SF 2940

as introduced - 88th Legislature (2013 - 2014) Posted on 04/02/2014 09:01am

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 2012, 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 begin SHORT 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 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:
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new text begin (1) appropriations made to the account by the legislature; and
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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 2012, 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; deleted text begin and
deleted text end

(11) the medical specialty of the physician performing the abortion deleted text begin . deleted text end new text begin ;
new text end

new text begin (12) whether a determination of probable postfertilization age was made and the
probable postfertilization age determined:
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new text begin (i) the method used to make such a determination; or
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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
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new text begin (13) 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 the woman's medical condition so as to necessitate the abortion of the
woman's pregnancy to avert the woman's 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 the woman intends to result in the woman's 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 will, in reasonable medical
judgment, with a 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 the
female 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.
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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 of
stress hormones 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.
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 the woman's pregnancy to avert the woman's
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 the woman intends to result in the woman's 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
occur with 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 the
woman intends to result in the woman's 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 the woman does not give consent to
such disclosure. The court, upon motion or sua sponte, 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 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, subdivisions, paragraphs, clauses, items,
phrases, sentences, 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, subdivision,
paragraph, clause, item, phrase, sentence, or word thereof, irrespective of the fact that
any one or more provisions, sections, subdivisions, paragraphs, clauses, items, phrases,
sentences, 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