Bill Text: MS HB857 | 2012 | Regular Session | Introduced
Bill Title: Pain-capable Unborn Child Protection Act; create.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2012-03-06 - Died In Committee [HB857 Detail]
Download: Mississippi-2012-HB857-Introduced.html
MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Judiciary B
By: Representative Monsour (By Request)
House Bill 857
AN ACT TO CREATE THE MISSISSIPPI PAIN-CAPABLE UNBORN CHILD PROTECTION ACT; TO PROVIDE LEGISLATIVE FINDINGS; TO DEFINE CERTAIN TERMS; TO PROVIDE FOR THE DETERMINATION OF POST-FERTILIZATION AGE; TO PROHIBIT THE ABORTION OF AN UNBORN CHILD OF TWENTY OR MORE WEEKS; TO REQUIRE REPORTING; TO PROVIDE CRIMINAL PENALTIES FOR VIOLATIONS OF THIS ACT; TO PROVIDE CIVIL REMEDIES; TO PROVIDE FOR THE PROTECTION OF PRIVACY; TO CREATE THE PAIN-CAPABLE UNBORN CHILD PROTECTION ACT LITIGATION FUND; AMEND SECTIONS 41-41-33, 41-41-53 AND 41-41-77, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This Act may be cited as the "Mississippi Pain-Capable Unborn Child Protection Act."
SECTION 2. The Legislature makes the following findings:
(a) Pain receptors (nociceptors) are present throughout the unborn child's entire body and nerves link these receptors to the brain's thalamus and subcortical plate by no later than twenty (20) weeks.
(b) By eight (8) weeks after fertilization, the unborn child reacts to touch. After twenty (20) weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human, for example, by recoiling.
(c) In the unborn child, application of such painful stimuli is associated with significant increases in stress hormones known as the stress response.
(d) Subjection to such painful stimuli is associated with long-term harmful neurodevelopmental effects, such as altered pain sensitivity and, possibly, emotional, behavioral, and learning disabilities later in life.
(e) For the purposes of surgery on unborn children, fetal anesthesia is routinely administered and is associated with a decrease in stress hormones compared to their level when painful stimuli are applied without such anesthesia.
(f) The position, asserted by some medical experts, that the unborn child is incapable of experiencing pain until a point later in pregnancy than twenty (20) weeks after fertilization predominately rests on the assumption that the ability to experience pain depends on the cerebral cortex and requires nerve connections between the thalamus and the cortex. However, recent medical research and analysis, especially since 2007, provides strong evidence for the conclusion that a functioning cortex is not necessary to experience pain.
(g) Substantial evidence indicates that children born missing the bulk of the cerebral cortex, those with hydranencephaly, nevertheless experience pain.
(h) In adults, stimulation or ablation of the cerebral cortex does not alter pain perception, while stimulation or ablation of the thalamus does.
(i) Substantial evidence indicates that structures used for pain processing in early development differ from those of adults, using different neural elements available at specific times during development, such as the subcortical plate, to fulfill the role of pain processing.
(j) The position, asserted by some medical experts, that the unborn child remains in a coma-like sleep state that precludes the unborn child experiencing pain is inconsistent with the documented reaction of unborn children to painful stimuli and with the experience of fetal surgeons who have found it necessary to sedate the unborn child with anesthesia to prevent the unborn child from thrashing about in reaction to invasive surgery.
(k) Consequently, there is substantial medical evidence that an unborn child is capable of experiencing pain by twenty (20) weeks after fertilization.
(l) It is the purpose of the state to assert a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.
(m) Mississippi's compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain is intended to be separate from and independent of Mississippi's compelling state interest in protecting the lives of unborn children from the stage of viability, and neither state interest is intended to replace the other.
(n) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in the context of determining the severability of a state statute regulating abortion, the United States Supreme Court noted that an explicit statement of legislative intent specifically made applicable to a particular statute is of greater weight than a general savings or severability clause; it is the intent of the state that if any one or more provisions, sections, subsections, sentences, clauses, phrases or words of this act or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of this act shall remain effective notwithstanding such unconstitutionality. Moreover, the state declares that it would have passed this act, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one or more provisions, sections, subsections, sentences, clauses, phrases or words, or any of their applications, were to be declared unconstitutional.
SECTION 3. For purposes of this Act:
(a) "Abortion" means the use or prescription of any instrument, medicine, drug, or any other substance or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead unborn child who died as the result of natural causes in utero, accidental trauma, or a criminal assault on the pregnant woman or her unborn child, and which causes the premature termination of the pregnancy.
(b) "Attempt to perform or induce an abortion" means an act, or an omission of a statutorily required act, that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance or induction of an abortion in this state in violation of this act.
(c) "Department" means State Department of Health.
(d) "Fertilization" means the fusion of a human spermatozoon with a human ovum.
(e) "Medical emergency" means a condition that, in reasonable medical judgment, so complicates the medical condition of the pregnant woman that it necessitates the immediate abortion of her pregnancy without first determining postfertilization age to avert her death or for which the delay necessary to determine postfertilization age will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. No condition shall be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.
(f) "Physician" means any person licensed to practice medicine and surgery or osteopathic medicine and surgery in this state.
(g) "Post-fertilization age" means the age of the unborn child as calculated from the fusion of a human spermatozoon with a human ovum.
(h) "Probable post-fertilization age of the unborn child" means what, in reasonable medical judgment, will with reasonable probability be the post-fertilization age of the unborn child at the time the abortion is planned to be performed or induced.
(i) "Reasonable medical judgment" means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
(j) "Unborn child" or "fetus" each mean an individual organism of the species homo sapiens from fertilization until live birth.
(k) "Woman" means a female human being whether or not she has reached the age of majority.
SECTION 4. (1) Except in the case of a medical emergency, no abortion shall be performed or induced or be attempted to be performed or induced unless the physician performing or inducing it has first made a determination of the probable post-fertilization age of the unborn child or relied upon such a determination made by another physician. In making such a determination, the physician shall make such inquiries of the woman and perform or cause to be performed such medical examinations and tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions involved, would consider necessary to perform in making an accurate diagnosis with respect to post-fertilization age.
(2) Failure by any physician to conform to any requirement of this section constitutes "unprofessional conduct."
SECTION 5. (1) No person shall perform or induce or attempt to perform or induce an abortion upon a woman when it has been determined, by the physician performing or inducing or attempting to perform or induce the abortion or by another physician upon whose determination that physician relies, that the probable post-fertilization age of the woman's unborn child is twenty (20) or more weeks, unless, in reasonable medical judgment, she has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. No such greater risk shall be deemed to exist if it is based on a claim or diagnosis that the woman will engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major-bodily function.
(2) When an abortion upon a woman whose unborn child has been determined to have a probable post-fertilization age of twenty (20) or more weeks is not prohibited by subsection (1) of this section, the physician shall terminate the pregnancy in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive, unless, in reasonable medical judgment, termination of the pregnancy in that manner would pose a greater risk either of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, of the woman than would other available methods. No such greater risk shall be deemed to exist if it is based on a claim or diagnosis that the woman will engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.
SECTION 6. (1) Any physician who performs or induces or attempts to perform or induce an abortion shall report to the department, on a schedule and in accordance with forms and regulations adopted and promulgated by the department, that include:
(a) Postfertilization age:
(i) If a determination of probable postfertilization age was made, whether ultrasound was employed in making the determination, and the week of probable postfertilzation age determined.
(ii) If a determination of probable postfertilzation age was not made, the basis of the determination that a medical emergency existed.
(b) Method of abortion; which of the following was employed:
(i) Medication abortion (such as, but not limited to, mifepristone/misoprostol or methotRexate/misoprostol);
(ii) Manual vacuum aspiration;
(iii) Electrical vacuum aspiration;
(iv) Dilation and evacuation;
(v) Combined induction abortion and dilation and evacuation;
(vi) Induction abortion with prostaglandins;
(vii) Induction abortion with intra-amniotic instillation (such as, but not limited to, saline or urea);
(viii) Induction abortion, other;
(ix) Intact dilation and extraction (partial-birth); or
(x) Method not listed (specify).
(c) Whether an intra-fetal injection was used in an attempt to induce fetal demise (such as, but not limited to, intra-fetal potassium chloride or digoxin).
(d) Age and race of the patient.
(e) If the probable post-fertilization age was determined to be twenty (20) or more weeks, the basis of the determination that the pregnant woman had a condition which so complicated her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions.
(f) If the probable post-fertilization age was determined to be twenty (20) or more weeks, whether or not the method of abortion used was one that, in reasonable medical judgment, provided the best opportunity for the unborn child to survive and, if such a method was not used, the basis of the determination that termination of the pregnancy in that manner would pose a greater risk either of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, of the woman than would other available methods.
(2) Reports required by subsection (1) of this section shall not contain the name or the address of the patient whose pregnancy was terminated, nor shall the report contain any other information identifying the patient, except that each report shall contain a unique medical record identifying number, to enable matching the report to the patient's medical records. Such reports shall be maintained in strict confidence by the department, shall not be available for public inspection, and shall not be made available except:
(a) To the Attorney General or a district attorney with appropriate jurisdiction pursuant to a criminal investigation;
(b) To the Attorney General or a district attorney pursuant to a civil investigation of the grounds for an action under subsection (2) of Section 8 of this act; or
(c) Pursuant to court order in an action under Section 8 of this act.
(3) By June 30 of each year the department shall issue a public report providing statistics for the previous calendar year compiled from all of the reports covering that year submitted in accordance with this section for each of the items listed in subsection (1) of this section. Each such report shall also provide the statistics for all previous calendar years during which this section was in effect, adjusted to reflect any additional information from late or corrected reports. The Department shall take care to ensure that none of the information included in the public reports could reasonably lead to the identification of any pregnant woman upon whom an abortion was performed, induced, or attempted.
(4) Any physician who fails to submit a report by the end of thirty (30) days following the due date shall be subject to a late fee of One Thousand Dollars ($1,000.00) for each additional thirty-day period or portion of a thirty-day period the report is overdue. Any physician required to report in accordance with this act who has not submitted a report, or has submitted only an incomplete report, more than six (6) months following the due date, may, in an action brought by the department, be directed by a court of competent jurisdiction to submit a complete report within a period stated by court order or be subject to civil contempt. Intentional or reckless failure by any physician to conform to any requirement of this section, other than late filing of a report, constitutes "unprofessional conduct." Intentional or reckless failure by any physician to submit a complete report in accordance with a court order constitutes "unprofessional conduct." Intentional or reckless falsification of any report required under this section is a misdemeanor punishable by a fine of up to One Thousand Dollars ($1,000.00) or imprisonment in the county jail for up to one (1) year, or both.
(5) Within ninety (90) days of the effective date of this act, the Department of Health shall adopt and promulgate forms and regulations to assist in compliance with this section. Subsection (1) of this section shall take effect so as to require reports regarding all abortions performed or induced on and after the first day of the first calendar month following the effective date of such rules.
SECTION 7. Any person who intentionally or recklessly performs or induces or attempts to perform or induce an abortion in violation of this act shall be guilty of a felony punishable by a fine of up to Five Thousand Dollars ($5,000.00) or imprisonment in the custody of the Department of Corrections for up to five (5) years, or both. No penalty may be assessed against the woman upon whom the abortion is performed or induced or attempted to be performed or induced.
SECTION 8. (1) Any woman upon whom an abortion has been performed or induced in violation of this act, or the father of the unborn child who was the subject of such an abortion, may maintain an action against the person who performed or induced the abortion in intentional or reckless violation of this act for actual and punitive damages. Any woman upon whom an abortion has been attempted in violation of this act may maintain an action against the person who attempted to perform or induce the abortion in an intentional or reckless violation of this act for actual and punitive damages.
(2) A cause of action for injunctive relief against any person who has intentionally or recklessly violated this act may be maintained by the woman upon whom an abortion was performed or induced or attempted to be performed or induced in violation of this act; by any person who is the spouse, parent, sibling or guardian of, or a current or former licensed health care provider of, the woman upon whom an abortion has been performed or induced or attempted to be performed or induced in violation of this act; by a county attorney with appropriate jurisdiction; or by the Attorney General. The injunction shall prevent the abortion provider from performing or inducing or attempting to perform or induce further abortions in violation of this act in this state.
(3) If judgment is rendered in favor of the plaintiff in an action described in this section, the court shall also render judgment for a reasonable attorney's fee in favor of the plaintiff against the defendant.
(4) If judgment is rendered in favor of the defendant and the court finds that the plaintiff's suit was frivolous and brought in bad faith, the court shall also render judgment for a reasonable attorney's fee in favor of the defendant against the plaintiff.
(5) No damages or attorney's fee may be assessed against the woman upon whom an abortion was performed or induced or attempted to be performed or induced except in accordance with subsection (4) of this section.
SECTION 9. In every civil or criminal proceeding or action brought under this act, the court shall rule whether the anonymity of any woman upon whom an abortion has been performed or induced or attempted to be performed or induced shall be preserved from public disclosure if she does not give her consent to such disclosure. The court, upon motion or sua sponte, shall make such a ruling and, upon determining that her anonymity should be preserved, shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity from public disclosure. Each such order shall be accompanied by specific written findings explaining why the anonymity of the woman should be preserved from public disclosure, why the order is essential to that end, how the order is narrowly tailored to serve that interest, and why no reasonable less restrictive alternative exists. In the absence of written consent of the woman upon whom an abortion has been performed or induced or attempted to be performed or induced, anyone, other than a public official, who brings an action under subsections (1) or (2) of Section 8 shall do so under a pseudonym. This section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant or from attorneys for the defendant.
SECTION 10. (1) There is created in the state treasury 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 Attorney General in relation to actions surrounding defense of this law.
(2) The fund shall be maintained by the Department of Health.
(3) The fund shall consist of: (a) appropriations made to the account by the Legislature; (b) any donations, gifts, or grants made to the account.
(4) The fund shall retain the interest income derived from the monies credited to the fund and any monies remaining in the fund at the end of a fiscal year shall remain in the fund.
SECTION 11. This act shall not be construed to repeal, expand or modify, by implication or otherwise, any other provision of law or any otherwise applicable provision of law regulating or restricting abortion. An abortion that complies with this act but violates the provisions of any other provision of law or any otherwise applicable provision of law shall be deemed unlawful as provided in such provision. An abortion that complies with the provisions of any other provision of law or any otherwise applicable provision of law regulating or restricting abortion but violates this act shall be governed by such other provision of law. If some or all of the provisions of this act are ever temporarily or permanently restrained or enjoined by judicial order, all other provisions of law regulating or restricting abortion shall be enforced as though such restrained or enjoined provisions had not been adopted; provided, however, that whenever such temporary or permanent restraining order of injunction is stayed or dissolved, or otherwise ceases to have effect, such provisions shall have full force and effect.
SECTION 12. Section 41-41-33, Mississippi Code of 1972, is amended as follows:
41-41-33. (1) Except as otherwise provided in House Bill No.______, 2012 Regular Session, no abortion shall be performed or induced except with the voluntary and informed consent of the woman upon whom the abortion is to be performed or induced. Except in the case of a medical emergency, consent to an abortion is voluntary and informed if and only if:
(a) The woman is told the following by the physician who is to perform or induce the abortion or by the referring physician, orally and in person, at least twenty-four (24) hours before the abortion:
(i) The name of the physician who will perform or induce the abortion;
(ii) The particular medical risks associated with the particular abortion procedure to be employed including, when medically accurate, the risks of infection, hemorrhage and breast cancer, and the danger to subsequent pregnancies and infertility;
(iii) The probable gestational age of the unborn child at the time the abortion is to be performed or induced; and
(iv) The medical risks associated with carrying her child to term.
(b) The woman is informed, by the physician or his agent, orally and in person, at least twenty-four (24) hours before the abortion:
(i) That medical assistance benefits may be available for prenatal care, childbirth and neonatal care;
(ii) That the father is liable to assist in the support of her child, even in instances in which the father has offered to pay for the abortion;
(iii) That there are available services provided by public and private agencies which provide pregnancy prevention counseling and medical referrals for obtaining pregnancy prevention medications or devices; and
(iv) That she has the right to review the printed materials described in Section 41-41-35(1)(a), (b) and (c). The physician or his agent shall orally inform the woman that those materials have been provided by the State of Mississippi and that they describe the unborn child and list agencies that offer alternatives to abortion. If the woman chooses to view those materials, copies of them shall be furnished to her. The physician or his agent may disassociate himself or themselves from those materials, and may comment or refrain from comment on them as he chooses. The physician or his agent shall provide the woman with the printed materials described in Section 41-41-35(1)(d).
(c) The woman certifies in writing before the abortion that the information described in paragraphs (a) and (b) of this section has been furnished to her, and that she has been informed of her opportunity to review the information referred to in subparagraph (iv) of paragraph (b) of this section.
(d) Before the abortion is performed or induced, the physician who is to perform or induce the abortion receives a copy of the written certification prescribed by this section.
(2) The State Department of Health shall enforce the provisions of Sections 41-41-31 through 41-41-39 at abortion facilities, as defined in Section 41-75-1.
SECTION 13. Section 41-41-53, Mississippi Code of 1972, is amended as follows:
41-41-53. (1) Except as otherwise provided in House Bill No.____, 2012 Regular Session and in subsections (2) and (3) of this section, no person shall perform an abortion upon an unemancipated minor unless he or his agent first obtains the written consent of both parents or the legal guardian of the minor.
(2) (a) If the minor's parents are divorced or otherwise unmarried and living separate and apart, then the written consent of the parent with primary custody, care and control of such minor shall be sufficient.
(b) If the minor's parents are married and one (1) parent is not available to the person performing the abortion in a reasonable time and manner, then the written consent of the parent who is available shall be sufficient.
(c) If the minor's pregnancy was caused by sexual intercourse with the minor's natural father, adoptive father or stepfather, then the written consent of the minor's mother shall be sufficient.
(3) A minor who elects not to seek or does not obtain consent from her parents or legal guardian under this section may petition, on her own behalf or by next friend, the chancery court in the county in which the minor resides or in the county in which the abortion is to be performed for a waiver of the consent requirement of this section pursuant to the procedures of Section 41-41-55.
SECTION 14. Section 41-41-77, Mississippi Code of 1972, is amended as follows:
41-41-77. (1) A physician shall file a written report with the State Department of Health regarding each patient who comes under the physician's professional care and requires medical treatment or suffers death that the attending physician has a reasonable basis to believe is a primary, secondary, or tertiary result of an induced abortion.
(2) These reports shall be submitted within thirty (30) days of the discharge or death of the patient treated for the complication.
(3) The department shall summarize aggregate data from the reports required under this section for purposes of inclusion into the annual Vital Statistics Report.
(4) The department shall develop and distribute or make available online in a downloadable format a standardized form for the report required under this section.
(5) The department shall communicate this reporting requirement to all medical professional organizations, licensed physicians, hospitals, emergency rooms, abortion facilities, Department of Health clinics and ambulatory surgical facilities operating in the state.
(6) The department shall destroy each individual report required by this section and each copy of the report after retaining the report for five (5) years after the date the report is received.
(7) The report required under this section shall not contain the name of the woman, common identifiers such as her social security number or motor vehicle operator's license number or other information or identifiers that would make it possible to identify in any manner or under any circumstances an individual who has obtained or seeks to obtain an abortion. A state agency shall not compare data in an electronic or other information system file with data in another electronic or other information system that would result in identifying in any manner or under any circumstances an individual obtaining or seeking to obtain an abortion. Statistical information that may reveal the identity of a woman obtaining or seeking to obtain an abortion shall not be maintained.
(8) The department or an employee of the department shall not disclose to a person or entity outside the department the reports or the contents of the reports required under this section in a manner or fashion as to permit the person or entity to whom the report is disclosed to identify in any way the person who is the subject of the report.
(9) Disclosure of confidential identifying information in violation of this section shall constitute a felony which, upon conviction, shall be punished by imprisonment in the State Penitentiary for not more than three (3) years, or a fine of not more than Five Thousand Dollars ($5,000.00), or both.
(10) Physicians shall comply with the reporting requirements of House Bill No.____, 2012 Regular Session.
SECTION 15. This act shall take effect and be in force from and after July 1, 2012.
