1 | A bill to be entitled |
2 | An act relating to abortion; providing a short title; |
3 | providing legislative findings; amending s. 390.011, F.S.; |
4 | providing definitions; amending s. 390.0111, F.S.; |
5 | requiring a physician performing or inducing an abortion |
6 | to first make a determination of the probable |
7 | postfertilization age of the unborn child; providing an |
8 | exception; providing for disciplinary action against |
9 | noncompliant physicians; prohibiting an abortion if the |
10 | probable postfertilization age of the woman's unborn child |
11 | is 20 or more weeks; providing exceptions; providing |
12 | recordkeeping and reporting requirements for physicians; |
13 | providing for rulemaking; requiring an annual report by |
14 | the Department of Health; providing financial penalties |
15 | for late reports; providing for civil actions to require |
16 | reporting; providing for disciplinary action against |
17 | noncompliant physicians; providing criminal penalties for |
18 | intentional or reckless falsification of a report; |
19 | providing criminal penalties for any person who |
20 | intentionally or recklessly performs or attempts to |
21 | perform an abortion in violation of specified provisions; |
22 | providing that a penalty may not be assessed against a |
23 | woman involved in such an abortion or attempt; providing |
24 | for civil actions by certain persons for intentional or |
25 | reckless violations; providing for actions for injunctive |
26 | relief by certain persons for intentional violations; |
27 | providing for award of attorney's fees in certain |
28 | circumstances; requiring that in every civil or criminal |
29 | proceeding or action brought under the court rule on |
30 | whether the anonymity of any woman upon whom an abortion |
31 | was performed or attempted shall be preserved from public |
32 | disclosure if she does not give her consent to such |
33 | disclosure; requiring specified findings if a court |
34 | determines that the anonymity of the woman should be |
35 | preserved from public disclosure; conforming cross- |
36 | references; amending s. 765.113, F.S.; conforming a cross- |
37 | reference; requiring rulemaking by the Department of |
38 | Health by a specified date; providing an effective date. |
39 |
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40 | Be It Enacted by the Legislature of the State of Florida: |
41 |
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42 | Section 1. This act may be cited as the "Pain-Capable |
43 | Unborn Child Protection Act." |
44 | Section 2. The Legislature finds that: |
45 | (1) By 20 weeks after fertilization there is substantial |
46 | evidence that an unborn child has the physical structures |
47 | necessary to experience pain. |
48 | (2) There is substantial evidence that, by 20 weeks after |
49 | fertilization, unborn children seek to evade certain stimuli in |
50 | a manner that in an infant or an adult would be interpreted as a |
51 | response to pain. |
52 | (3) Anesthesia is routinely administered to unborn |
53 | children who have developed 20 weeks or more past fertilization |
54 | who undergo prenatal surgery. |
55 | (4) Even before 20 weeks after fertilization, unborn |
56 | children have been observed to exhibit hormonal stress responses |
57 | to painful stimuli. Such responses were reduced when pain |
58 | medication was administered directly to such unborn children. |
59 | (5) This state has a compelling state interest in |
60 | protecting the lives of unborn children from the stage at which |
61 | substantial medical evidence indicates that they are capable of |
62 | feeling pain. |
63 | Section 3. Section 390.011, Florida Statutes, is amended |
64 | to read: |
65 | 390.011 Definitions.-As used in this chapter, the term: |
66 | (1) "Abortion" means the termination of human pregnancy |
67 | with an intention other than to produce a live birth or to |
68 | remove a dead fetus. |
69 | (2) "Abortion clinic" or "clinic" means any facility in |
70 | which abortions are performed. The term does not include: |
71 | (a) A hospital; or |
72 | (b) A physician's office, provided that the office is not |
73 | used primarily for the performance of abortions. |
74 | (3) "Agency" means the Agency for Health Care |
75 | Administration. |
76 | (4) "Attempt to perform or induce an abortion" means an |
77 | act, or an omission of a statutorily required act, that, under |
78 | the circumstances as the person believes them to be, constitutes |
79 | a substantial step in a course of conduct planned to culminate |
80 | in the performance or induction of an abortion. |
81 | (5)(4) "Department" means the Department of Health. |
82 | (6) "Fertilization" means the fusion of a human |
83 | spermatozoon with a human ovum. |
84 | (7)(5) "Hospital" means a facility as defined in s. |
85 | 395.002(12) and licensed under chapter 395 and part II of |
86 | chapter 408. |
87 | (8) "Medical emergency" means a condition that, in |
88 | reasonable medical judgment, so complicates the medical |
89 | condition of the pregnant woman as to necessitate the immediate |
90 | termination of her pregnancy to avert her death or for which a |
91 | delay will create a serious risk of substantial and irreversible |
92 | physical impairment of a major bodily function. A condition is |
93 | not a medical emergency if it is based on a claim or diagnosis |
94 | that the woman will engage in conduct that would result in her |
95 | death or in substantial and irreversible physical impairment of |
96 | a major bodily function. |
97 | (9)(6) "Partial-birth abortion" means a termination of |
98 | pregnancy in which the physician performing the termination of |
99 | pregnancy partially vaginally delivers a living fetus before |
100 | killing the fetus and completing the delivery. |
101 | (10)(7) "Physician" means a physician licensed under |
102 | chapter 458 or chapter 459 or a physician practicing medicine or |
103 | osteopathic medicine in the employment of the United States. |
104 | (11) "Postfertilization age" means the age of an unborn |
105 | child as calculated from the fertilization of the human ovum. |
106 | (12) "Probable postfertilization age of the unborn child" |
107 | means what, in reasonable medical judgment, will with reasonable |
108 | probability be the postfertilization age of the unborn child at |
109 | the time an abortion is planned to be performed. |
110 | (13) "Reasonable medical judgment" means a medical |
111 | judgment that would be made by a reasonably prudent physician, |
112 | knowledgeable about the case and the treatment possibilities |
113 | with respect to the medical conditions involved. |
114 | (14)(8) "Third trimester" means the weeks of pregnancy |
115 | after the 24th week of pregnancy. |
116 | (15) "Unborn child" or "fetus" means an individual |
117 | organism of the species homo sapiens from fertilization until |
118 | live birth. |
119 | Section 4. A new subsection (1) is added to section |
120 | 390.0111, Florida Statutes, subsections (1) through (11) of that |
121 | section are renumbered as subsections (2) through (12), |
122 | respectively, and present subsection (10) and paragraph (b) of |
123 | present subsection (11) of that section are amended, to read: |
124 | 390.0111 Termination of pregnancies.- |
125 | (1) PAIN-CAPABLE UNBORN CHILD PROTECTION.- |
126 | (a)1. Except in the case of a medical emergency that |
127 | prevents compliance with this subsection, an abortion may not be |
128 | performed or induced or be attempted to be performed or induced |
129 | unless the physician performing or inducing it has first made a |
130 | determination of the probable postfertilization age of the |
131 | unborn child or relied upon such a determination made by another |
132 | physician. In making such a determination, a physician shall |
133 | make such inquiries of the pregnant woman and perform or cause |
134 | to be performed such medical examinations and tests as a |
135 | reasonably prudent physician, knowledgeable about the case and |
136 | the medical conditions involved, would consider necessary to |
137 | perform in making an accurate diagnosis with respect to |
138 | postfertilization age. |
139 | 2. Failure by any physician to conform to any requirement |
140 | of this paragraph constitutes grounds for disciplinary action |
141 | under s. 458.331 or s. 459.015. |
142 | (b) A person may not perform or induce or attempt to |
143 | perform or induce an abortion upon a woman when it has been |
144 | determined, by the physician performing or inducing the abortion |
145 | or by another physician upon whose determination that physician |
146 | relies, that the probable postfertilization age of the woman's |
147 | unborn child is 20 or more weeks unless, in reasonable medical |
148 | judgment: |
149 | 1. She has a condition that so complicates her medical |
150 | condition as to necessitate the abortion of her pregnancy to |
151 | avert her death or to avert serious risk of substantial and |
152 | irreversible physical impairment of a major bodily function; or |
153 | 2. It is necessary to preserve the life of an unborn |
154 | child. |
155 |
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156 | Such a condition may not be deemed to exist if it is based on a |
157 | claim or diagnosis that the woman will engage in conduct that |
158 | would result in her death or in substantial and irreversible |
159 | physical impairment of a major bodily function. With respect to |
160 | the exceptions in subsections 1. and 2., the physician shall |
161 | terminate the pregnancy in the manner that, in reasonable |
162 | medical judgment, provides the best opportunity for the unborn |
163 | child to survive, unless, in reasonable medical judgment, |
164 | termination of the pregnancy in that manner would pose a greater |
165 | risk either of the death of the pregnant woman or of the |
166 | substantial and irreversible physical impairment of a major |
167 | bodily function of the woman than would another available |
168 | method. Such greater risk may not be deemed to exist if it is |
169 | based on a claim or diagnosis that the woman will engage in |
170 | conduct that would result in her death or in substantial and |
171 | irreversible physical impairment of a major bodily function. |
172 | (c) Any physician who performs or induces or attempts to |
173 | perform or induce an abortion shall report to the department, on |
174 | a schedule and in accordance with forms and rules and |
175 | regulations adopted by the department, the following: |
176 | 1. If a determination of probable postfertilization age |
177 | was made, the probable postfertilization age determined and the |
178 | method and basis of the determination. |
179 | 2. If a determination of probable postfertilization age |
180 | was not made, the basis of the determination that a medical |
181 | emergency existed. |
182 | 3. If the probable postfertilization age was determined to |
183 | be 20 or more weeks, the basis of the determination that the |
184 | pregnant woman had a condition that so complicated her medical |
185 | condition as to necessitate the abortion of her pregnancy to |
186 | avert her death or to avert serious risk of substantial and |
187 | irreversible physical impairment of a major bodily function, or |
188 | the basis of the determination that it was necessary to preserve |
189 | the life of an unborn child. |
190 | 4. The method used for the abortion and, in the case of an |
191 | abortion performed when the probable postfertilization age was |
192 | determined to be 20 or more weeks, whether the method of |
193 | abortion used was one that, in reasonable medical judgment, |
194 | provided the best opportunity for the unborn child to survive |
195 | or, if such a method was not used, the basis of the |
196 | determination that termination of the pregnancy in that manner |
197 | would pose a greater risk either of the death of the pregnant |
198 | woman or of the substantial and irreversible physical impairment |
199 | of a major bodily function of the woman than would other |
200 | available methods. |
201 | (d) By June 30 of each year, the department shall issue a |
202 | public report providing statistics for the previous calendar |
203 | year compiled from all of the reports covering that year |
204 | submitted in accordance with paragraph (c). Each such report |
205 | shall also provide the statistics for all previous calendar |
206 | years during which this subsection was in effect, adjusted to |
207 | reflect any additional information from late or corrected |
208 | reports. The department shall take care to ensure that none of |
209 | the information included in the public reports could reasonably |
210 | lead to the identification of any pregnant woman upon whom an |
211 | abortion was performed. |
212 | (e) Any physician who fails to submit a report under |
213 | paragraph (c) by the end of 30 days after the due date shall be |
214 | subject to a late fee of $500 for each additional 30-day period |
215 | or portion of a 30-day period the report is overdue. Any |
216 | physician required to report in accordance with this subsection |
217 | who has not submitted a report, or has submitted only an |
218 | incomplete report, more than 1 year after the due date, may be |
219 | directed by a court of competent jurisdiction to submit a |
220 | complete report within a time period stated by court order or be |
221 | subject to civil contempt. Failure by any physician to conform |
222 | to any requirement of this subsection constitutes grounds for |
223 | disciplinary action under s. 458.331 or s. 459.015. Intentional |
224 | or reckless falsification of any report required under paragraph |
225 | (c) is a misdemeanor of the second degree, punishable as |
226 | provided in s. 775.082 or s. 775.083. |
227 | (f) Any person who intentionally or recklessly performs or |
228 | attempts to perform an abortion in violation of paragraph (b) |
229 | commits a felony of the third degree, punishable as provided in |
230 | s. 775.082, s. 775.083, or s. 775.084. A penalty may not be |
231 | assessed against the woman upon whom the abortion was performed |
232 | or attempted to be performed. |
233 | (g)1. Any woman upon whom an abortion was performed in |
234 | violation of this subsection or the father of the unborn child |
235 | who was the subject of such an abortion may maintain an action |
236 | against the person who performed the abortion in an intentional |
237 | or a reckless violation of this subsection for actual damages. |
238 | Any woman upon whom an abortion was attempted in violation of |
239 | this subsection may maintain an action against the person who |
240 | attempted to perform the abortion in an intentional or a |
241 | reckless violation of this subsection for actual damages. |
242 | 2. The woman upon whom an abortion was performed or |
243 | attempted in violation of this subsection has a cause of action |
244 | for injunctive relief against any person who has intentionally |
245 | violated this subsection. Such a cause of action may also be |
246 | maintained by a spouse, parent, sibling, guardian, or current or |
247 | former licensed health care provider of such a woman or by the |
248 | Attorney General or a county attorney with appropriate |
249 | jurisdiction. An injunction granted under this subparagraph |
250 | shall prevent the violator from performing or attempting more |
251 | abortions in violation of this subsection in this state. |
252 | 3. If judgment is rendered in favor of the plaintiff in an |
253 | action described in this section, the court shall also render |
254 | judgment for reasonable attorney's fees in favor of the |
255 | plaintiff against the defendant. |
256 | 4. If judgment is rendered in favor of the defendant and |
257 | the court finds that the plaintiff's suit was frivolous and |
258 | brought in bad faith, the court shall also render judgment for |
259 | reasonable attorney's fees in favor of the defendant against the |
260 | plaintiff. |
261 | 5. Neither damages nor attorney's fees may be assessed |
262 | against the woman upon whom an abortion was performed or |
263 | attempted except as provided in subparagraph 4. |
264 | (h) In every civil or criminal proceeding or action |
265 | brought under this subsection, the court shall rule whether the |
266 | anonymity of any woman upon whom an abortion was performed or |
267 | attempted shall be preserved from public disclosure if she does |
268 | not give her consent to such disclosure. The court, upon motion |
269 | or sua sponte, shall make such a ruling and, upon determining |
270 | that her anonymity should be preserved, shall issue orders to |
271 | the parties, witnesses, and counsel and direct the sealing of |
272 | the record and exclusion of individuals from courtrooms or |
273 | hearing rooms to the extent necessary to safeguard her identity |
274 | from public disclosure. Each such order shall be accompanied by |
275 | specific written findings explaining why the anonymity of the |
276 | woman should be preserved from public disclosure, why the order |
277 | is essential to that end, how the order is narrowly tailored to |
278 | serve that interest, and why no reasonable less restrictive |
279 | alternative exists. In the absence of written consent of the |
280 | woman upon whom an abortion was performed or attempted, anyone, |
281 | other than a public official, who brings an action under |
282 | paragraph (g) shall do so under a pseudonym. This paragraph does |
283 | not require the concealment of the identity of the plaintiff or |
284 | of witnesses from the defendant or from attorneys for the |
285 | defendant. |
286 | (11)(10) PENALTIES FOR VIOLATION.-Except as provided in |
287 | subsections (1), (4), (3) and (8)(7): |
288 | (a) Any person who willfully performs, or actively |
289 | participates in, a termination of pregnancy procedure in |
290 | violation of the requirements of this section commits a felony |
291 | of the third degree, punishable as provided in s. 775.082, s. |
292 | 775.083, or s. 775.084. |
293 | (b) Any person who performs, or actively participates in, |
294 | a termination of pregnancy procedure in violation of the |
295 | provisions of this section which results in the death of the |
296 | woman commits a felony of the second degree, punishable as |
297 | provided in s. 775.082, s. 775.083, or s. 775.084. |
298 | (12)(11) CIVIL ACTION PURSUANT TO PARTIAL-BIRTH ABORTION; |
299 | RELIEF.- |
300 | (b) In a civil action under this section, appropriate |
301 | relief includes: |
302 | 1. Monetary damages for all injuries, psychological and |
303 | physical, occasioned by the violation of subsection (6) (5). |
304 | 2. Damages equal to three times the cost of the partial- |
305 | birth abortion. |
306 | Section 5. Subsection (2) of section 765.113, Florida |
307 | Statutes, is amended to read: |
308 | 765.113 Restrictions on providing consent.-Unless the |
309 | principal expressly delegates such authority to the surrogate in |
310 | writing, or a surrogate or proxy has sought and received court |
311 | approval pursuant to rule 5.900 of the Florida Probate Rules, a |
312 | surrogate or proxy may not provide consent for: |
313 | (2) Withholding or withdrawing life-prolonging procedures |
314 | from a pregnant patient prior to viability as defined in s. |
315 | 390.0111(5)(4). |
316 | Section 6. Notwithstanding any other provision of law, |
317 | within 90 days after the effective date of this act the |
318 | Department of Health shall adopt rules to assist in compliance |
319 | with s. 390.0111(1)(c), (d), and (e), Florida Statutes, as |
320 | created by this act. |
321 | Section 7. This act shall take effect July 1, 2011. |