HF 877

as introduced - 83rd Legislature (2003 - 2004) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to health; prohibiting the procedure commonly 
  1.3             known as partial-birth abortion; providing criminal 
  1.4             penalties; proposing coding for new law in Minnesota 
  1.5             Statutes, chapter 145. 
  1.6   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.7      Section 1.  [SHORT TITLE.] 
  1.8      This act may be cited as the "Partial-birth Abortion Ban 
  1.9   Act of 2003." 
  1.10     Sec. 2.  [LEGISLATIVE FINDINGS.] 
  1.11     The legislature finds and declares the following: 
  1.12     (a) A moral, medical, and ethical consensus exists that the 
  1.13  practice of performing a partial-birth abortion, an abortion in 
  1.14  which a physician delivers an unborn child's body until only the 
  1.15  head remains inside the womb, punctures the back of the child's 
  1.16  skull with a sharp instrument, and sucks the child's brain out 
  1.17  before completing delivery of the dead infant, is a gruesome and 
  1.18  inhumane procedure that is never medically necessary and should 
  1.19  be prohibited. 
  1.20     (b) Rather than being an abortion procedure that is 
  1.21  embraced by the medical community, particularly among physicians 
  1.22  who routinely perform other abortion procedures, partial-birth 
  1.23  abortion remains a disfavored procedure that is not only 
  1.24  unnecessary to preserve the health of the mother, but, in fact, 
  1.25  poses serious risks to the long-term health of women and, in 
  2.1   some circumstances, their lives.  As a result, at least 27 
  2.2   states banned the procedure as did the United States Congress, 
  2.3   which voted to ban the procedure during the 104th, 105th, and 
  2.4   106th congresses. 
  2.5      (c) In Stenberg v. Carhart, 530 U.S. 914, 932 (2000), the 
  2.6   United States Supreme Court opined "that significant medical 
  2.7   authority supports the proposition that in some circumstances, 
  2.8   [partial-birth abortion] would be the safest procedure" for 
  2.9   pregnant women who wish to undergo an abortion.  Thus, the court 
  2.10  struck down the state of Nebraska's ban on partial-birth 
  2.11  abortion procedures, concluding that it placed an "undue burden" 
  2.12  on women seeking abortions because it failed to include an 
  2.13  exception for partial-birth abortions deemed necessary to 
  2.14  preserve the health of the mother. 
  2.15     (d) In reaching this conclusion, the court deferred to the 
  2.16  federal district court's factual findings that the partial-birth 
  2.17  abortion procedure was statistically and medically as safe as, 
  2.18  and in many circumstances safer than, alternative abortion 
  2.19  procedures. 
  2.20     (e) However, the great weight of evidence presented at the 
  2.21  Stenberg trial and other trials challenging partial-birth 
  2.22  abortion bans, as well as at extensive Congressional hearings, 
  2.23  demonstrates that a partial-birth abortion is never necessary to 
  2.24  preserve the health of a woman, poses significant health risks 
  2.25  to a woman upon whom the procedure is performed, and is outside 
  2.26  of the standard of medical care. 
  2.27     (f) Despite the dearth of evidence in the Stenberg trial 
  2.28  court record supporting the district court's findings, the 
  2.29  United States Court of Appeals for the Eighth Circuit and the 
  2.30  Supreme Court refused to set aside the district court's factual 
  2.31  findings because, under the applicable standard of appellate 
  2.32  review, they were not "clearly erroneous."  A finding of fact is 
  2.33  clearly erroneous "when although there is evidence to support 
  2.34  it, the reviewing court on the entire evidence is left with the 
  2.35  definite and firm conviction that a mistake has been 
  2.36  committed."  Anderson v. City of Bessemer City, North Carolina, 
  3.1   470 U.S. 564, 573 (1985).  Under this standard, "if the district 
  3.2   court's account of the evidence is plausible in light of the 
  3.3   record viewed in its entirety, the court of appeals may not 
  3.4   reverse it even though convinced that had it been sitting as the 
  3.5   trier of fact, it would have weighed the evidence differently."  
  3.6   Id. at 574. 
  3.7      (g) Thus, in Stenberg, the United States Supreme Court was 
  3.8   required to accept the very questionable findings issued by the 
  3.9   district court judge, the effect of which was to render null and 
  3.10  void the reasoned factual findings and policy determinations of 
  3.11  the United States Congress and at least 27 state legislatures. 
  3.12     (h) Partial-birth abortion poses serious risks to the 
  3.13  health of a woman undergoing the procedure.  Those risks 
  3.14  include, among other things:  an increase in a woman's risk of 
  3.15  suffering from cervical incompetence, a result of cervical 
  3.16  dilation making it difficult or impossible for a woman to 
  3.17  successfully carry a subsequent pregnancy to term; an increased 
  3.18  risk of uterine rupture, abruption, amniotic fluid embolus, and 
  3.19  trauma to the uterus as a result of converting the child to a 
  3.20  footling breech position, a procedure which, according to a 
  3.21  leading obstetrics textbook, "there are very few, if any, 
  3.22  indications for...other than for delivery of a second twin"; and 
  3.23  a risk of lacerations and secondary hemorrhaging due to the 
  3.24  doctor blindly forcing a sharp instrument into the base of the 
  3.25  unborn child's skull while the child is lodged in the birth 
  3.26  canal, an act which could result in severe bleeding, brings with 
  3.27  it the threat of shock, and could ultimately result in maternal 
  3.28  death. 
  3.29     (i) There is no credible medical evidence that 
  3.30  partial-birth abortions are safe or are safer than other 
  3.31  abortion procedures.  No controlled studies of partial-birth 
  3.32  abortions have been conducted nor have any comparative studies 
  3.33  been conducted to demonstrate the procedure's safety and 
  3.34  efficacy compared to other abortion methods.  Furthermore, there 
  3.35  have been no articles published in peer-reviewed journals that 
  3.36  establish that partial-birth abortions are superior in any way 
  4.1   to established abortion procedures.  Indeed, unlike other more 
  4.2   commonly used abortion procedures, there are currently no 
  4.3   medical schools that provide instruction on abortions that 
  4.4   include instruction in partial-birth abortions in their 
  4.5   curriculum. 
  4.6      (j) A prominent medical association has concluded that 
  4.7   partial-birth abortion is "not an accepted medical practice," 
  4.8   that it has "never been subject to even a minimal amount of the 
  4.9   normal medical practice development," that "the relative 
  4.10  advantages and disadvantages of the procedure in specific 
  4.11  circumstances remain unknown," and that "there is no consensus 
  4.12  among obstetricians about its use."  The association has further 
  4.13  noted that partial-birth abortion is broadly disfavored by both 
  4.14  medical experts and the public, is "ethically wrong," and "is 
  4.15  never the only appropriate procedure." 
  4.16     (k) Neither the plaintiff in Stenberg v. Carhart, nor the 
  4.17  experts who testified on his behalf, have identified a single 
  4.18  circumstance during which a partial-birth abortion was necessary 
  4.19  to preserve the health of a woman. 
  4.20     (l) The physician credited with developing the 
  4.21  partial-birth abortion procedure has testified that he has never 
  4.22  encountered a situation where a partial-birth abortion was 
  4.23  medically necessary to achieve the desired outcome and, thus, is 
  4.24  never medically necessary to preserve the health of a woman. 
  4.25     (m) A ban on the partial-birth abortion procedure will 
  4.26  therefore advance the health interests of pregnant women seeking 
  4.27  to terminate a pregnancy. 
  4.28     (n) In light of this overwhelming evidence, Congress and 
  4.29  the states have a compelling interest in prohibiting 
  4.30  partial-birth abortions.  In addition to promoting maternal 
  4.31  health, such a prohibition will draw a bright line that clearly 
  4.32  distinguishes abortion and infanticide, preserves the integrity 
  4.33  of the medical profession, and promotes respect for human life. 
  4.34     (o) Based upon Roe v. Wade, 410 U.S. 113 (1973) and Planned 
  4.35  Parenthood v. Casey, 505 U.S. 833 (1992), a governmental 
  4.36  interest in protecting the life of a child during the delivery 
  5.1   process arises by virtue of the fact that during a partial-birth 
  5.2   abortion, labor is induced and the birth process has begun.  
  5.3   This distinction was recognized in Roe when the court noted, 
  5.4   without comment, that the Texas parturition statute, which 
  5.5   prohibited one from killing a child "in a state of being born 
  5.6   and before actual birth," was not under attack.  This interest 
  5.7   becomes compelling as the child emerges from the maternal body.  
  5.8   A child that is completely born is a full, legal person entitled 
  5.9   to constitutional protections afforded a "person" under the 
  5.10  United States Constitution.  Partial-birth abortions involve the 
  5.11  killing of a child that is in the process, in fact mere inches 
  5.12  away from, becoming a "person."  Thus, the government has a 
  5.13  heightened interest in protecting the life of the partially born 
  5.14  child. 
  5.15     (p) This, too, has not gone unnoticed in the medical 
  5.16  community, where a prominent medical association has recognized 
  5.17  that partial-birth abortions are "ethically different from other 
  5.18  destructive abortion techniques because the fetus, normally 
  5.19  twenty weeks or longer in gestation, is killed outside of the 
  5.20  womb."  According to this medical association, the "'partial 
  5.21  birth' gives the fetus an autonomy which separates it from the 
  5.22  right of the woman to choose treatments for her own body." 
  5.23     (q) Partial-birth abortion also confuses the medical, 
  5.24  legal, and ethical duties of physicians to preserve and promote 
  5.25  life, as the physician acts directly against the physical life 
  5.26  of a child, whom the physician has just delivered, all but the 
  5.27  head, out of the womb, in order to end that life.  Partial-birth 
  5.28  abortion thus appropriates the terminology and techniques used 
  5.29  by obstetricians who preserve and protect the life of the mother 
  5.30  and the child in the delivery of living children and instead 
  5.31  uses those techniques to end the life of the partially born 
  5.32  child. 
  5.33     (r) Thus, by aborting a child in the manner that 
  5.34  purposefully seeks to kill the child after the child has begun 
  5.35  the process of birth, partial-birth abortion undermines the 
  5.36  public's perception of the appropriate role of a physician 
  6.1   during the delivery process and perverts a process during which 
  6.2   life is brought into the world in order to destroy a partially 
  6.3   born child. 
  6.4      (s) The gruesome and inhumane nature of the partial-birth 
  6.5   abortion procedure and its disturbing similarity to the killing 
  6.6   of a newborn infant promotes a complete disregard for infant 
  6.7   human life that can only be countered by a prohibition of the 
  6.8   procedure. 
  6.9      (t) The vast majority of babies killed during partial-birth 
  6.10  abortions are alive until the end of the procedure.  It is a 
  6.11  medical fact, however, that unborn infants at this stage can 
  6.12  feel pain when subjected to painful stimuli and that their 
  6.13  perception of this pain is even more intense than that of 
  6.14  newborn infants and older children when subjected to the same 
  6.15  stimuli.  Thus, during a partial-birth abortion procedure, the 
  6.16  child will fully experience the pain associated with piercing 
  6.17  the child's skull and sucking out the child's brain. 
  6.18     (u) Implicitly approving such a brutal and inhumane 
  6.19  procedure by choosing not to prohibit it will further coarsen 
  6.20  society to the humanity of not only newborns, but all vulnerable 
  6.21  and innocent human life, making it increasingly difficult to 
  6.22  protect such life.  Thus, the legislature has a compelling 
  6.23  interest in acting, indeed it must act, to prohibit this 
  6.24  inhumane procedure. 
  6.25     (v) For these reasons, the legislature finds that 
  6.26  partial-birth abortion is never medically indicated to preserve 
  6.27  the health of the mother, is in fact unrecognized as a valid 
  6.28  abortion procedure by the mainstream medical community, poses 
  6.29  additional health risks to the mother, blurs the line between 
  6.30  abortion and infanticide in the killing of a partially born 
  6.31  child just inches from birth, and confuses the role of the 
  6.32  physician in childbirth and should, therefore, be banned. 
  6.33     Sec. 3.  [145.4201] [PARTIAL-BIRTH ABORTION PROHIBITED.] 
  6.34     Subdivision 1.  [DEFINITIONS.] (a) For purposes of this 
  6.35  section, the terms used have the meanings given. 
  6.36     (b) "Partial-birth abortion" means an abortion in which the 
  7.1   person performing the abortion: 
  7.2      (1) deliberately and intentionally vaginally delivers a 
  7.3   living fetus until, in the case of a head-first presentation, 
  7.4   the entire fetal head is outside the body of the mother, or, in 
  7.5   the case of breech presentation, any part of the fetal trunk 
  7.6   past the navel is outside the body of the mother for the purpose 
  7.7   of performing an overt act that the person knows will kill the 
  7.8   partially delivered living fetus; and 
  7.9      (2) performs the overt act, other than completion of 
  7.10  delivery, that kills the partially delivered living fetus. 
  7.11     (c) "Physician" means a doctor of medicine or osteopathy 
  7.12  legally authorized to practice medicine and surgery in the 
  7.13  state, or any other individual legally authorized by the state 
  7.14  to perform abortions.  An individual who is not a physician or 
  7.15  not otherwise legally authorized by the state to perform 
  7.16  abortions, but who directly performs a partial-birth abortion, 
  7.17  is subject to the provisions of this section. 
  7.18     Subd. 2.  [PENALTY; EXCEPTION.] (a) A physician who 
  7.19  knowingly performs a partial-birth abortion and thereby kills a 
  7.20  human fetus shall be fined $10,000 or imprisoned not more than 
  7.21  two years, or both. 
  7.22     (b) This subdivision does not apply to a partial-birth 
  7.23  abortion that is necessary to save the life of a mother whose 
  7.24  life is endangered by a physical disorder, physical illness, or 
  7.25  physical injury, including a life-endangering physical condition 
  7.26  caused by or arising from the pregnancy itself. 
  7.27     Subd. 3.  [CIVIL RELIEF.] (a) The father, if married to the 
  7.28  mother at the time she receives a partial-birth abortion 
  7.29  procedure, and, if the mother has not attained the age of 18 
  7.30  years at the time of the abortion, the maternal grandparents of 
  7.31  the fetus, may in a civil action obtain appropriate relief, 
  7.32  unless the pregnancy resulted from the plaintiff's criminal 
  7.33  conduct or the plaintiff consented to the abortion. 
  7.34     (b) Relief under this subdivision includes: 
  7.35     (1) money damages for all injuries, psychological and 
  7.36  physical, occasioned by the violation of this section; and 
  8.1      (2) statutory damages equal to three times the cost of the 
  8.2   partial-birth abortion. 
  8.3      Subd. 4.  [HEARING.] (a) A defendant accused of an offense 
  8.4   under this section may seek a hearing before the board of 
  8.5   medical practice on whether the physician's conduct was 
  8.6   necessary to save the life of the mother whose life was 
  8.7   endangered by a physical disorder, physical illness, or physical 
  8.8   injury, including a life-endangering physical condition caused 
  8.9   by or arising from the pregnancy itself. 
  8.10     (b) The findings under paragraph (a) are admissible on that 
  8.11  issue at the trial of the defendant.  Upon a motion of the 
  8.12  defendant, the court shall delay the beginning of the trial for 
  8.13  not more than 30 days to permit such a hearing to take place. 
  8.14     Subd. 5.  [IMMUNITY.] A woman upon whom a partial-birth 
  8.15  abortion is performed may not be prosecuted under this section, 
  8.16  for a conspiracy to violate this section, or for an offense 
  8.17  under section 609.05 or 609.50 based on a violation of this 
  8.18  section. 
  8.19     Sec. 4.  [EFFECTIVE DATE.] 
  8.20     Sections 1 to 3 are effective the day following final 
  8.21  enactment.