New York ‘Woman’s Right to Know’ Act (S 5067)

S 5067 would prohibit abortions from being performed or induced without the voluntary and informed consent, including forced ultrasound, of the individual upon whom the abortion is to be performed or induced.

Informed Consent Requirements

Under S 5067, an abortion could not be performed or induced without the voluntary and informed consent of the pregnant person, except in the case of a medical emergency. An abortion would only be considered voluntary and informed if:

• At least 24 hours before the procedure, the physician has informed the pregnant person orally and in person of:
  • the name of the physician performing the procedure;
  • the nature of the proposed abortion method and the risks and alternative methods;
  • the probable gestational age of the fetus and it is viable or has reached 22 weeks that (1) the fetus may be able to survive outside the womb; (2) the pregnant person has the right to request the physician to use the form of treatment that is most likely to preserve the life of the fetus; and (3) if the “unborn child” is born alive, the physician is required to take all necessary steps to maintain the life of the child;
  • the probable anatomical and physiological characteristics of the fetus;
  • the medical risks associated with carrying the child to term;
  • the medical and psychological risks associated with abortion; and
  • any need for anti-RH Immune Globulin Therapy, if she is RH negative, the likely consequences of refusing such therapy and the cost of the therapy.
• At least 24 hours before the procedure, the physician informs the pregnant person orally and in person that:
  • printed materials describe the fetus and list agencies which offer alternatives to abortion;
  • the father of the child is liable to assist in the support of their child;
  • the state encourages the pregnant person to view an ultrasound of their fetus before they choose to have the abortion; and
  • they are free to withdraw their consent to the abortion at any time.
• Physicians offer this information in person in a private room to protect the pregnant person’s privacy;
• The pregnant person certifies in writing they have received the information;
• The physician receives a copy of the certification;
• The pregnant person is not required to pay any amount for the abortion procedure until the 24 hour waiting period has expired.

Printed Materials

S 5067 would require that printed informational materials be provided to individuals seeking an abortion. The materials would need to include information on private and public agencies available to assist the pregnant person, adoption agencies, materials that inform the pregnant person of the probable anatomical and physiological characteristics of the fetus and any relevant information on the possibility of the fetus’s survival.

Ultrasound

Prior to a pregnant person giving informed consent, a physician would be required to perform an obstetric ultrasound on the pregnant person. The physician would need to verbally explain what the ultrasound is depicting while displaying the images so that the pregnant person may view them (although they may avert their eyes).  The physician would also be required to provide a medical description of the images including the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.  The physician would need to obtain and retain a copy of a written certification from the pregnant person that all requirements have been met.

If the pregnancy is at least 8 weeks after fertilization, the abortion provider who is to perform or induce the abortion, a certified technician, or another agent of the abortion provider would need to use a hand-held doppler fetal monitor to make the embryonic or fetal heartbeat of the fetus audible for the pregnant person to hear.  The pregnant person would not be prohibited from not listening to the sounds.

Internet Website

The Health Department would be required to maintain a website, accessible to the public, containing informational materials relating to the informed consent requirements.

If an abortion provider has a website, the abortion provider’s internet website home page would need to provide two direct links to the Department’s Informed consent materials.

Reporting Requirements

Reporting forms for physicians would need to include:

• The number of individuals to whom were provided the required information; of that number, the number provided by telephone and the number provided in person; and of each of those, the number provided in the capacity of a referring physician and the number provided in the capacity of a physician who is to perform the abortion;
• The number of individuals who availed themselves of the opportunity to obtain a copy of the printed information other than the website, and the number that did not; and of those numbers, how many went on to obtain the abortion; and
• The number of abortions performed by the physician in which information otherwise required to be provided at least 24 hours before the abortion was not provided because an immediate abortion was necessary to avert the patient’s death, and the number of abortions in which such information was not provided because a delay would have created serious risk of substantial and irreversible impairment of a major bodily function.

By June 30th of each year, the Department would be required to issue a public report providing statistics compiled from all the reports submitted from the previous year.

Any person who knowingly or intentionally violates any of the requirements would be guilty of a felony.  Any physician who knowingly submits a false report would be guilty of a misdemeanor.

Related Legislation

Similar to S 178, which failed to pass in 2015.

Similar to A 3252 and S 4996, both of which failed to pass in 2013.

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