New York Fetal Heartbeat Ban (A 5384)
This law was last updated on Jul 21, 2017
A 5384 would establish the requirement of testing for a fetal heartbeat prior to the performance of an abortion and establishes standards for informed consent.
Any person who intends to perform or induce an abortion would be required to first determine whether there is a detectable fetal heartbeat. They would then be required to record in the patient’s medical record the estimated gestational age of the fetus, the method used to test for the fetal heartbeat, the date and time of the test, and the results of the test.
A fetal heartbeat can be detected as early as six weeks of pregnancy—two weeks after a woman’s first missed period—and well before many women even realize that they are pregnant.
Informed Consent Requirements
Under A 5384, a physician would be required to meet with the pregnant patient in person at least 24 hours prior to the performance or inducement of the abortion to establish informed consent. At this meeting, the physician must inform the patient all of the following:
- the nature and purpose of the particular abortion procedure and any associated medical risks;
- the probable gestational age of the embryo or fetus; and
- the medical risks associated with the pregnant patient carrying the pregnancy to term.
At least 24 hours prior to the performance or inducement of the abortion the physician or the physician’s agent must also do the following:
- inform the pregnant patient of the name of the physician who is scheduled to perform or induce the abortion;
- provide the pregnant patient copies of certain materials regarding abortion
- inform the patient that the materials are published by the state and that they describe the embryo or fetus and list agencies that offer alternatives to abortion.
Prior to the performance of an abortion the pregnant patient would be required to sign a form consenting to the abortion and certifying that they received the materials regarding abortion, all their questions have been answered and they consent to the procedure.
If a fetal heartbeat is detected prior to the procedure, the physician must do the following before performing or inducing an abortion:
- inform the pregnant patient in writing that the “unborn human individual” the pregnant patient is carrying has a fetal heartbeat;
- inform the pregnant patient of the statistical probability of bringing the “unborn human individual” possessing a detectable fetal heartbeat to term based on the gestational age; and
- the pregnant patient must sign a form acknowledging that they have received all the information.
Any of the above would not be required if the physician believes a medical emergency exists or the abortion needs to be performed to save the life of the pregnant patient.
Criminalization of Abortion
In the event that testing detects a fetal heartbeat, no person shall knowingly and purposefully perform an abortion on the pregnant patient with the specific intent of causing or abetting the termination of the life of the unborn human individual.
Whoever violates this would be guilty of abortion in the 3rd degree, which is a class E felony.
This would not apply to a physician who performs a medical procedure to prevent the death of the pregnant patient or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant patient.
A physician who performs or induces or attempts to perform or induce an abortion on a pregnant patient would be required to submit a report to the health department. By September 30th of each year, the department would then issue a public report that provides statistics for the previous calendar year compiled from all the reports collected. Physicians would be required to submit their reports within 15 days of the pregnant patient being discharged.
The bill also provides for certain remedies in the event that the United States Supreme Court overrules Roe v. Wade; and authorizes the commissioner of the department of public health to promulgate certain rules and regulations.