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Minnesota Legislature

Office of the Revisor of Statutes

HF 1312

as introduced - 91st Legislature (2019 - 2020) Posted on 04/01/2019 05:40pm

KEY: stricken = removed, old language.
underscored = added, new language.

Bill Text Versions

Engrossments
Introduction Posted on 02/15/2019

Current Version - as introduced

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A bill for an act
relating to health; prohibiting abortions at or after 20 weeks postfertilization age
unless certain exceptions apply; providing civil and criminal penalties; appropriating
money; amending Minnesota Statutes 2018, section 145.4131, subdivision 1;
proposing coding for new law in Minnesota Statutes, chapters 8; 145.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1. new text beginSHORT TITLE.
new text end

new text begin This act may be cited as the "Pain-Capable Unborn Child Protection Act."
new text end

Sec. 2.

new text begin [8.40] LITIGATION DEFENSE FUND.
new text end

new text begin (a) There is created in the special revenue fund an account entitled the Pain-Capable
Unborn Child Protection Act litigation account for the purpose of providing funds to pay
for any costs and expenses incurred by the state attorney general in relation to actions
surrounding defense of sections 145.4141 to 145.4147.
new text end

new text begin (b) The account shall be maintained by the commissioner of management and budget.
new text end

new text begin (c) The litigation account shall consist of:
new text end

new text begin (1) appropriations made to the account by the legislature; and
new text end

new text begin (2) any donations, gifts, or grants made to the account by private citizens or entities.
new text end

new text begin (d) The litigation account shall retain the interest income derived from the money credited
to the account.
new text end

new text begin (e) Any funds in the litigation account are appropriated to the attorney general for the
purposes described in paragraph (a).
new text end

Sec. 3.

Minnesota Statutes 2018, section 145.4131, subdivision 1, is amended to read:


Subdivision 1.

Forms.

(a) Within 90 days of July 1, 1998, the commissioner shall prepare
a reporting form for use by physicians or facilities performing abortions. A copy of this
section shall be attached to the form. A physician or facility performing an abortion shall
obtain a form from the commissioner.

(b) The form shall require the following information:

(1) the number of abortions performed by the physician in the previous calendar year,
reported by month;

(2) the method used for each abortion;

(3) the approximate gestational age expressed in one of the following increments:

(i) less than nine weeks;

(ii) nine to ten weeks;

(iii) 11 to 12 weeks;

(iv) 13 to 15 weeks;

(v) 16 to 20 weeks;

(vi) 21 to 24 weeks;

(vii) 25 to 30 weeks;

(viii) 31 to 36 weeks; or

(ix) 37 weeks to term;

(4) the age of the woman at the time the abortion was performed;

(5) the specific reason for the abortion, including, but not limited to, the following:

(i) the pregnancy was a result of rape;

(ii) the pregnancy was a result of incest;

(iii) economic reasons;

(iv) the woman does not want children at this time;

(v) the woman's emotional health is at stake;

(vi) the woman's physical health is at stake;

(vii) the woman will suffer substantial and irreversible impairment of a major bodily
function if the pregnancy continues;

(viii) the pregnancy resulted in fetal anomalies; or

(ix) unknown or the woman refused to answer;

(6) the number of prior induced abortions;

(7) the number of prior spontaneous abortions;

(8) whether the abortion was paid for by:

(i) private coverage;

(ii) public assistance health coverage; or

(iii) self-pay;

(9) whether coverage was under:

(i) a fee-for-service plan;

(ii) a capitated private plan; or

(iii) other;

(10) complications, if any, for each abortion and for the aftermath of each abortion.
Space for a description of any complications shall be available on the form;

(11) the medical specialty of the physician performing the abortion;

(12) if the abortion was performed via telemedicine, the facility code for the patient and
the facility code for the physician; deleted text beginand
deleted text end

(13) whether the abortion resulted in a born alive infant, as defined in section 145.423,
subdivision 4
, and:

(i) any medical actions taken to preserve the life of the born alive infant;

(ii) whether the born alive infant survived; and

(iii) the status of the born alive infant, should the infant survive, if knowndeleted text begin.deleted text endnew text begin;
new text end

new text begin (14) whether a determination of probable postfertilization age was made and the probable
postfertilization age determined, including:
new text end

new text begin (i) the method used to make such a determination; or
new text end

new text begin (ii) if a determination was not made prior to performing an abortion, the basis of the
determination that a medical emergency existed; and
new text end

new text begin (15) for abortions performed after a determination of postfertilization age of 20 or more
weeks, the basis of the determination that the pregnant woman had a condition that 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.
new text end

Sec. 4.

new text begin [145.4141] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Scope. new text end

new text begin For purposes of sections 145.4141 to 145.4147, the following
terms have the meanings given them.
new text end

new text begin Subd. 2. new text end

new text begin Abortion. new text end

new text begin "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.
new text end

new text begin Subd. 3. new text end

new text begin Attempt to perform or induce an abortion. new text end

new text begin "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 sections 145.4141 to 145.4147.
new text end

new text begin Subd. 4. new text end

new text begin Fertilization. new text end

new text begin "Fertilization" means the fusion of a human spermatozoon with
a human ovum.
new text end

new text begin Subd. 5. new text end

new text begin Medical emergency. new text end

new text begin "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.
new text end

new text begin Subd. 6. new text end

new text begin Physician. new text end

new text begin "Physician" means any person licensed to practice medicine and
surgery or osteopathic medicine and surgery in this state.
new text end

new text begin Subd. 7. new text end

new text begin Postfertilization age. new text end

new text begin "Postfertilization age" means the age of the unborn child
as calculated from the fusion of a human spermatozoon with a human ovum.
new text end

new text begin Subd. 8. new text end

new text begin Probable postfertilization age of the unborn child. new text end

new text begin "Probable postfertilization
age of the unborn child" means what, in reasonable medical judgment, will with reasonable
probability be the postfertilization age of the unborn child at the time the abortion is planned
to be performed or induced.
new text end

new text begin Subd. 9. new text end

new text begin Reasonable medical judgment. new text end

new text begin "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.
new text end

new text begin Subd. 10. new text end

new text begin Unborn child or fetus. new text end

new text begin "Unborn child" or "fetus" means an individual organism
of the species homo sapiens from fertilization until live birth.
new text end

new text begin Subd. 11. new text end

new text begin Woman. new text end

new text begin "Woman" means a female human being whether or not she has
reached the age of majority.
new text end

Sec. 5.

new text begin [145.4142] LEGISLATIVE FINDINGS.
new text end

new text begin (a) The legislature makes the following findings.
new text end

new text begin (b) Pain receptors (nociceptors) are present throughout an unborn child's entire body
and nerves link these receptors to the brain's thalamus and subcortical plate by 20 weeks.
new text end

new text begin (c) By eight weeks after fertilization, an unborn child reacts to touch. After 20 weeks
an unborn child reacts to stimuli that would be recognized as painful if applied to an adult
human, for example by recoiling.
new text end

new text begin (d) In the unborn child, application of such painful stimuli is associated with significant
increases in stress hormones known as the stress response.
new text end

new text begin (e) 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.
new text end

new text begin (f) For the purposes of surgery on an unborn child, fetal anesthesia is routinely
administered and is associated with a decrease in stress hormones compared to the level
when painful stimuli is applied without anesthesia.
new text end

new text begin (g) The position, asserted by some medical experts, that an unborn child is incapable of
experiencing pain until a point later in pregnancy than 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.
new text end

new text begin (h) Substantial evidence indicates that children born missing the bulk of the cerebral
cortex, those with hydranencephaly, nevertheless experience pain.
new text end

new text begin (i) In adults, stimulation or ablation of the cerebral cortex does not alter pain perception,
while stimulation or ablation of the thalamus does.
new text end

new text begin (j) 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.
new text end

new text begin (k) 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.
new text end

new text begin (l) Consequently, there is substantial medical evidence that an unborn child is capable
of experiencing pain by 20 weeks after fertilization.
new text end

new text begin (m) 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.
new text end

Sec. 6.

new text begin [145.4143] DETERMINATION OF POSTFERTILIZATION AGE.
new text end

new text begin Subdivision 1. new text end

new text begin Determination of postfertilization age. new text end

new text begin 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 postfertilization age of the unborn child or relied upon such a determination
made by another physician. In making such a determination, the physician shall make those
inquiries of the woman and perform or cause to be performed those medical examinations
and tests that 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 postfertilization age.
new text end

new text begin Subd. 2. new text end

new text begin Unprofessional conduct. new text end

new text begin Failure by any physician to conform to any
requirement of this section constitutes unprofessional conduct under section 147.091,
subdivision 1, paragraph (k).
new text end

Sec. 7.

new text begin [145.4144] ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS
POSTFERTILIZATION AGE PROHIBITED; CAPABLE OF FEELING PAIN.
new text end

new text begin Subdivision 1. new text end

new text begin Abortion prohibition; exemption. new text end

new text begin 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
postfertilization age of the woman's unborn child is 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 condition 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.
new text end

new text begin Subd. 2. new text end

new text begin When abortion not prohibited. new text end

new text begin When an abortion upon a woman whose
unborn child has been determined to have a probable postfertilization age of 20 or more
weeks is not prohibited by 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.
new text end

Sec. 8.

new text begin [145.4145] ENFORCEMENT.
new text end

new text begin Subdivision 1. new text end

new text begin Criminal penalties. new text end

new text begin A person who intentionally or recklessly performs
or induces or attempts to perform or induce an abortion in violation of sections 145.4141
to 145.4147 shall be guilty of a felony. No penalty may be assessed against the woman upon
whom the abortion is performed or induced or attempted to be performed or induced.
new text end

new text begin Subd. 2. new text end

new text begin Civil remedies. new text end

new text begin (a) A woman upon whom an abortion has been performed or
induced in violation of sections 145.4141 to 145.4147, 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 sections 145.4141 to 145.4147
for damages. A woman upon whom an abortion has been attempted in violation of sections
145.4141 to 145.4147 may maintain an action against the person who attempted to perform
or induce the abortion in an intentional or reckless violation of sections 145.4141 to 145.4147
for damages.
new text end

new text begin (b) A cause of action for injunctive relief against a person who has intentionally violated
sections 145.4141 to 145.4147 may be maintained by the woman upon whom an abortion
was performed or induced or attempted to be performed or induced in violation of sections
145.4141 to 145.4147; by a person who is the father of the unborn child subject to an
abortion, 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 sections 145.4141 to 145.4147; 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 this state in violation of sections 145.4141 to 145.4147.
new text end

new text begin (c) If judgment is rendered in favor of the plaintiff in an action described in this section,
the court shall also render judgment for reasonable attorney fees in favor of the plaintiff
against the defendant.
new text end

new text begin (d) 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 reasonable
attorney fees in favor of the defendant against the plaintiff.
new text end

new text begin (e) No damages or attorney fees may be assessed against the woman upon whom an
abortion was performed or induced or attempted to be performed or induced except according
to paragraph (d).
new text end

Sec. 9.

new text begin [145.4146] PROTECTION OF PRIVACY IN COURT PROCEEDINGS.
new text end

new text begin In every civil or criminal proceeding or action brought under the Pain-Capable Unborn
Child Protection Act, the court shall rule on whether the anonymity of a 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 section 145.4145, subdivision 2,
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.
new text end

Sec. 10.

new text begin [145.4147] SEVERABILITY.
new text end

new text begin If any one or more provisions, sections, subsections, sentences, clauses, phrases, or
words of sections 145.4141 to 145.4146, 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 sections 145.4141 to 145.4146 shall remain effective notwithstanding
such unconstitutionality. The legislature hereby declares that it would have passed sections
145.4141 to 145.4146, 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 of sections 145.4141 to 145.4146, or the application
of sections 145.4141 to 145.4146, would be declared unconstitutional.
new text end