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SF 894

as introduced - 87th Legislature (2011 - 2012) Posted on 02/23/2012 09:17am

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

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A bill for an act
relating to health; prohibiting abortions at or after 20 weeks gestational age
unless certain exceptions apply; providing civil and criminal penalties;amending
Minnesota Statutes 2010, 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. SHORT TITLE.

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

Sec. 2.

[8.40] LITIGATION DEFENSE FUND.

(a) There is created a special revenue fund known as the Pain-Capable Unborn Child
Protection Act litigation fund 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 145.4148.

(b) The fund shall be maintained by the state Office of Management and Budget.

(c) The litigation fund shall consist of:

(1) appropriations made to the account by the legislature; and

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

(d) Any expenses advanced by the attorney general in any of the actions under
paragraph (a) shall be credited to the attorney general litigation fund.

(e) The litigation fund shall retain the interest income derived from the money
credited to the fund.

Sec. 3.

Minnesota Statutes 2010, 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; and

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

(12) whether a determination of probable postfertilization age was made and the
probable postfertilization age determined:

(i) the method used to make such a determination; or

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

(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 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.

Sec. 4.

[145.4141] DEFINITIONS.

Subdivision 1.

Scope.

For purposes of sections 145.4141 to 145.4148, the following
terms have the meanings given them.

Subd. 2.

Abortion.

"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.

Subd. 3.

Attempt to perform or induce an abortion.

"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 145.4148.

Subd. 4.

Fertilization.

"Fertilization" means the fusion of a human spermatozoon
with a human ovum.

Subd. 5.

Medical emergency.

"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 would result in her death or in
substantial and irreversible physical impairment of a major bodily function.

Subd. 6.

Physician.

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

Subd. 7.

Postfertilization age.

"Postfertilization age" means the age of the unborn
child as calculated from the fertilization of the human ovum.

Subd. 8.

Probable postfertilization age of the unborn child.

"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.

Subd. 9.

Reasonable medical judgment.

"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.

Subd. 10.

Unborn child or fetus.

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

Subd. 11.

Woman.

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

Sec. 5.

[145.4142] LEGISLATIVE FINDINGS.

(a) The legislature makes the following findings.

(b) Pain receptors (nociceptors) are present throughout an unborn child's entire body
by 16 weeks after fertilization and nerves link these receptors to the brain's thalamus
and subcortical plate by 20 weeks.

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

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

(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.

(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.

(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.

(h) Substantial evidence indicates that a child born missing the bulk of the cerebral
cortex, those with hydranencephaly, nevertheless experience pain.

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

(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.

(k) There is substantial medical evidence that an unborn child is capable of
experiencing pain by 20 weeks after fertilization.

(l) 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.

Sec. 6.

[145.4143] DETERMINATION OF GESTATIONAL AGE.

Subdivision 1.

Determination of postfertilization age.

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 inquiries of the woman and perform or cause to be performed
medical examinations and tests as 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.

Subd. 2.

Unprofessional conduct.

Failure by any physician to conform to any
requirement of this section constitutes unprofessional conduct.

Sec. 7.

[145.4144] ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS
GESTATIONAL AGE PROHIBITED; CAPABLE OF FEELING PAIN.

Subdivision 1.

Abortion prohibition; exemption.

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 would result in her death or in substantial and irreversible physical
impairment of a major bodily function.

Subd. 2.

When abortion not prohibited.

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 would result in her death
or in substantial and irreversible physical impairment of a major bodily function.

Sec. 8.

[145.4145] ENFORCEMENT.

Subdivision 1.

Criminal penalties.

A person who intentionally or recklessly
performs or induces or attempts to perform or induce an abortion in violation of sections
145.4141 to 145.4148 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.

Subd. 2.

Civil remedies.

(a) A woman upon whom an abortion has been performed
or induced in violation of sections 145.4141 to 145.4148, 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 145.4148 for actual and punitive damages. A woman upon whom an abortion has been
attempted in violation of sections 145.4141 to 145.4148 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 145.4148 for actual and punitive damages.

(b) A cause of action for injunctive relief against a person who has intentionally
violated sections 145.4141 to 145.4148 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 145.4148; 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 145.4148; by a
county attorney with appropriate jurisdiction; or by the attorney general. The injunction
shall prevent the abortion provider from performing or inducing further abortions in this
state in violation of sections 145.4141 to 145.4148.

(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.

(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.

(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).

Sec. 9.

[145.4146] PROTECTION OF PRIVACY IN COURT PROCEEDINGS.

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.

Sec. 10.

[145.4147] SEVERABILITY.

If any one or more provisions, sections, subsections, sentences, clauses, phrases,
or words of sections 145.4141 to 145.4148, 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 145.4148 shall remain effective notwithstanding
such unconstitutionality. The legislature hereby declares that it would have passed
sections 145.4141 to 145.4148, 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 145.4148, or the
application of sections 145.4141 to 145.4148, would be declared unconstitutional.

Sec. 11.

[145.4148] SUPREME COURT JURISDICTION.

The Minnesota Supreme Court has original jurisdiction over an action challenging
the constitutionality of sections 145.4141 to 145.4147 and shall expedite the resolution
of the action.

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