SF 91 (LSB 1763XS (3) 86)

SENATE FILE 91

BY  ZAUN, SINCLAIR, WHITVER, CHAPMAN, and CHELGREN

A BILL FOR

An Act relating to abortions including prohibiting late-term abortions with certain exceptions, providing penalties, and including an effective date provision.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  FINDINGS.  The general assembly finds all of the following:
   1.  Abortion can cause serious short-term and long-term physical and psychological complications for women including but not limited to uterine perforation, uterine scarring, cervical perforation or other injury, infection, bleeding, hemorrhage, blood clots, failure to actually terminate the pregnancy, incomplete abortion or retained tissue, pelvic inflammatory disease, endometritis, missed ectopic pregnancy, cardiac arrest, respiratory arrest, renal failure, metabolic disorder, shock, embolism, coma, placenta previa in subsequent pregnancies, preterm delivery in subsequent pregnancies, free fluid in the abdomen, organ damage, adverse reactions to anesthesia and other drugs, psychological or emotional complications such as depression, anxiety, sleeping disorders, and death.
   2.  Abortion has a higher medical risk when the procedure is performed later in the pregnancy. Compared to an abortion at eight weeks’ gestation or earlier, the relative risk increases exponentially at higher gestations. The incidence of major complications is highest after twenty weeks of gestation.
   3.  The state has a legitimate concern for the public’s health and safety.
   4.  The state has a legitimate interest from the outset of pregnancy in protecting the health of the woman. More specifically, the state has a legitimate concern with the health of women who undergo abortions.
   5.  There is substantial evidence that by at least twenty weeks after fertilization, an unborn child has the physical structures necessary to experience pain.
   6.  There is substantial evidence that by twenty weeks after fertilization, an unborn child seeks to evade certain stimuli in a manner which, in an infant or an adult, would be interpreted as a response to pain.
   7.  Anesthesia is routinely administered to an unborn child twenty weeks or more after fertilization when the unborn child undergoes prenatal surgery.
   8.  Even before twenty weeks after fertilization, the unborn child has been observed to exhibit hormonal stress responses to painful stimuli, and a reduction in such response results when pain medication is administered directly to the unborn child.
   9.  It is the purpose of the state of Iowa to assert a compelling state interest in protecting the unborn child from the stage at which substantial medical evidence indicates the unborn child is capable of feeling pain.
    Sec. 2.  NEW SECTION.  146A.1  Definitions.

   As used in this chapter, unless the context otherwise requires:

   1.  “Abortion” means abortion as defined in section 146.1.
   2.  “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 inducing of an abortion.
   3.  “Department” means the department of public health.
   4.  “Fertilization” means the fusion of a human spermatozoon with a human ovum.
   5.  “Human pregnancy” means an individual organism of the species homo sapiens from fertilization until live birth.
   6.  “Medical emergency” means a condition which, in reasonable medical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of the human pregnancy to avert the woman’s death or for which a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function. “Medical emergency” does not include a condition which is based on a claim or diagnosis that the pregnant woman will engage in conduct which would result in the pregnant woman’s death or in substantial and irreversible physical impairment of a major bodily function.
   7.  “Medical facility” means any public or private hospital, clinic, center, medical school, medical training institution, health care facility, physician’s office, infirmary, dispensary, ambulatory surgical center, or other institution or location where medical care is provided to any person.
   8.  “Physician” means a person licensed under chapter 148.
   9.  “Postfertilization age” means the age of the human pregnancy as calculated from the fertilization of the human ovum.
   10.  “Probable postfertilization age” means what, in reasonable medical judgment, will with reasonable probability be the postfertilization age of the human pregnancy at the time the abortion is to be performed.
   11.  “Reasonable medical judgment” means a medical judgment made by a reasonably prudent physician who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
   12.  “Unborn child” means a human pregnancy in the postembryonic stage.
    Sec. 3.  NEW SECTION.  146A.2  Determination of postfertilization age —— abortion prohibited twenty or more weeks postfertilization —— exceptions —— reporting requirements —— penalties.
   1.  Except in the case of a medical emergency, an abortion shall not be performed or induced or be attempted to be performed or induced unless the physician performing or inducing the abortion has first made a determination of the probable postfertilization age of the human pregnancy or relied upon such a determination made by another physician. In making such a determination, a physician shall make such inquiries of the pregnant woman and perform or cause to be performed such medical examinations and tests the physician considers necessary in making a reasonable medical judgment to accurately determine the postfertilization age of the human pregnancy.
   2.  a.  A physician shall not perform or induce or attempt to perform or induce an abortion upon a pregnant woman when it has been determined, by the physician performing or inducing the abortion or by another physician upon whose determination that physician relies, that the probable postfertilization age of the human pregnancy is twenty or more weeks unless, in the physician’s reasonable medical judgment, any of the following applies:
   (1)  The pregnant woman has a condition which the physician deems a medical emergency.
   (2)  It is necessary to preserve the life of the unborn child.
   b.  If an abortion is performed or induced under this subsection, the physician shall terminate the human pregnancy in the manner which, in the physician’s reasonable medical judgment, provides the best opportunity for the unborn child to survive, unless, in the physician’s reasonable medical judgment, termination of the human pregnancy in that manner would pose a greater risk than any other available method of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function. A greater risk shall not be deemed to exist if it is based on a claim or diagnosis that the pregnant woman will engage in conduct which would result in the pregnant woman’s death or in substantial and irreversible physical impairment of a major bodily function.
   3.  A 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 rules adopted by the department, all of the following:
   a.  If a determination of probable postfertilization age of the human pregnancy was made, the probable postfertilization age determined and the method and basis of the determination.
   b.  If a determination of probable postfertilization age of the human pregnancy was not made, the basis of the determination that a medical emergency existed.
   c.  If the probable postfertilization age of the human pregnancy was determined to be twenty or more weeks, the basis of the determination of a medical emergency.
   d.  The method used for the abortion and, in the case of an abortion performed when the probable postfertilization age was determined to be twenty or more weeks, whether the method of abortion used was one that, in the physician’s reasonable medical judgment, provided the best opportunity for the unborn child to survive or, if such a method was not used, the basis of the determination that termination of the human pregnancy in that manner would pose a greater risk than would any other available method of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function.
   4.  a.  By June 30, annually, the department shall issue a public report providing statistics for the previous calendar year, compiled from the reports for that year submitted in accordance with subsection 3. Each report shall also provide the statistics for all previous calendar years, adjusted to reflect any additional information from late or corrected reports. The department shall ensure that none of the information included in the public reports could reasonably lead to the identification of any woman upon whom an abortion was performed.
   b.  (1)  A physician who fails to submit a report by the end of thirty days following the due date shall be subject to a late fee of five hundred dollars for each additional thirty-day period or portion of a thirty-day period the report is overdue.
   (2)  A physician required to report in accordance with subsection 3 who has not submitted a report or who has submitted only an incomplete report more than one year following the due date, may, in an action brought in the manner in which actions are brought to enforce chapter 148, be directed by a court of competent jurisdiction to submit a complete report within a time period stated by court order or be subject to contempt of court.
   (3)  A physician who intentionally or recklessly falsifies a report required under this section is subject to a civil penalty of one hundred dollars.
   5.  The department shall adopt rules to implement this section.
    Sec. 4.  NEW SECTION.  146A.3  Civil and criminal actions

—— penalties.
   1.  Failure of a physician to comply with any provision of section 146A.2, with the exception of the late filing of a report or failure to submit a complete report in compliance with a court order, is grounds for license discipline under chapter 148.
   2.  A physician who intentionally or recklessly performs or attempts to perform an abortion in violation of this chapter is guilty of a class “C” felony.
   3.  A medical facility licensed in this state in which abortions are performed or induced in violation of this chapter is subject to immediate revocation of licensure.
   4.  A medical facility licensed in this state in which abortions are performed or induced in violation of this chapter is ineligible to receive state funding and is subject to repayment of any state funds received from the state during the time after which an abortion in violation of this chapter was performed or induced.
   5.  A woman upon whom an abortion has been performed in violation of this chapter or the biological father may maintain an action against the physician who performed the abortion in intentional or reckless violation of this chapter for actual damages.
   6.  A woman upon whom an abortion has been attempted in violation of this chapter may maintain an action against the physician who attempted to perform the abortion in intentional or reckless violation of this chapter for actual damages.
   7.  A cause of action for injunctive relief to prevent a physician from performing abortions may be maintained against a physician who has intentionally violated this chapter by the woman upon whom the abortion was performed or attempted to be performed, by the spouse of the woman, by a parent or guardian of the woman if the woman is less than eighteen years of age or unmarried at the time the abortion was performed or attempted to be performed, by a current or former licensed health care provider of the woman, by a county attorney with appropriate jurisdiction, or by the attorney general.
   8.  A woman upon whom an abortion was performed or was attempted to be performed shall not be subject to prosecution for a violation of this chapter.
   9.  If the plaintiff prevails in an action brought under this section, the plaintiff shall be entitled to an award for reasonable attorney fees.
   10.  If the defendant prevails in an action brought under this section and the court finds that the plaintiff’s suit was frivolous and brought in bad faith, the defendant shall be entitled to an award for reasonable attorney fees.
   11.  Damages and attorney fees shall not be assessed against the woman upon whom an abortion was performed or attempted to be performed except as provided in subsection 10.
   12.  In a civil or criminal proceeding or action brought under this chapter, the court shall rule whether the anonymity of any woman upon whom an abortion has been performed or attempted shall be preserved from public disclosure if the woman does not provide consent to such disclosure. The court, upon motion or on its own motion, shall make such a ruling and, upon determining that the woman’s 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 the woman’s 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 attempted, anyone, other than a public official, who brings an action under this section shall do so under a pseudonym. This subsection shall not be construed to conceal the identity of the plaintiff or of witnesses from the defendant or from attorneys for the defendant.
    Sec. 5.  NEW SECTION.  146A.4  Construction.
   1.  Nothing in this chapter shall be construed as creating or recognizing a right to an abortion.
   2.  Nothing in this chapter shall be construed as determining life to begin at twenty weeks’ gestation. Instead, it is recognized that life begins at conception.
    Sec. 6.  NEW SECTION.  146A.5  Severability clause.

   If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or application of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
    Sec. 7.  EFFECTIVE UPON ENACTMENT.  This Act, being deemed of immediate importance, takes effect upon enactment.
EXPLANATION
The inclusion of this explanation does not constitute agreement with

the explanation’s substance by the members of the general assembly.
   This bill relates to abortions. The bill provides findings of the general assembly and definitions.
   The bill provides that, except in the case of a medical emergency, an abortion shall not be performed or induced or be attempted to be performed or induced unless the physician performing or inducing the abortion has first made a determination of the probable postfertilization age of the human pregnancy. Additionally, the bill prohibits a physician from performing or inducing or attempting to perform or induce an abortion upon a pregnant woman when it has been determined, that the probable postfertilization age is 20 or more weeks unless, in the physician’s reasonable medical judgment, either the pregnant woman has a condition which the physician deems a medical emergency or it is necessary to preserve the life of the unborn child. If an abortion is performed or induced when the probable postfertilization age is 20 or more weeks, the physician is required to terminate the pregnancy in a manner which, in the physician’s reasonable medical judgment, provides the best opportunity for the unborn child to survive unless such termination 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 of the woman than would another available method.
   The bill also requires certain reports to be filed by a physician who performs or induces or attempts to perform or induce an abortion with the department of public health, on a schedule and in accordance with forms and rules adopted by the department. The department is required to compile the information collected annually and issue a public report, ensuring 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. The bill provides monetary penalties for a physician who fails to submit a report in a timely manner, submits an incomplete report, or intentionally or recklessly falsifies a required report.
   The bill provides for civil and criminal actions and penalties relating to violations of the bill. Failure of a physician to comply with any provision, with the exception of the late filing of a report or failure to submit a complete report in compliance with a court order, is grounds for license discipline. A physician who intentionally or recklessly performs or attempts to perform an abortion in violation of the bill is guilty of a class “C” felony, which is punishable by confinement for no more than 10 years and a fine of at least $1,000 but not more than $10,000. The bill also provides that a medical facility licensed in the state in which abortions are performed or induced in violation of the bill is subject to immediate revocation of licensure. Additionally, a medical facility licensed in this state in which abortions are performed or induced in violation of the bill is ineligible to receive state funding and is subject to repayment of any state funds received from the state during the time after which an abortion in violation of the bill was performed or induced. However, the woman upon whom the abortion was performed or was attempted to be performed is not subject to prosecution for a violation of the bill. The bill provides for the maintaining of actions by certain people based on alleged violations of the bill. A woman upon whom an abortion has been performed in violation of the bill or the biological father may maintain an action against the physician who performed the abortion in intentional or reckless violation of the bill for actual damages. A woman upon whom an abortion has been attempted in violation of the bill may maintain an action against the physician who attempted to perform the abortion in intentional or reckless violation of the bill for actual damages. Additionally, a cause of action for injunctive relief to prevent a physician from performing abortions may be maintained against a physician who has intentionally violated the bill by the woman upon whom the abortion was performed or attempted to be performed, by the spouse of the woman, by a parent or guardian of the woman if the woman is less than 18 years of age or unmarried at the time the abortion was performed or attempted to be performed, by a current or former licensed health care provider of the woman, by a county attorney with appropriate jurisdiction, or by the attorney general.
   The bill provides a process for preserving the anonymity of the woman upon whom an abortion has been performed or attempted from public disclosure if the woman does not provide consent to such disclosure during any proceeding or action under the bill.
   The bill also provides that the bill is not to be construed as creating or recognizing a right to an abortion, and the bill is not to be construed as determining life to begin at 20 weeks’ gestation; instead, it is recognized that life begins at conception.
   The bill includes a severability clause as is applicable to every Act or statute pursuant to Code section 4.12. 
   The bill takes effect upon enactment.