New York Pain-Capable Unborn Child Protection Act (A 8078)

A 8078 would prohibit a physician from performing or inducing an abortion if the post-fertilization age of the fetus is determined to be twenty or more weeks.

Under this bill, no person would be able to perform or induce, or attempt to perform or induce, an abortion of an “unborn child capable of feeling pain” unless it was necessary to prevent serious health risk to the mother. The bill alleges that a fetus is capable of feeling pain at or around 20 weeks of post-fertilization age.

If an abortion is necessary to prevent serious risk to the mother, the physician would need to terminate the pregnancy in the manner which, in reasonable medical judgment, provides the best opportunity for the “unborn child” to survive, unless it would pose a greater risk to the pregnant patient.

Any person who intentionally or recklessly performs or induces or attempts to perform or induce an abortion in violation of this provision would be guilty of a felony.

Reporting Requirements

Any physician that performs or induces or attempts to perform or induce an abortion would need to provide the following information to the health department:

• Post-fertilization age (including how it was determined and if a medical emergency existed);
• Method of abortion;
• Whether an intra-fetal injection was used;
• Age and race of the patient;
• If the “unborn child” was deemed capable of feeling pain, the basis of the determination that an abortion was still necessary in order to avoid serious injury or death to the pregnant patient; and
• If the method of abortion performed was the one that provided the best opportunity for the “unborn child” to survive, and if not, why.

Any physician who fails to submit a report by the end of thirty days following the due date established would be subjects to a late fee of $1,000 for each additional thirty-day period the report is overdue.

Litigation Defense Fund

The bill would also establish a special fund known as the “Pain-Capable Unborn Child Protection Act Litigation Fund,” for the purpose of providing funds to pay for any costs and expenses incurred by the state in relation to defending this law.

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