New York Fetal Heartbeat Abortion Ban (A 5389)

A 5389 would prohibit a physician from performing or inducing an abortion on a pregnant person if it has been determined that the fetus has a detectable heartbeat.

A fetal heartbeat can be detected as early as six weeks of pregnancy—two weeks after a person’s first missed period—and well before many people even realize that they are pregnant.

The bill would prohibit a physician from performing an abortion without first determining whether the fetus has a detectable heartbeat. The bill would allow the commissioner to propose rules for specifying the appropriate methods of performing an examination for the purpose of determining the presence of a fetal heartbeat based on standard medical practice.

A person who performs an abortion without first determining whether the fetus has a detectable heartbeat would be committing abortion in the third degree—a class E felony.

Preliminary Informed Consent

Except in cases of medical emergency or medical necessity, an abortion may only be performed if all of the following conditions are met:

• At least 24 hours prior to performing an abortion, the physician meets with the pregnant patient to inform them of the following:
  • The nature, purpose, and medical risks associated with the procedure;
  • The probable gestational age of the fetus; and
  • The medical risks associated with carrying the fetus to term.
• The physician would need to provide the pregnant person with their contact information;
• At least 24 hours prior to performing the abortion, the physician does each of the following (in person, via telephone or certified mail):
  • Inform the pregnant person of the performing physician’s name;
  • Give the pregnant person copies of published informed consent materials;
  • Inform the pregnant person that the materials are provided by the state and that they describe the embryo or fetus and list agencies that offer alternatives to abortion;
• If a fetal heartbeat has been detected, the physician would need to comply with the preliminary informed consent requirements as well as additional informed consent requirements (see below).
• The pregnant person would need to certify that they have received all the information and consents to the procedure;
• The form would need to include contact information of the physician who provided the information; and
• The physician would need to receive a copy of the certification prior to the abortion.

Informed Consent After the Detection of a Fetal Heartbeat

If a fetal heartbeat is detected, the person intending to perform the abortion would be required to inform the pregnant person that the fetus has a detectable heartbeat and of the statistical probability of bringing the fetus to term. The pregnant person would need to certify that they received the information. The person intending to perform the abortion could not perform or induce an abortion until all the requirements are met and at least 24 hours have elapsed.

This would not apply in cases of medical emergency.

Performance of an Abortion

The bill would require a person who performs an abortion to note in the patient’s medical record the medical reason for the procedure (whether the procedure was to preserve the health of the pregnant person or not).

Heartbeat Ban

The bill would prohibit a person from performing or inducing an abortion on a pregnant person when a fetal heartbeat has been detected.

This would not apply to a physician who performs a medical procedure that is designed or intended to prevent the death of the pregnant person or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant person.

A physician who performs an abortion due to a medical emergency would need to document the procedure and associated medical condition.

A person who performs an abortion when the fetus has a detectable heartbeat—and absent any medical emergency—would be committing abortion in the third degree—a class E felony.

Reporting Requirements

The bill would require any physician who performs an abortion to submit an abortion report with the state. A person who falsifies a report would be guilty of a class A misdemeanor.

Duties of the State Health Department

The department would be required to publish materials on their website that inform pregnant people about family planning and alternatives to abortion. The materials would also need to include information on the probable anatomical and physiological characteristics of the zygote, blastocyte, embryo, or fetus at two-week gestational increments.

Latest Action

2/11/19 – Introduced.

People