Senate File 471 H-1251 Amend Senate File 471, as amended, passed, and reprinted by 1 the Senate, as follows: 2 1. By striking everything after the enacting clause and 3 inserting: 4 < Section 1. NEW SECTION . 146B.1 Definitions. 5 As used in this chapter, unless the context otherwise 6 requires: 7 1. “Abortion” means the termination of a human pregnancy 8 with the intent other than to produce a live birth or to remove 9 a dead fetus. 10 2. “Attempt to perform an abortion” means an act, or 11 an omission of a statutorily required act, that, under the 12 circumstances as the actor believes them to be, constitutes a 13 substantial step in a course of conduct planned to culminate in 14 the performing of an abortion. 15 3. “Department” means the department of public health. 16 4. “Fertilization” means the fusion of a human spermatozoon 17 with a human ovum. 18 5. “Major bodily function” includes but is not limited 19 to functions of the immune system, normal cell growth, and 20 digestive, bowel, bladder, neurological, brain, respiratory, 21 circulatory, endocrine, and reproductive functions. 22 6. “Medical emergency” means a situation in which an 23 abortion is performed to preserve the life of the pregnant 24 woman whose life is endangered by a physical disorder, physical 25 illness, or physical injury, including a life-endangering 26 physical condition caused by or arising from the pregnancy, or 27 when continuation of the pregnancy will create a serious risk 28 of substantial and irreversible impairment of a major bodily 29 function of the pregnant woman. 30 7. “Medical facility” means any public or private hospital, 31 clinic, center, medical school, medical training institution, 32 health care facility, physician’s office, infirmary, 33 dispensary, ambulatory surgical center, or other institution or 34 location where medical care is provided to any person. 35 -1- SF471.1863 (2) 87 pf/nh 1/ 7 #1.
8. “Perform” , “performed” , or “performing” , relative to an 1 abortion, means the use of any means, including medical or 2 surgical, to terminate the pregnancy of a woman known to be 3 pregnant with the intent other than to produce a live birth or 4 to remove a dead fetus. 5 9. “Physician” means a person licensed under chapter 148. 6 10. “Postfertilization age” means the age of the unborn 7 child as calculated from fertilization. 8 11. “Probable postfertilization age” means what, in 9 reasonable medical judgment, will with reasonable probability 10 be the postfertilization age of the unborn child at the time 11 the abortion is to be performed. 12 12. “Reasonable medical judgment” means a medical judgment 13 made by a reasonably prudent physician who is knowledgeable 14 about the case and the treatment possibilities with respect to 15 the medical conditions involved. 16 13. “Unborn child” means an individual organism of the 17 species homo sapiens from fertilization until live birth. 18 Sec. 2. NEW SECTION . 146B.2 Determination of 19 postfertilization age —— abortion prohibited at twenty or 20 more weeks postfertilization age —— exceptions —— reporting 21 requirements —— penalties. 22 1. Except in the case of a medical emergency, in addition 23 to compliance with the prerequisites of chapter 146A, an 24 abortion shall not be performed or be attempted to be performed 25 unless the physician performing the abortion has first made 26 a determination of the probable postfertilization age of the 27 unborn child or relied upon such a determination made by 28 another physician. In making such a determination, a physician 29 shall make such inquiries of the pregnant woman and perform or 30 cause to be performed such medical examinations and tests the 31 physician considers necessary in making a reasonable medical 32 judgment to accurately determine the postfertilization age of 33 the unborn child. 34 2. a. A physician shall not perform or attempt to perform 35 -2- SF471.1863 (2) 87 pf/nh 2/ 7
an abortion upon a pregnant woman when it has been determined, 1 by the physician performing the abortion or by another 2 physician upon whose determination that physician relies, 3 that the probable postfertilization age of the unborn child 4 is twenty or more weeks unless, in the physician’s reasonable 5 medical judgment, any of the following applies: 6 (1) The pregnant woman has a condition which the physician 7 deems a medical emergency. 8 (2) The abortion is necessary to preserve the life of an 9 unborn child. 10 b. If an abortion is performed under this subsection, the 11 physician shall terminate the human pregnancy in the manner 12 which, in the physician’s reasonable medical judgment, provides 13 the best opportunity for an unborn child to survive, unless, in 14 the physician’s reasonable medical judgment, termination of the 15 human pregnancy in that manner would pose a greater risk than 16 any other available method of the death of the pregnant woman 17 or of the substantial and irreversible physical impairment of a 18 major bodily function. A greater risk shall not be deemed to 19 exist if it is based on a claim or diagnosis that the pregnant 20 woman will engage in conduct which would result in the pregnant 21 woman’s death or in substantial and irreversible physical 22 impairment of a major bodily function. 23 3. A physician who performs or attempts to perform an 24 abortion shall report to the department, on a schedule and in 25 accordance with forms and rules adopted by the department, all 26 of the following: 27 a. If a determination of probable postfertilization age of 28 the unborn child was made, the probable postfertilization age 29 determined and the method and basis of the determination. 30 b. If a determination of probable postfertilization age of 31 the unborn child was not made, the basis of the determination 32 that a medical emergency existed. 33 c. If the probable postfertilization age of the unborn 34 child was determined to be twenty or more weeks, the basis of 35 -3- SF471.1863 (2) 87 pf/nh 3/ 7
the determination of a medical emergency, or the basis of the 1 determination that the abortion was necessary to preserve the 2 life of an unborn child. 3 d. The method used for the abortion and, in the case of 4 an abortion performed when the probable postfertilization age 5 was determined to be twenty or more weeks, whether the method 6 of abortion used was one that, in the physician’s reasonable 7 medical judgment, provided the best opportunity for an unborn 8 child to survive or, if such a method was not used, the basis 9 of the determination that termination of the human pregnancy 10 in that manner would pose a greater risk than would any other 11 available method of the death of the pregnant woman or of the 12 substantial and irreversible physical impairment of a major 13 bodily function. 14 4. a. By June 30, annually, the department shall issue a 15 public report providing statistics for the previous calendar 16 year, compiled from the reports for that year submitted in 17 accordance with subsection 3. The department shall ensure that 18 none of the information included in the public reports could 19 reasonably lead to the identification of any woman upon whom an 20 abortion was performed. 21 b. (1) A physician who fails to submit a report by the end 22 of thirty days following the due date shall be subject to a 23 late fee of five hundred dollars for each additional thirty-day 24 period or portion of a thirty-day period the report is overdue. 25 (2) A physician required to report in accordance with 26 subsection 3 who has not submitted a report or who has 27 submitted only an incomplete report more than one year 28 following the due date, may, in an action brought in the 29 manner in which actions are brought to enforce chapter 148, 30 be directed by a court of competent jurisdiction to submit a 31 complete report within a time period stated by court order or 32 be subject to contempt of court. 33 (3) A physician who intentionally or recklessly falsifies 34 a report required under this section is subject to a civil 35 -4- SF471.1863 (2) 87 pf/nh 4/ 7
penalty of one hundred dollars. 1 5. Any medical facility in which a physician is authorized 2 to perform an abortion shall implement written medical 3 policies and procedures consistent with the requirements and 4 prohibitions of this chapter. 5 6. The department shall adopt rules to implement this 6 section. 7 Sec. 3. NEW SECTION . 146B.3 Civil actions and penalties. 8 1. Failure of a physician to comply with any provision of 9 section 146B.2, with the exception of the late filing of a 10 report or failure to submit a complete report in compliance 11 with a court order, is grounds for licensee discipline under 12 chapter 148. 13 2. A woman upon whom an abortion has been performed in 14 violation of this chapter may maintain an action against the 15 physician who performed the abortion in intentional or reckless 16 violation of this chapter for actual damages. 17 3. A woman upon whom an abortion has been attempted in 18 violation of this chapter may maintain an action against the 19 physician who attempted the abortion in intentional or reckless 20 violation of this chapter for actual damages. 21 4. A cause of action for injunctive relief to prevent a 22 physician from performing abortions may be maintained against a 23 physician who has intentionally violated this chapter by the 24 woman upon whom the abortion was performed or attempted, by 25 a parent or guardian of the woman if the woman is less than 26 eighteen years of age at the time the abortion was performed 27 or attempted, by a current or former licensed health care 28 provider of the woman, by a county attorney with appropriate 29 jurisdiction, or by the attorney general. 30 5. If the plaintiff prevails in an action brought under 31 this section, the plaintiff shall be entitled to an award for 32 reasonable attorney fees. 33 6. If the defendant prevails in an action brought under 34 this section and the court finds that the plaintiff’s suit was 35 -5- SF471.1863 (2) 87 pf/nh 5/ 7
frivolous and brought in bad faith, the defendant shall be 1 entitled to an award for reasonable attorney fees. 2 7. Damages and attorney fees shall not be assessed against 3 the woman upon whom an abortion was performed or attempted 4 except as provided in subsection 6. 5 8. In a civil proceeding or action brought under this 6 chapter, the court shall rule whether the anonymity of any 7 woman upon whom an abortion has been performed or attempted 8 shall be preserved from public disclosure if the woman does not 9 provide consent to such disclosure. The court, upon motion 10 or on its own motion, shall make such a ruling and, upon 11 determining that the woman’s anonymity should be preserved, 12 shall issue orders to the parties, witnesses, and counsel 13 and shall direct the sealing of the record and exclusion of 14 individuals from courtrooms or hearing rooms to the extent 15 necessary to safeguard the woman’s identity from public 16 disclosure. Each such order shall be accompanied by specific 17 written findings explaining why the anonymity of the woman 18 should be preserved from public disclosure, why the order is 19 essential to that end, how the order is narrowly tailored to 20 serve that interest, and why no reasonable less restrictive 21 alternative exists. In the absence of written consent of the 22 woman upon whom an abortion has been performed or attempted, 23 anyone, other than a public official, who brings an action 24 under this section shall do so under a pseudonym. This 25 subsection shall not be construed to conceal the identity 26 of the plaintiff or of witnesses from the defendant or from 27 attorneys for the defendant. 28 9. This chapter shall not be construed to impose civil 29 or criminal liability on a woman upon whom an abortion is 30 performed or attempted. 31 Sec. 4. NEW SECTION . 146B.4 Construction. 32 1. Nothing in this chapter shall be construed as creating or 33 recognizing a right to an abortion. 34 2. Nothing in this chapter shall be construed as determining 35 -6- SF471.1863 (2) 87 pf/nh 6/ 7
life to begin at twenty weeks’ postfertilization. Instead, it 1 is recognized that life begins at fertilization. 2 Sec. 5. SEVERABILITY CLAUSE. If any provision of this Act 3 or its application to a person or circumstance is held invalid, 4 the invalidity does not affect other provisions of applications 5 of this Act which can be given effect without the invalid 6 provision or application, and to this end the provisions of 7 this Act are severable. > 8 2. Title page, by striking lines 1 and 2 and inserting 9 < An Act relating to prohibitions on abortion based on 10 postfertilization age, providing for licensee discipline, and 11 providing civil penalties. > 12 ______________________________ COMMITTEE ON HUMAN RESOURCES FRY of Clarke, Chairperson -7- SF471.1863 (2) 87 pf/nh 7/ 7 #2.