time or manner, then the notice to a non-custodial parent or to the
    33  parent who is available shall be sufficient.
    34    (a) The written notice shall be addressed to the parent or guardian at
    35  the usual place of  abode  of  the  parent  or  guardian  and  delivered
    36  personally to the parent or guardian by the physician or an agent.
    37    (b) In lieu of the delivery required by paragraph (a) of this subdivi-
    38  sion,  notice shall be made by certified mail addressed to the parent or
    39  guardian at the usual place of abode of  the  parent  or  guardian  with
    40  return receipt requested with restricted delivery to the addressee. Time
    41  of  delivery shall be deemed to occur at 12:00 o'clock noon on the third
    42  day after mailing.
    43    3. Waiver of notice. No notice shall be required  under  this  section
    44  if:
    45    (a)  the attending physician certifies in the pregnant minor's medical
    46  record that a medical emergency exists; or
    47    (b) the person or persons who are entitled to notice certify in  writ-
    48  ing that they have been notified; or
    49    (c)  the minor objects to notice being given her custodial parent with
    50  whom the minor resides or legal guardian and obtains an order issued  by
    51  a  judge  of the family court as provided in article ten-A of the family
    52  court act, or by any other judge or justice of this state having  juris-
    53  diction, dispensing with such notice.
    54    4.  Coercion  prohibited.  No  parent,  guardian or other person shall
    55  coerce a minor to undergo an abortion. Any minor who is threatened  with
    56  such coercion may apply to a court of competent jurisdiction for relief.

        A. 3398                             3
     1  The  court  shall  provide the minor with counsel, give the matter expe-
     2  dited consideration and grant such relief as may be necessary to prevent
     3  such coercion. Should a minor be denied financial support of her parents
     4  by reason of her refusal to undergo an abortion, she shall be considered
     5  emancipated for purposes of eligibility for assistance benefits.
     6    5.  Penalties.  Any person who intentionally performs an abortion with
     7  knowledge that, or with reckless disregard as  to  whether,  the  person
     8  upon whom the abortion is to be performed is an unemancipated minor, and
     9  who intentionally or knowingly violates the requirements of this section
    10  shall  be  guilty of a misdemeanor. In addition, any person who performs
    11  an abortion upon another in violation of this section shall  be  subject
    12  to  civil  liability.  However,  a person shall not be held liable under
    13  this section if the person establishes  by  written  evidence  that  the
    14  person  relied  upon evidence sufficient to convince a reasonable person
    15  that the representations of the  pregnant  minor  regarding  information
    16  necessary  to comply with this section are bona fide and true, or if the
    17  person has attempted with reasonable diligence to  deliver  notice,  but
    18  has been unable to do so.
    19    §  3. Paragraph (viii) of subdivision (a) of section 213 of the family
    20  court act, as amended by chapter 920 of the laws of 1982, is amended and
    21  a new paragraph (ix) is added to read as follows:
    22    (viii) the number, nature and disposition  of  cases  involving  child
    23  abuse  under  article  ten  of  this  act, including total number of new
    24  cases, their nature, whether heard by the child abuse part, the age  and
    25  sex  of  the  children  involved,  the type of petitioner, the number of
    26  children temporarily removed both before and after the filing of a peti-
    27  tion, the length of time and number of adjournments between  the  filing
    28  of a petition and the fact-finding hearing, the number of cases that are
    29  dismissed,  withdrawn, sustained and admitted to, the length of time and
    30  number of adjournments between the fact-finding hearing and the disposi-
    31  tional hearing, and the final disposition of such cases[.];
    32    (ix) the number and disposition of cases under article ten-D  of  this
    33  act,  including  the  total  number  of  new cases, the age of the minor
    34  involved, whether the orders  regarding  notification  were  based  upon
    35  findings  either  that  the  minors  were  mature  minors, as defined in
    36  section one thousand ninety-nine-b of this act or that the abortions, as
    37  defined in section twenty-five hundred nine-b of the public health  law,
    38  were in the best interests of the minors.
    39    §  4.  The family court act is amended by adding a new article 10-D to
    40  read as follows:
    41                                ARTICLE 10-D
    43                         NOTIFICATION OF AN ABORTION
    44  Section 1099.   Purposes.
    45          1099-a. Definitions.
    46          1099-b. Jurisdiction.
    47          1099-c. Procedure.
    48    § 1099. Purposes. This article is intended to establish procedures  to
    49  implement the provisions contained in section twenty-five hundred nine-b
    50  of the public health law.
    51    §  1099-a. Definitions. When used in this article, the term "abortion"
    52  shall have the same meaning as is ascribed to it  in  paragraph  (c)  of
    53  subdivision  one  of  section  twenty-five  hundred nine-b of the public
    54  health law and the term "mature minor" shall mean a person under the age
    55  of eighteen who has not been emancipated as defined in paragraph (b)  of
    56  subdivision  one  of  section  twenty-five  hundred nine-b of the public

        A. 3398                             4
     1  health law and who is able to make an informed, reasoned and  considered
     2  judgment  in  connection  with a decision whether or not to proceed with
     3  the abortion.
     4    § 1099-b. Jurisdiction. The family court has exclusive original juris-
     5  diction  over  proceedings under this article to obtain an order waiving
     6  parental notification of an abortion.
     7    § 1099-c. Procedure. Notwithstanding any other provision of law:
     8    1. The waiver of parental notification to an abortion upon or with the
     9  respect to an unemancipated minor may be obtained by order of a judge of
    10  the family court in the county where such person resides or  if  she  is
    11  not  a resident of this state, in the county where the abortion is to be
    12  performed, on application by such person or by a relative of such person
    13  or other interested party.
    14    2. Such court proceedings shall be  commenced  ex  parte  and  may  be
    15  commenced and continued without the payment of any fees. The court shall
    16  advise  the  minor  that  she has a right to court-appointed counsel and
    17  shall provide her with such counsel upon her request.
    18    3. Such application shall be given immediate consideration and a hear-
    19  ing shall be held immediately at which the person upon or  with  respect
    20  to  whom  the  abortion  is  to be performed shall be present. The court
    21  shall issue written and specific factual findings and legal  conclusions
    22  supporting  its  decision  and shall order that a confidential record of
    23  the evidence be maintained. All proceedings with respect to such  appli-
    24  cation,  including  an  appeal therefrom, shall protect the anonymity of
    25  the minor. Said proceedings shall be sealed,  and  no  person  shall  be
    26  allowed access to such sealed records except upon an order of a judge of
    27  the  court in which the application was processed or of a justice of the
    28  supreme court of the judicial district,  and  no  such  order  shall  be
    29  granted except on good cause shown.
    30    4.  An  order shall issue only upon finding by the court (a) that such
    31  person presently desires to submit  to  such  abortion;  (b)  that  such
    32  person  is  either  a  mature minor or that such abortion is in the best
    33  interest of such person; and (c) that a previous  application  for  such
    34  order  has  not been made and denied upon the same grounds. If the court
    35  so finds, the order must issue.
    36    5. In the event that the court shall  deny  the  application  for  the
    37  order,  an  expedited anonymous appeal shall be available to such appli-
    38  cant to the appellate division of the  supreme  court  of  the  judicial
    39  department  in  which  the court which rendered the decision is located.
    40  The notice of intent to appeal shall be filed within  twenty-four  hours
    41  from  the  date  of issuance of the order. The record on appeal shall be
    42  completed and the appeal shall be perfected within five  days  from  the
    43  filing  of  the  notice  to appeal.   Because time may be of the essence
    44  regarding the performance of the abortion, the supreme court  shall,  by
    45  court  rule,  provide  for  expedited appellate review of cases appealed
    46  under this section.
    47    6. The supreme court shall promulgate any rules and regulations neces-
    48  sary to ensure that proceedings under this section  are  handled  in  an
    49  expeditious and anonymous manner.
    50    7.  The  supreme  court,  in  its discretion, may issue such other and
    51  further lawful orders as it deems necessary to protect such person.
    52    § 5. Separability. If any clause, sentence, section or  part  of  this
    53  act  shall  be  adjudged  by  any  court of competent jurisdiction to be
    54  invalid, such judgment  shall  not  affect,  impair  or  invalidate  the
    55  remainder thereof, but shall be confined in its operation to the clause,

        A. 3398                             5
     1  sentence,  paragraph,  section  or part thereof directly involved in the
     2  controversy in which such judgment shall have been rendered.
     3    §  6.  This  act shall take effect on the ninetieth day after it shall
     4  have become a law.
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A03398 LFIN:

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