HF 2898

as introduced - 92nd Legislature (2021 - 2022) Posted on 02/15/2022 12:12pm

A bill for an act
relating to health; prohibiting a physician from performing or inducing an abortion
when a fetal heartbeat is detected; providing a civil cause of action against a person
who performs, induces, or aids or abets the performance or inducement of an
abortion; providing for venue, limitations, immunity, and recovery of attorney fees
and costs; providing for construction of abortion statutes; proposing coding for
new law in Minnesota Statutes, chapters 145; 645.

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

Section 1. new text begin LEGISLATIVE FINDINGS.
new text end

new text begin The legislature of the state of Minnesota finds, according to contemporary medical
research, that:
new text end

new text begin (1) fetal heartbeat has become a key medical predictor that an unborn child will reach
live birth;
new text end

new text begin (2) cardiac activity begins at a biologically identifiable moment in time, normally when
the fetal heart is formed in the gestational sac;
new text end

new text begin (3) the state of Minnesota has a compelling interest from the outset of a woman's
pregnancy in protecting the health of the woman and the life of the unborn child; and
new text end

new text begin (4) to make an informed choice about whether to continue her pregnancy, the pregnant
woman has a compelling interest in knowing the likelihood of her unborn child surviving
to full-term birth based on the presence of cardiac activity.
new text end

Sec. 2.

new text begin [145.551] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Scope. new text end

new text begin The terms defined in this section apply to sections 145.551 to
145.552.
new text end

new text begin Subd. 2. new text end

new text begin Abortion. new text end

new text begin "Abortion" means the act of using or prescribing an instrument,
drug, medicine, or any other substance, device, or means with the intent to cause the death
of an unborn child of a woman known to be pregnant. Abortion does not include birth control
devices or oral contraceptives. An act is not an abortion if the act is done with the intent to
save the life or preserve the health of an unborn child, remove a dead unborn child whose
death was caused by spontaneous abortion, or remove an ectopic pregnancy.
new text end

new text begin Subd. 3. new text end

new text begin Fetal heartbeat. new text end

new text begin "Fetal heartbeat" means cardiac activity or the steady and
repetitive rhythmic contraction of the fetal heart within the gestational sac.
new text end

new text begin Subd. 4. new text end

new text begin Gestational age. new text end

new text begin "Gestational age" means the amount of time that has elapsed
from the first day of a woman's last menstrual period.
new text end

new text begin Subd. 5. new text end

new text begin Gestational sac. new text end

new text begin "Gestational sac" means the structure comprising the
extraembryonic membranes that envelop the unborn child and that is typically visible by
ultrasound after the fourth week of pregnancy.
new text end

new text begin Subd. 6. new text end

new text begin Medical emergency. new text end

new text begin "Medical emergency" means a life-threatening physical
condition aggravated by, caused by, or arising from a pregnancy that, as certified by a
physician, places the woman in danger of death or a serious risk of substantial impairment
of a major bodily function unless an abortion is performed.
new text end

new text begin Subd. 7. new text end

new text begin Physician. new text end

new text begin "Physician" means an individual licensed as a physician or
osteopathic physician under chapter 147.
new text end

new text begin Subd. 8. new text end

new text begin Pregnancy. new text end

new text begin "Pregnancy" means the human female reproductive condition that:
new text end

new text begin (1) begins with fertilization;
new text end

new text begin (2) occurs when the woman is carrying a developing human offspring; and
new text end

new text begin (3) is calculated from the first day of the woman's last menstrual period.
new text end

new text begin Subd. 9. new text end

new text begin Standard medical practice. new text end

new text begin "Standard medical practice" means the degree of
skill, care, and diligence that an obstetrician of ordinary judgment, learning, and skill would
employ in like circumstances. For purposes of determining the presence of a fetal heartbeat
under section 145.5511, standard medical practice includes employing the appropriate means
of detecting the heartbeat based on the estimated gestational age of the unborn child and
the condition of the pregnant woman and her pregnancy.
new text end

new text begin Subd. 10. new text end

new text begin Unborn child. new text end

new text begin "Unborn child" means a human fetus or embryo in any stage
of gestation from fertilization until birth.
new text end

Sec. 3.

new text begin [145.5511] DETERMINATION OF PRESENCE OF FETAL HEARTBEAT
REQUIRED; RECORD.
new text end

new text begin Subdivision 1. new text end

new text begin Determining whether unborn child has detectable fetal
heartbeat. new text end

new text begin Except as provided in section 145.5513, a physician must not knowingly perform
or induce an abortion on a pregnant woman unless the physician has determined, in
accordance with this section, whether the woman's unborn child has a detectable fetal
heartbeat.
new text end

new text begin Subd. 2. new text end

new text begin Test for detecting fetal heartbeat. new text end

new text begin In making a determination under subdivision
1, a physician must use a test that is:
new text end

new text begin (1) consistent with the physician's good faith and reasonable understanding of standard
medical practice; and
new text end

new text begin (2) appropriate for the estimated gestational age of the unborn child and the condition
of the pregnant woman and her pregnancy.
new text end

new text begin Subd. 3. new text end

new text begin Information in medical record. new text end

new text begin A physician making a determination under
subdivision 1 must record in the pregnant woman's medical record:
new text end

new text begin (1) the estimated gestational age of the unborn child;
new text end

new text begin (2) the method used to estimate the unborn child's gestational age; and
new text end

new text begin (3) the test used for detecting a fetal heartbeat and the date, time, and results of the test.
new text end

Sec. 4.

new text begin [145.5512] PROHIBITED ABORTION OF UNBORN CHILD WITH
DETECTABLE FETAL HEARTBEAT; EFFECT.
new text end

new text begin Subdivision 1. new text end

new text begin Prohibition. new text end

new text begin (a) Except as provided in section 145.5513, a physician
must not knowingly perform or induce an abortion on a pregnant woman if the physician
detected a fetal heartbeat for the unborn child according to section 145.5511 or failed to
perform a test to detect a fetal heartbeat.
new text end

new text begin (b) A physician does not violate this section if the physician performed a test for a fetal
heartbeat for the unborn child according to section 145.5511 and did not detect a fetal
heartbeat.
new text end

new text begin Subd. 2. new text end

new text begin Laws not affected. new text end

new text begin This section does not affect:
new text end

new text begin (1) any law that restricts or regulates an abortion by a particular method or during a
particular stage of pregnancy; or
new text end

new text begin (2) any law that otherwise regulates or prohibits abortion.
new text end

Sec. 5.

new text begin [145.5513] EXCEPTION FOR MEDICAL EMERGENCY; RECORDS.
new text end

new text begin Subdivision 1. new text end

new text begin Exception. new text end

new text begin Sections 145.5511 and 145.5512 do not apply if a physician
believes a medical emergency exists that prevents compliance with section 145.5511 or
145.5512.
new text end

new text begin Subd. 2. new text end

new text begin Information in medical record and practice record. new text end

new text begin (a) A physician who
performs or induces an abortion under the circumstances described in subdivision 1 shall
make written notations in the pregnant woman's medical record of:
new text end

new text begin (1) the physician's belief that a medical emergency necessitated the abortion; and
new text end

new text begin (2) the medical condition of the pregnant woman that prevented compliance with section
145.5511 or 145.5512.
new text end

new text begin (b) A physician performing or inducing an abortion under this section shall maintain in
the physician's practice records a copy of the notations made according to paragraph (a).
new text end

Sec. 6.

new text begin [145.5514] CONSTRUCTION.
new text end

new text begin Subdivision 1. new text end

new text begin Right to abortion not created or recognized. new text end

new text begin Sections 145.551 to
145.552 do not create or recognize a right to abortion before a fetal heartbeat is detected.
new text end

new text begin Subd. 2. new text end

new text begin Construction. new text end

new text begin Sections 145.551 to 145.552 must not be construed to:
new text end

new text begin (1) authorize the initiation of a cause of action against or the prosecution of a woman
on whom an abortion is performed or induced or attempted to be performed or induced in
violation of sections 145.551 to 145.552;
new text end

new text begin (2) wholly or partly repeal, either expressly or by implication, any other statute that
regulates or prohibits abortion; or
new text end

new text begin (3) restrict a political subdivision from regulating or prohibiting abortion in a manner
that is at least as stringent as state law.
new text end

Sec. 7.

new text begin [145.5515] LIMITATIONS ON PUBLIC ENFORCEMENT.
new text end

new text begin Subdivision 1. new text end

new text begin Enforcement. new text end

new text begin Notwithstanding any other law, the requirements of sections
145.551 to 145.552 shall be enforced exclusively through the private civil actions described
in section 145.5516. No enforcement of sections 145.551 to 145.552, and no enforcement
of chapter 609 in response to violations of sections 145.551 to 145.552, may be taken or
threatened by the state, a political subdivision, a district or county attorney, or an executive
or administrative officer or employee of the state or of a political subdivision against any
person, except as provided in section 145.5516.
new text end

new text begin Subd. 2. new text end

new text begin Construction. new text end

new text begin Subdivision 1 must not be construed to:
new text end

new text begin (1) legalize the conduct prohibited by sections 145.551 to 145.552, this chapter, or
chapter 609;
new text end

new text begin (2) limit in any way or affect the availability of a remedy established under section
145.5516; or
new text end

new text begin (3) limit the enforceability of any other laws that regulate or prohibit abortion.
new text end

Sec. 8.

new text begin [145.5516] CIVIL LIABILITY FOR VIOLATION OR AIDING OR
ABETTING VIOLATION.
new text end

new text begin Subdivision 1. new text end

new text begin Civil action. new text end

new text begin Any person, other than an officer or employee of a state or
local governmental entity in this state, may bring a civil action against any person who:
new text end

new text begin (1) performs or induces an abortion in violation of sections 145.551 to 145.552;
new text end

new text begin (2) knowingly engages in conduct that aids or abets the performance or inducement of
an abortion, including paying for or reimbursing the costs of an abortion through insurance
or otherwise, if the abortion is performed or induced in violation of sections 145.551 to
145.552, regardless of whether the person knew or should have known that the abortion
would be performed or induced in violation of sections 145.551 to 145.552; or
new text end

new text begin (3) intends to engage in the conduct described in clause (1) or (2).
new text end

new text begin Subd. 2. new text end

new text begin Remedies. new text end

new text begin (a) If a claimant prevails in an action brought under this section,
the court shall award:
new text end

new text begin (1) injunctive relief sufficient to prevent the defendant from violating sections 145.551
to 145.552 or engaging in acts that aid or abet violations of sections 145.551 to 145.552;
new text end

new text begin (2) statutory damages in an amount of not less than $10,000 for each abortion that the
defendant performed or induced in violation of sections 145.551 to 145.552 and for each
abortion performed or induced in violation of sections 145.551 to 145.552 that the defendant
aided or abetted; and
new text end

new text begin (3) costs and attorney fees.
new text end

new text begin (b) Notwithstanding paragraph (a), a court must not award relief under this section in
response to a violation of subdivision 1, clause (1) or (2), if the defendant demonstrates that
the defendant previously paid the full amount of statutory damages under paragraph (a),
clause (2), in a previous action for that particular abortion performed or induced in violation
of sections 145.551 to 145.552 or for the particular conduct that aided or abetted an abortion
performed or induced in violation of sections 145.551 to 145.552.
new text end

new text begin Subd. 3. new text end

new text begin Statute of limitations. new text end

new text begin A person may bring an action under this section not
later than the fourth anniversary of the date the cause of action accrues.
new text end

new text begin Subd. 4. new text end

new text begin Not a defense. new text end

new text begin The following are not a defense to an action brought under this
section:
new text end

new text begin (1) ignorance or mistake of law;
new text end

new text begin (2) a defendant's belief that the requirements of sections 145.551 to 145.552 are
unconstitutional or were unconstitutional;
new text end

new text begin (3) a defendant's reliance on any court decision that has been overruled on appeal or by
a subsequent court, even if that court decision had not been overruled when the defendant
engaged in conduct that violates sections 145.551 to 145.552;
new text end

new text begin (4) a defendant's reliance on any state or federal court decision that is not binding on
the court in which the action has been brought;
new text end

new text begin (5) nonmutual issue preclusion or nonmutual claim preclusion;
new text end

new text begin (6) the consent of the unborn child's mother to the abortion; or
new text end

new text begin (7) any claim that the enforcement of sections 145.551 to 145.552 or the imposition of
civil liability against the defendant will violate the constitutional rights of third parties,
except as provided in section 145.5517.
new text end

new text begin Subd. 5. new text end

new text begin Affirmative defense. new text end

new text begin (a) It is an affirmative defense if:
new text end

new text begin (1) a person sued under subdivision 1, clause (2), reasonably believed, after conducting
a reasonable investigation, that the physician performing or inducing the abortion had
complied or would comply with sections 145.551 to 145.552; or
new text end

new text begin (2) a person sued under subdivision 1, clause (3), reasonably believed, after conducting
a reasonable investigation, that the physician performing or inducing the abortion will
comply with sections 145.551 to 145.552.
new text end

new text begin (b) The defendant has the burden of proving an affirmative defense under this subdivision
by a preponderance of the evidence.
new text end

new text begin Subd. 6. new text end

new text begin Liability not imposed. new text end

new text begin This section may not be construed to impose liability
on any speech or conduct protected by the first amendment to the United States Constitution,
as made applicable to the states through the United States Supreme Court's interpretation
of the fourteenth amendment to the United States Constitution, or by the rights conferred
by the Minnesota Constitution.
new text end

new text begin Subd. 7. new text end

new text begin Intervention. new text end

new text begin Notwithstanding any other law, this state, a state official, or a
district or county attorney may not intervene in an action brought under this section. This
subdivision does not prohibit a person described in this subdivision from filing an amicus
curiae brief in the action.
new text end

new text begin Subd. 8. new text end

new text begin Defendant costs or attorney fees. new text end

new text begin Notwithstanding any other law, a court may
not award costs or attorney fees under the Minnesota Rules of Civil Procedure or any other
rule adopted by the supreme court to a defendant in an action brought under this section.
new text end

new text begin Subd. 9. new text end

new text begin Civil action not permitted. new text end

new text begin Notwithstanding any other law, a civil action under
this section may not be brought by a person who impregnated the abortion patient through
an act of rape, sexual assault, incest, or any other act prohibited by chapter 609.
new text end

Sec. 9.

new text begin [145.5517] CIVIL LIABILITY; UNDUE BURDEN DEFENSE LIMITATIONS.
new text end

new text begin (a) A defendant against whom an action is brought under section 145.5516 does not
have standing to assert the rights of women seeking an abortion as a defense to liability
under that section unless the United States Supreme Court holds that the courts of this state
must confer standing on that defendant to assert the third-party rights of women seeking an
abortion in state court as a matter of federal constitutional law or the defendant has standing
to assert the rights of women seeking an abortion under the tests for third-party standing
established by the United States Supreme Court.
new text end

new text begin (b) A defendant in an action brought under section 145.5516 may assert an affirmative
defense to liability under that section if:
new text end

new text begin (1) the defendant has standing to assert the third-party rights of a woman or group of
women seeking an abortion in accordance with paragraph (a); and
new text end

new text begin (2) the defendant demonstrates that the relief sought by the claimant will impose an
undue burden on that woman or that group of women seeking an abortion.
new text end

new text begin (c) A court may not find an undue burden under paragraph (b) unless the defendant
introduces evidence proving that an award of relief will prevent a woman or group of women
from obtaining an abortion or an award of relief will place a substantial obstacle in the path
of a woman or group of women who are seeking an abortion.
new text end

new text begin (d) A defendant may not establish an undue burden under this section by merely
demonstrating that an award of relief will prevent women from obtaining support or
assistance, financial or otherwise, from others in their effort to obtain an abortion or arguing
or attempting to demonstrate that an award of relief against other defendants or other potential
defendants will impose an undue burden on women seeking an abortion.
new text end

new text begin (e) The affirmative defense in paragraph (b) is not available if the United States Supreme
Court overrules Roe v. Wade, 410 U.S. 113 (1973) or Planned Parenthood v. Casey, 505
U.S. 833 (1992), regardless of whether the conduct on which the cause of action is based
under section 145.5516 occurred before the United States Supreme Court overruled either
of those decisions.
new text end

new text begin (f) Nothing in this section shall in any way limit or preclude a defendant from asserting
the defendant's personal constitutional rights as a defense to liability under section 145.5516,
and a court may not award relief under section 145.5516 if the conduct for which the
defendant has been sued was an exercise of state or federal constitutional rights that
personally belong to the defendant.
new text end

Sec. 10.

new text begin [145.5518] CIVIL LIABILITY; VENUE.
new text end

new text begin (a) A civil action brought under section 145.5516 shall be brought in:
new text end

new text begin (1) the county in which all or a substantial part of the events or omissions giving rise to
the claim occurred;
new text end

new text begin (2) the county of residence of any one of the natural person defendants at the time the
cause of action accrued;
new text end

new text begin (3) the county of the principal office in this state of any one of the defendants that is not
a natural person; or
new text end

new text begin (4) the county of residence of the claimant if the claimant is a natural person residing
in this state.
new text end

new text begin (b) If a civil action is brought under section 145.5516 in any one of the venues described
in paragraph (a), the action may not be transferred to a different venue without the written
consent of all parties.
new text end

Sec. 11.

new text begin [145.5519] SOVEREIGN, GOVERNMENTAL, AND OFFICIAL IMMUNITY
PRESERVED.
new text end

new text begin (a) This section prevails over any conflicting law.
new text end

new text begin (b) This state has sovereign immunity, a political subdivision has governmental immunity,
and each officer and employee of this state or a political subdivision has official immunity
in any action, claim, or counterclaim or any type of legal or equitable action that challenges
the validity of any provision or application of sections 145.551 to 145.552 on constitutional
grounds or otherwise.
new text end

new text begin (c) A provision of state law may not be construed to waive or abrogate an immunity
described in paragraph (b) unless it expressly waives immunity under this section.
new text end

Sec. 12.

new text begin [145.552] SEVERABILITY.
new text end

new text begin (a) It is the intent of the legislature of the state of Minnesota that every provision, section,
subdivision, paragraph, clause, sentence, phrase, or word in sections 145.551 to 145.552,
and every application of the provisions of sections 145.551 to 145.552, are severable from
each other.
new text end

new text begin (b) If any application of any provision of sections 145.551 to 145.552 to any person,
group of persons, or circumstances is found by a court to be invalid or unconstitutional, the
remaining application of that provision to all other persons and circumstances shall be
severed and shall not be affected. All constitutionally valid applications of this chapter shall
be severed from any application that a court finds to be invalid, leaving the valid application
in force, because it is the legislature's intent and priority that the valid applications be allowed
to stand alone. If a reviewing court finds a provision of sections 145.551 to 145.552 imposes
an undue burden in a large or substantial fraction of relevant cases, the applications that do
not present an undue burden shall be severed from the remaining applications, shall remain
in force, and shall be treated as if the legislature had enacted a statute limited to the persons,
group of persons, or circumstances for which the statute's application does not present an
undue burden. If any court declares or finds a provision of this chapter facially
unconstitutional, when discrete applications of that provision can be enforced against a
person, group of persons, or circumstances without violating the United States Constitution
and Minnesota Constitution, those applications shall be severed from all remaining
applications of the provision, and the provision shall be interpreted as if the legislature had
enacted a provision limited to the persons, group of persons, or circumstances for which
the provision's application will not violate the United States Constitution and Minnesota
Constitution.
new text end

new text begin (c) The legislature further declares that it would have enacted each provision, section,
subdivision, paragraph, clause, sentence, phrase, or word, and all constitutional applications
of sections 145.551 to 145.552, whether any provision, section, subdivision, paragraph,
clause, sentence, phrase, word, or application of sections 145.551 to 145.552 were declared
unconstitutional or to represent an undue burden.
new text end

new text begin (d) If any provision of sections 145.551 to 145.552 is found by any court to be
unconstitutionally vague, then the applications of that provision that do not present
constitutional vagueness problems shall be severed and remain in force.
new text end

new text begin (e) No court may decline to enforce the severability requirements of paragraphs (a) to
(d) on the ground that severance would rewrite the statute or involve the court in legislative
or lawmaking activity. A court that declines to enforce or that enjoins a state official from
enforcing a statutory provision does not rewrite a statute, as the statute continues to contain
the same words as before the court's decision. A judicial injunction or declaration of
unconstitutionality:
new text end

new text begin (1) is nothing more than an edict prohibiting enforcement that may subsequently be
vacated by a later court if that court has a different understanding of the requirements of
the Minnesota Constitution or United States Constitution;
new text end

new text begin (2) is not a formal amendment of the language in a statute; and
new text end

new text begin (3) no more rewrites a statute than a decision by the executive not to enforce a duly
enacted statute in a limited and defined set of circumstances.
new text end

Sec. 13.

new text begin [145.555] AWARD OF ATTORNEY FEES IN ACTIONS CHALLENGING
ABORTION LAWS.
new text end

new text begin (a) Notwithstanding any other law, any person, including an entity, attorney, or law firm,
who seeks declaratory or injunctive relief in a state or federal court to prevent the state, a
political subdivision, any governmental entity or public official in this state, or any person
in this state from enforcing any statute, ordinance, rule, regulation, or any other type of law
that regulates or restricts abortion or that limits taxpayer funding for individuals or entities
that perform or promote abortions, or that represents any litigant seeking such relief in a
state or federal court is jointly and severally liable to pay the costs and attorney fees of the
prevailing party.
new text end

new text begin (b) For purposes of this section, a party is considered a prevailing party if a state or
federal court:
new text end

new text begin (1) dismisses any claim or cause of action brought against the party that seeks declaratory
or injunctive relief described in paragraph (a), regardless of the reason for the dismissal; or
new text end

new text begin (2) enters judgment in the party's favor on any such claim or cause of action.
new text end

new text begin (c) Regardless of whether a prevailing party sought to recover costs or attorney fees in
the underlying action, a prevailing party under this section may bring a civil action to recover
costs and attorney fees against a person, including an entity, attorney, or law firm, that
sought declaratory or injunctive relief described in paragraph (a) not later than the third
anniversary of the date on which, as applicable:
new text end

new text begin (1) the dismissal or judgment described in paragraph (b) becomes final on the conclusion
of appellate review; or
new text end

new text begin (2) the time for seeking appellate review expires.
new text end

new text begin (d) It is not a defense to an action brought under paragraph (c) that a prevailing party
under this section failed to seek recovery of costs or attorney fees in the underlying action,
the court in the underlying action declined to recognize or enforce the requirements of this
section, or the court in the underlying action held that any provisions of this section are
invalid, unconstitutional, or preempted by federal law, notwithstanding the doctrines of
issue or claim preclusion.
new text end

Sec. 14.

new text begin [645.205] CONSTRUCTION OF ABORTION STATUTES.
new text end

new text begin (a) A statute that regulates or prohibits abortion shall not be construed to repeal any
other statute that regulates or prohibits abortion, either wholly or partly, unless the repealing
statute explicitly repeals the other statute.
new text end

new text begin (b) A statute shall not be construed to restrict a political subdivision from regulating or
prohibiting abortion in a manner that is at least as stringent as the laws of this state unless
that statute explicitly states that political subdivisions are prohibited from regulating or
prohibiting abortion in the manner described by the statute.
new text end

new text begin (c) Every statute that regulates or prohibits abortion is severable in each of its applications
to every person and circumstance. If any statute that regulates or prohibits abortion is found
by any court to be unconstitutional, either on its face or as applied, then all applications of
that statute that do not violate the United States Constitution and Minnesota Constitution
shall be severed from the unconstitutional applications and shall remain enforceable,
notwithstanding any other law, and the statute shall be interpreted as if containing language
limiting the statute's application to the persons, group of persons, or circumstances for which
the statute's application will not violate the United States Constitution and Minnesota
Constitution.
new text end