| 1 | A bill to be entitled |
| 2 | An act relating to abortion; providing a short title; |
| 3 | providing legislative findings; amending s. 390.011, |
| 4 | F.S.; providing definitions; amending s. 390.0111, |
| 5 | F.S.; requiring a physician performing or inducing an |
| 6 | abortion to first make a determination of the probable |
| 7 | postfertilization age of the unborn child; providing |
| 8 | an exception; providing for disciplinary action |
| 9 | against noncompliant physicians; prohibiting an |
| 10 | abortion if the probable postfertilization age of the |
| 11 | woman's unborn child is 20 or more weeks; providing an |
| 12 | exception; providing recordkeeping and reporting |
| 13 | requirements for physicians; providing for rulemaking; |
| 14 | requiring an annual report by the Department of |
| 15 | Health; providing financial penalties for late |
| 16 | reports; providing for civil actions to require |
| 17 | reporting; providing for disciplinary action against |
| 18 | noncompliant physicians; providing criminal penalties |
| 19 | for intentional or reckless falsification of a report; |
| 20 | providing criminal penalties for any person who |
| 21 | intentionally or recklessly performs or attempts to |
| 22 | perform an abortion in violation of specified |
| 23 | provisions; providing that a penalty may not be |
| 24 | assessed against a woman involved in such an abortion |
| 25 | or attempt; providing for civil actions by certain |
| 26 | persons for intentional or reckless violations; |
| 27 | providing for actions for injunctive relief by certain |
| 28 | persons for intentional violations; providing for |
| 29 | award of attorney fees in certain circumstances; |
| 30 | requiring that in every civil or criminal proceeding |
| 31 | or action brought under the court rule on whether the |
| 32 | anonymity of any woman upon whom an abortion was |
| 33 | performed or attempted shall be preserved from public |
| 34 | disclosure if she does not give her consent to such |
| 35 | disclosure; requiring specified findings if a court |
| 36 | determines that the anonymity of the woman should be |
| 37 | preserved from public disclosure; conforming cross- |
| 38 | references; amending s. 765.113, F.S.; conforming a |
| 39 | cross-reference; requiring rulemaking by the |
| 40 | Department of Health by a specified date; providing an |
| 41 | effective date. |
| 42 |
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| 43 | Be It Enacted by the Legislature of the State of Florida: |
| 44 |
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| 45 | Section 1. This act may be cited as the "Pain-Capable |
| 46 | Unborn Child Protection Act." |
| 47 | Section 2. The Legislature finds that: |
| 48 | (1) By 20 weeks after fertilization there is substantial |
| 49 | evidence that an unborn child has the physical structures |
| 50 | necessary to experience pain. |
| 51 | (2) There is substantial evidence that, by 20 weeks after |
| 52 | fertilization, unborn children seek to evade certain stimuli in |
| 53 | a manner that in an infant or an adult would be interpreted as a |
| 54 | response to pain. |
| 55 | (3) Anesthesia is routinely administered to unborn |
| 56 | children who have developed 20 weeks or more past fertilization |
| 57 | who undergo prenatal surgery. |
| 58 | (4) Even before 20 weeks after fertilization, unborn |
| 59 | children have been observed to exhibit hormonal stress responses |
| 60 | to painful stimuli. Such responses were reduced when pain |
| 61 | medication was administered directly to such unborn children. |
| 62 | (5) This state has a compelling state interest in |
| 63 | protecting the lives of unborn children from the stage at which |
| 64 | substantial medical evidence indicates that they are capable of |
| 65 | feeling pain. |
| 66 | Section 3. Section 390.011, Florida Statutes, is amended |
| 67 | to read: |
| 68 | 390.011 Definitions.-As used in this chapter, the term: |
| 69 | (1) "Abortion" means the termination of human pregnancy |
| 70 | with an intention other than to produce a live birth or to |
| 71 | remove a dead fetus. |
| 72 | (2) "Abortion clinic" or "clinic" means any facility in |
| 73 | which abortions are performed. The term does not include: |
| 74 | (a) A hospital; or |
| 75 | (b) A physician's office, provided that the office is not |
| 76 | used primarily for the performance of abortions. |
| 77 | (3) "Agency" means the Agency for Health Care |
| 78 | Administration. |
| 79 | (4) "Attempt to perform or induce an abortion" means an |
| 80 | act, or an omission of a statutorily required act, that, under |
| 81 | the circumstances as the person believes them to be, constitutes |
| 82 | a substantial step in a course of conduct planned to culminate |
| 83 | in the performance or induction of an abortion. |
| 84 | (5)(4) "Department" means the Department of Health. |
| 85 | (6) "Fertilization" means the fusion of a human |
| 86 | spermatozoon with a human ovum. |
| 87 | (7)(5) "Hospital" means a facility as defined in s. |
| 88 | 395.002(12) and licensed under chapter 395 and part II of |
| 89 | chapter 408. |
| 90 | (8) "Medical emergency" means a condition that, in |
| 91 | reasonable medical judgment, so complicates the medical |
| 92 | condition of the pregnant woman as to necessitate the immediate |
| 93 | termination of her pregnancy to avert her death or for which a |
| 94 | delay will create a serious risk of substantial and irreversible |
| 95 | physical impairment of a major bodily function. A condition is |
| 96 | not a medical emergency if it is based on a claim or diagnosis |
| 97 | that the woman will engage in conduct that would result in her |
| 98 | death or in substantial and irreversible physical impairment of |
| 99 | a major bodily function. |
| 100 | (9)(6) "Partial-birth abortion" means a termination of |
| 101 | pregnancy in which the physician performing the termination of |
| 102 | pregnancy partially vaginally delivers a living fetus before |
| 103 | killing the fetus and completing the delivery. |
| 104 | (10)(7) "Physician" means a physician licensed under |
| 105 | chapter 458 or chapter 459 or a physician practicing medicine or |
| 106 | osteopathic medicine in the employment of the United States. |
| 107 | (11) "Postfertilization age" means the age of an unborn |
| 108 | child as calculated from the fertilization of the human ovum. |
| 109 | (12) "Probable postfertilization age of the unborn child" |
| 110 | means what, in reasonable medical judgment, will with reasonable |
| 111 | probability be the postfertilization age of the unborn child at |
| 112 | the time an abortion is planned to be performed. |
| 113 | (13) "Reasonable medical judgment" means a medical |
| 114 | judgment that would be made by a reasonably prudent physician, |
| 115 | knowledgeable about the case and the treatment possibilities |
| 116 | with respect to the medical conditions involved. |
| 117 | (14)(8) "Third trimester" means the weeks of pregnancy |
| 118 | after the 24th week of pregnancy. |
| 119 | (15) "Unborn child" or "fetus" means an individual |
| 120 | organism of the species homo sapiens from fertilization until |
| 121 | live birth. |
| 122 | Section 4. A new subsection (1) is added to section |
| 123 | 390.0111, Florida Statutes, subsections (1) through (13) of that |
| 124 | section are renumbered as subsections (2) through (14), |
| 125 | respectively, and present subsection (10) and paragraph (b) of |
| 126 | present subsection (11) of that section are amended, to read: |
| 127 | 390.0111 Termination of pregnancies.- |
| 128 | (1) PAIN-CAPABLE UNBORN CHILD PROTECTION.- |
| 129 | (a)1. Except in the case of a medical emergency that |
| 130 | prevents compliance with this subsection, an abortion may not be |
| 131 | performed or induced or be attempted to be performed or induced |
| 132 | unless the physician performing or inducing it has first made a |
| 133 | determination of the probable postfertilization age of the |
| 134 | unborn child or relied upon such a determination made by another |
| 135 | physician. In making such a determination, a physician shall |
| 136 | make such inquiries of the pregnant woman and perform or cause |
| 137 | to be performed such medical examinations and tests as a |
| 138 | reasonably prudent physician, knowledgeable about the case and |
| 139 | the medical conditions involved, would consider necessary to |
| 140 | perform in making an accurate diagnosis with respect to |
| 141 | postfertilization age. |
| 142 | 2. Failure by any physician to conform to any requirement |
| 143 | of this paragraph constitutes grounds for disciplinary action |
| 144 | under s. 458.331 or s. 459.015. |
| 145 | (b) A person may not perform or induce or attempt to |
| 146 | perform or induce an abortion upon a woman when it has been |
| 147 | determined, by the physician performing or inducing the abortion |
| 148 | or by another physician upon whose determination that physician |
| 149 | relies, that the probable postfertilization age of the woman's |
| 150 | unborn child is 20 or more weeks unless, in reasonable medical |
| 151 | judgment she has a condition that so complicates her medical |
| 152 | condition as to necessitate the abortion of her pregnancy to |
| 153 | avert her death or to avert serious risk of substantial and |
| 154 | irreversible physical impairment of a major bodily function. |
| 155 | Such a condition may not be deemed to exist if it is based on a |
| 156 | claim or diagnosis that the woman will engage in conduct that |
| 157 | would result in her death or in substantial and irreversible |
| 158 | physical impairment of a major bodily function. With respect to |
| 159 | this exception, the physician shall terminate the pregnancy in |
| 160 | the manner that, in reasonable medical judgment, provides the |
| 161 | best opportunity for the unborn child to survive, unless, in |
| 162 | reasonable medical judgment, termination of the pregnancy in |
| 163 | that manner would pose a greater risk either of the death of the |
| 164 | pregnant woman or of the substantial and irreversible physical |
| 165 | impairment of a major bodily function of the woman than would |
| 166 | another available method. Such greater risk may not be deemed to |
| 167 | exist if it is based on a claim or diagnosis that the woman will |
| 168 | engage in conduct that would result in her death or in |
| 169 | substantial and irreversible physical impairment of a major |
| 170 | bodily function. |
| 171 | (c) Any physician who performs or induces or attempts to |
| 172 | perform or induce an abortion shall report to the department, on |
| 173 | a schedule and in accordance with forms and rules and |
| 174 | regulations adopted by the department, the following: |
| 175 | 1. If a determination of probable postfertilization age |
| 176 | was made, the probable postfertilization age determined and the |
| 177 | method and basis of the determination. |
| 178 | 2. If a determination of probable postfertilization age |
| 179 | was not made, the basis of the determination that a medical |
| 180 | emergency existed. |
| 181 | 3. If the probable postfertilization age was determined to |
| 182 | be 20 or more weeks, the basis of the determination that the |
| 183 | pregnant woman had a condition that so complicated her medical |
| 184 | condition as to necessitate the abortion of her pregnancy to |
| 185 | avert her death or to avert serious risk of substantial and |
| 186 | irreversible physical impairment of a major bodily function, or |
| 187 | the basis of the determination that it was necessary to preserve |
| 188 | the life of an unborn child. |
| 189 | 4. The method used for the abortion and, in the case of an |
| 190 | abortion performed when the probable postfertilization age was |
| 191 | determined to be 20 or more weeks, whether the method of |
| 192 | abortion used was one that, in reasonable medical judgment, |
| 193 | provided the best opportunity for the unborn child to survive |
| 194 | or, if such a method was not used, the basis of the |
| 195 | determination that termination of the pregnancy in that manner |
| 196 | would pose a greater risk either of the death of the pregnant |
| 197 | woman or of the substantial and irreversible physical impairment |
| 198 | of a major bodily function of the woman than would other |
| 199 | available methods. |
| 200 | (d) By June 30 of each year, the department shall issue a |
| 201 | public report providing statistics for the previous calendar |
| 202 | year compiled from all of the reports covering that year |
| 203 | submitted in accordance with paragraph (c). Each such report |
| 204 | shall also provide the statistics for all previous calendar |
| 205 | years during which this subsection was in effect, adjusted to |
| 206 | reflect any additional information from late or corrected |
| 207 | reports. The department shall take care to ensure that none of |
| 208 | the information included in the public reports could reasonably |
| 209 | lead to the identification of any pregnant woman upon whom an |
| 210 | abortion was performed. |
| 211 | (e) Any physician who fails to submit a report under |
| 212 | paragraph (c) by the end of 30 days after the due date shall be |
| 213 | subject to a late fee of $500 for each additional 30-day period |
| 214 | or portion of a 30-day period the report is overdue. Any |
| 215 | physician required to report in accordance with this subsection |
| 216 | who has not submitted a report, or has submitted only an |
| 217 | incomplete report, more than 1 year after the due date, may be |
| 218 | directed by a court of competent jurisdiction to submit a |
| 219 | complete report within a time period stated by court order or be |
| 220 | subject to civil contempt. Failure by any physician to conform |
| 221 | to any requirement of this subsection constitutes grounds for |
| 222 | disciplinary action under s. 458.331 or s. 459.015. Intentional |
| 223 | or reckless falsification of any report required under paragraph |
| 224 | (c) is a misdemeanor of the second degree, punishable as |
| 225 | provided in s. 775.082 or s. 775.083. |
| 226 | (f) Any person who intentionally or recklessly performs or |
| 227 | attempts to perform an abortion in violation of paragraph (b) |
| 228 | commits a felony of the third degree, punishable as provided in |
| 229 | s. 775.082, s. 775.083, or s. 775.084. A penalty may not be |
| 230 | assessed against the woman upon whom the abortion was performed |
| 231 | or attempted to be performed. |
| 232 | (g)1. Any woman upon whom an abortion was performed in |
| 233 | violation of this subsection or the father of the unborn child |
| 234 | who was the subject of such an abortion may maintain an action |
| 235 | against the person who performed the abortion in an intentional |
| 236 | or a reckless violation of this subsection for actual damages. |
| 237 | Any woman upon whom an abortion was attempted in violation of |
| 238 | this subsection may maintain an action against the person who |
| 239 | attempted to perform the abortion in an intentional or a |
| 240 | reckless violation of this subsection for actual damages. |
| 241 | 2. The woman upon whom an abortion was performed or |
| 242 | attempted in violation of this subsection has a cause of action |
| 243 | for injunctive relief against any person who has intentionally |
| 244 | violated this subsection. Such a cause of action may also be |
| 245 | maintained by a spouse, parent, sibling, guardian, or current or |
| 246 | former licensed health care provider of such a woman or by the |
| 247 | Attorney General or a state attorney with appropriate |
| 248 | jurisdiction. An injunction granted under this subparagraph |
| 249 | shall prevent the violator from performing or attempting more |
| 250 | abortions in violation of this subsection in this state. |
| 251 | 3. If judgment is rendered in favor of the plaintiff in an |
| 252 | action described in this section, the court shall also render |
| 253 | judgment for reasonable attorney fees in favor of the plaintiff |
| 254 | against the defendant. |
| 255 | 4. If judgment is rendered in favor of the defendant and |
| 256 | the court finds that the plaintiff's suit was frivolous and |
| 257 | brought in bad faith, the court shall also render judgment for |
| 258 | reasonable attorney fees in favor of the defendant against the |
| 259 | plaintiff. |
| 260 | 5. Neither damages nor attorney fees may be assessed |
| 261 | against the woman upon whom an abortion was performed or |
| 262 | attempted except as provided in subparagraph 4. |
| 263 | (h) In every civil or criminal proceeding or action |
| 264 | brought under this subsection, the court shall rule whether the |
| 265 | anonymity of any woman upon whom an abortion was performed or |
| 266 | attempted shall be preserved from public disclosure if she does |
| 267 | not give her consent to such disclosure. The court, upon motion |
| 268 | or sua sponte, shall make such a ruling and, upon determining |
| 269 | that her anonymity should be preserved, shall issue orders to |
| 270 | the parties, witnesses, and counsel and direct the sealing of |
| 271 | the record and exclusion of individuals from courtrooms or |
| 272 | hearing rooms to the extent necessary to safeguard her identity |
| 273 | from public disclosure. Each such order shall be accompanied by |
| 274 | specific written findings explaining why the anonymity of the |
| 275 | woman should be preserved from public disclosure, why the order |
| 276 | is essential to that end, how the order is narrowly tailored to |
| 277 | serve that interest, and why no reasonable less restrictive |
| 278 | alternative exists. In the absence of written consent of the |
| 279 | woman upon whom an abortion was performed or attempted, anyone, |
| 280 | other than a public official, who brings an action under |
| 281 | paragraph (g) shall do so under a pseudonym. This paragraph does |
| 282 | not require the concealment of the identity of the plaintiff or |
| 283 | of witnesses from the defendant or from attorneys for the |
| 284 | defendant. |
| 285 | (11)(10) PENALTIES FOR VIOLATION.-Except as provided in |
| 286 | subsections (1), (4), (3) and (8) (7): |
| 287 | (a) Any person who willfully performs, or actively |
| 288 | participates in, a termination of pregnancy procedure in |
| 289 | violation of the requirements of this section commits a felony |
| 290 | of the third degree, punishable as provided in s. 775.082, s. |
| 291 | 775.083, or s. 775.084. |
| 292 | (b) Any person who performs, or actively participates in, |
| 293 | a termination of pregnancy procedure in violation of the |
| 294 | provisions of this section which results in the death of the |
| 295 | woman commits a felony of the second degree, punishable as |
| 296 | provided in s. 775.082, s. 775.083, or s. 775.084. |
| 297 | (12)(11) CIVIL ACTION PURSUANT TO PARTIAL-BIRTH ABORTION; |
| 298 | RELIEF.- |
| 299 | (b) In a civil action under this section, appropriate |
| 300 | relief includes: |
| 301 | 1. Monetary damages for all injuries, psychological and |
| 302 | physical, occasioned by the violation of subsection (6) (5). |
| 303 | 2. Damages equal to three times the cost of the partial- |
| 304 | birth abortion. |
| 305 | Section 5. Subsection (2) of section 765.113, Florida |
| 306 | Statutes, is amended to read: |
| 307 | 765.113 Restrictions on providing consent.-Unless the |
| 308 | principal expressly delegates such authority to the surrogate in |
| 309 | writing, or a surrogate or proxy has sought and received court |
| 310 | approval pursuant to rule 5.900 of the Florida Probate Rules, a |
| 311 | surrogate or proxy may not provide consent for: |
| 312 | (2) Withholding or withdrawing life-prolonging procedures |
| 313 | from a pregnant patient prior to viability as defined in s. |
| 314 | 390.0111(5)(4). |
| 315 | Section 6. Notwithstanding any other provision of law, |
| 316 | within 90 days after the effective date of this act the |
| 317 | Department of Health shall adopt rules to assist in compliance |
| 318 | with s. 390.0111(1)(c), (d), and (e), Florida Statutes, as |
| 319 | created by this act. |
| 320 | Section 7. This act shall take effect July 1, 2012. |