Florida Senate - 2017                                     SB 348
       
       
        
       By Senator Steube
       
       23-00215C-17                                           2017348__
    1                        A bill to be entitled                      
    2         An act relating to the termination of pregnancy;
    3         creating s. 390.301, F.S.; providing a short title;
    4         defining terms; prohibiting the attempted or actual
    5         performance or induction of an abortion in certain
    6         circumstances; providing a parameter to be used in
    7         determining the applicability of the prohibition;
    8         requiring a physician to make a specified
    9         determination before performing or inducing or
   10         attempting to perform or induce an abortion; requiring
   11         that, except in the case of a medical emergency, the
   12         physician performing or inducing an abortion determine
   13         the probable postfertilization age of the unborn
   14         child; providing parameters for making the
   15         determination; requiring a physician to use an
   16         abortion method that provides the best opportunity for
   17         the unborn child to survive the abortion in specified
   18         circumstances; requiring certain physicians to report
   19         specified information to the Department of Health
   20         containing specified data each time the physician
   21         performs or attempts to perform an abortion;
   22         prohibiting the reports from including information
   23         that would identify the woman whose pregnancy was
   24         terminated; requiring the reports to include a unique
   25         medical record identification number; requiring the
   26         department to publish a summary of data from the
   27         physician reports on an annual basis; providing
   28         penalties for failure to timely submit physician
   29         reports; providing for disciplinary action; requiring
   30         the department to adopt rules; providing criminal
   31         penalties and civil and criminal remedies; providing
   32         for the awarding of attorney fees; requiring a court
   33         to rule on the need for the protection, in certain
   34         civil and criminal proceedings or actions, of the
   35         privacy of a woman on whom an abortion is performed or
   36         induced or on whom an abortion is attempted to be
   37         performed or induced; requiring that certain actions
   38         be brought under a pseudonym; creating a special
   39         revenue account to pay for certain costs and expenses
   40         incurred by the state in defending the act; providing
   41         for funding and retention of interest; providing
   42         construction; providing an effective date.
   43  
   44         WHEREAS, pain receptors are present throughout an unborn
   45  child’s entire body no later than 16 weeks after fertilization,
   46  and nerves link these receptors to the brain’s thalamus and
   47  subcortical plate by no later than 20 weeks after fertilization,
   48  and
   49         WHEREAS, an unborn child reacts to touch by 8 weeks after
   50  fertilization, and
   51         WHEREAS, 20 weeks after fertilization, an unborn child
   52  reacts to stimuli that would be recognized as painful if applied
   53  to an adult human, by recoiling or exhibiting other avoidance
   54  responses, and
   55         WHEREAS, the application of painful stimuli to an unborn
   56  child is associated with significant increases in stress
   57  hormones in the unborn child, known as the stress response, and
   58         WHEREAS, subjection to painful stimuli is associated with
   59  long-term harmful neurodevelopmental effects, such as altered
   60  pain sensitivity and, possibly, emotional, behavioral, and
   61  learning disabilities later in life, and
   62         WHEREAS, for purposes of surgery on unborn children, fetal
   63  anesthesia is routinely administered and is associated with a
   64  decrease in stress hormones compared to their level when painful
   65  stimuli are applied without anesthesia, and
   66         WHEREAS, the assertion by some medical experts that an
   67  unborn child is incapable of experiencing pain until later than
   68  20 weeks after fertilization predominately rests on the
   69  assumption that the ability to experience pain depends on the
   70  cerebral cortex and requires nerve connections between the
   71  thalamus and the cerebral cortex, and
   72         WHEREAS, recent medical research and analysis, especially
   73  since 2007, provides strong support for the conclusion that a
   74  functioning cerebral cortex is not necessary to experience pain,
   75  and
   76         WHEREAS, substantial evidence indicates that children born
   77  missing most of the cerebral cortex, a condition known as
   78  hydranencephaly, nevertheless experience pain, and
   79         WHEREAS, in adults, stimulation or ablation of the cerebral
   80  cortex does not alter pain perception, while stimulation or
   81  ablation of the thalamus does, and
   82         WHEREAS, substantial evidence indicates that neural
   83  elements, such as the subcortical plate, available at specific
   84  times during the early development of an unborn child serve as
   85  pain-processing structures and are different from the neural
   86  elements used for pain processing by adults, and
   87         WHEREAS, the assertion of some medical experts that an
   88  unborn child remains in a coma-like sleep state that precludes
   89  it from experiencing pain is inconsistent with the documented
   90  reaction of unborn children to painful stimuli and with the
   91  experience of fetal surgeons who have found it necessary to
   92  sedate an unborn child with anesthesia to prevent it from
   93  thrashing about in reaction to invasive surgery, and
   94         WHEREAS, the Florida Legislature has the constitutional
   95  authority to make the judgment that there is substantial medical
   96  evidence that an unborn child is capable of experiencing pain by
   97  20 weeks after fertilization, and
   98         WHEREAS, the United States Supreme Court has noted, in
   99  Gonzales v. Carhart, 550 U.S. 124, 162-164 (2007), that “the
  100  Court has given state and federal legislatures wide discretion
  101  to pass legislation in areas where there is medical and
  102  scientific uncertainty,” that “the law need not give abortion
  103  doctors unfettered choice in the course of their medical
  104  practice, nor should it elevate their status above other
  105  physicians in the medical community,” and that “medical
  106  uncertainty does not foreclose the exercise of legislative power
  107  in the abortion context any more than it does in other
  108  contexts,” and
  109         WHEREAS, in Marshall v. United States, 414 U.S. 417, 427
  110  (1974) the United States Supreme Court stated that “when
  111  Congress undertakes to act in areas fraught with medical and
  112  scientific uncertainties, legislative options must be especially
  113  broad,” and
  114         WHEREAS, the State of Florida asserts a compelling state
  115  interest in protecting the lives of unborn children from the
  116  stage in their development at which substantial medical evidence
  117  indicates that they are capable of feeling pain, and
  118         WHEREAS, in enacting this legislation, the State of Florida
  119  is not asking the United States Supreme Court to overturn or
  120  revise its holding, first articulated in Roe v. Wade and
  121  reaffirmed in Planned Parenthood of Southeastern Pennsylvania v.
  122  Casey, 505 U.S. 833, 869 (1992), that the state interest in
  123  unborn human life, which is “legitimate” throughout pregnancy,
  124  becomes “compelling” at the point of fetal viability, but,
  125  rather, it asserts a separate and independent state interest in
  126  unborn human life which becomes compelling once an unborn child
  127  is capable of feeling pain, which is asserted not instead of,
  128  but in addition to, the State of Florida’s compelling state
  129  interest in protecting the lives of unborn children from the
  130  stage of viability, and
  131         WHEREAS, the United States Supreme Court, in Planned
  132  Parenthood of Southeastern Pennsylvania v. Casey, established
  133  that the “constitutional liberty of the woman to have some
  134  freedom to terminate her pregnancy . . . is not so unlimited . .
  135  . that from the outset the State cannot show its concern for the
  136  life of the unborn, and at a later point in fetal development
  137  the State’s interest in life has sufficient force so that the
  138  right of the woman to terminate the pregnancy can be
  139  restricted,” and
  140         WHEREAS, the United States Supreme Court decision upholding
  141  the federal Partial Birth Abortion Act in Gonzales v. Carhart,
  142  550 U.S. 124 (2007) vindicated the dissenting opinion in the
  143  earlier decision in Stenberg v. Carhart, 530 U.S. 914, 958-959
  144  (2000) (Kennedy, J., dissenting), which had struck down a
  145  Nebraska law banning partial-birth abortions, and
  146         WHEREAS, the dissenting opinion in Stenberg v. Carhart
  147  stated that “we held [in Casey] it was inappropriate for the
  148  Judicial Branch to provide an exhaustive list of state interests
  149  implicated by abortion,” that “Casey is premised on the States
  150  having an important constitutional role in defining their
  151  interests in the abortion debate,” that “it is only with this
  152  principle in mind that [a state’s] interests can be given proper
  153  weight,” that “States also have an interest in forbidding
  154  medical procedures which, in the State’s reasonable
  155  determination, might cause the medical profession or society as
  156  a whole to become insensitive, even disdainful, to life,
  157  including life in the human fetus,” and that “a State may take
  158  measures to ensure the medical profession and its members are
  159  viewed as healers, sustained by a compassionate and rigorous
  160  ethic and cognizant of the dignity and value of human life, even
  161  life which cannot survive without the assistance of others,” and
  162         WHEREAS, mindful of Leavitt v. Jane L., 518 U.S. 137
  163  (1996), in which, in the context of determining the severability
  164  of a state statute regulating abortion, the United States
  165  Supreme Court noted that an explicit statement of legislative
  166  intent specifically made applicable to a particular statute is
  167  of greater weight than a general savings or severability clause,
  168  the Legislature intends that if any one or more provisions,
  169  sections, subsections, sentences, clauses, phrases, or words of
  170  this act or the application thereof to any person or
  171  circumstance is found to be unconstitutional, the same is hereby
  172  declared to be severable, and the balance of the act shall
  173  remain effective notwithstanding such unconstitutionality, and
  174         WHEREAS, the Legislature of the State of Florida declares,
  175  moreover, that it would have passed this act, and each
  176  provision, section, subsection, sentence, clause, phrase, or
  177  word thereof, irrespective of the fact that any one or more
  178  provisions, sections, subsections, sentences, clauses, phrases,
  179  or words, or any of their applications, were to be declared
  180  unconstitutional, NOW, THEREFORE,
  181  
  182  Be It Enacted by the Legislature of the State of Florida:
  183  
  184         Section 1. Section 390.301, Florida Statutes, is created to
  185  read:
  186         390.301 Florida Pain-Capable Unborn Child Protection Act.—
  187         (1) SHORT TITLE.—This act may be cited as the “Florida
  188  Pain-Capable Unborn Child Protection Act.”
  189         (2) DEFINITIONS.—As used in this section, the term:
  190         (a)“Abortion” means the use or prescription of any
  191  instrument, medicine, or drug, or any other substance or device,
  192  to intentionally kill the unborn child of a woman known to be
  193  pregnant or to intentionally terminate the pregnancy of a woman
  194  known to be pregnant with a purpose other than to produce a live
  195  birth and preserve the life and health of the child born alive
  196  or to remove a dead unborn child.
  197         (b)“Attempt to perform or induce an abortion” means an
  198  act, or an omission of a statutorily required act, which, under
  199  the circumstances as perceived by the actor, constitutes a
  200  substantial step in a course of conduct planned to culminate in
  201  the performance or induction of an abortion in this state in
  202  violation of this section.
  203         (c)“Fertilization” means the fusion of a human sperm with
  204  a human egg.
  205         (d)“Medical emergency” means a determination, using
  206  reasonable medical judgment, that the pregnant woman’s medical
  207  condition necessitates the immediate abortion of her pregnancy
  208  before determining the postfertilization age of the unborn child
  209  in order to avert the pregnant woman’s death or a serious risk
  210  to the pregnant woman of a substantial and irreversible physical
  211  impairment of one or more of her major bodily functions, not
  212  including psychological or emotional conditions, which may
  213  result from the delay necessary to determine the
  214  postfertilization age of the unborn child. A condition may not
  215  be determined to be a medical emergency if it is based on a
  216  claim or diagnosis that the pregnant woman will engage in
  217  conduct that she intends to result in her death or in a
  218  substantial and irreversible physical impairment of one or more
  219  of her major bodily functions.
  220         (e)“Postfertilization age” means the age of the unborn
  221  child as calculated from the fusion of the human spermatozoon
  222  with the human ovum.
  223         (f)“Probable postfertilization age of the unborn child”
  224  means the probable postfertilization age, in weeks, of the
  225  unborn child at the time the abortion of the unborn child is
  226  planned to be performed or induced as determined through the use
  227  of reasonable medical judgment.
  228         (g)“Serious health risk to the unborn child’s mother”
  229  means that the unborn child’s mother is at risk of death or a
  230  substantial and irreversible physical impairment of one or more
  231  of her major bodily functions, not including psychological or
  232  emotional conditions, due to her pregnancy as determined through
  233  the use of reasonable medical judgment. Such a determination may
  234  not be made if it is based on a claim or diagnosis that the
  235  unborn child’s mother will engage in conduct that she intends to
  236  result in her death or in the substantial and irreversible
  237  physical impairment of one or more of her major bodily
  238  functions.
  239         (h)“Unborn child” or “fetus” means an individual organism
  240  of the species Homo sapiens from fertilization until live birth.
  241         (i) “Unborn child’s mother” means a pregnant female of the
  242  species Homo sapiens regardless of whether she has reached 18
  243  years of age.
  244         (j)“Woman” means a female of the species Homo sapiens
  245  regardless of whether she has reached 18 years of age.
  246         (3) PROTECTION FROM ABORTION OF AN UNBORN CHILD CAPABLE OF
  247  FEELING PAIN.—
  248         (a) A person may not perform or induce, or attempt to
  249  perform or induce, the abortion of an unborn child capable of
  250  feeling pain unless it is necessary to prevent a serious health
  251  risk to the unborn child’s mother.
  252         (b) An unborn child shall be deemed capable of feeling pain
  253  if it has been determined by the physician performing or
  254  inducing, or attempting to perform or induce, an abortion of the
  255  unborn child, or by another physician upon whose determination
  256  such physician relies, that the probable postfertilization age
  257  of the unborn child is 20 or more weeks.
  258         (c) Except in the case of a medical emergency, an abortion
  259  may not be performed or induced, or be attempted to be performed
  260  or induced, unless the physician performing or inducing, or
  261  attempting to perform or induce, the abortion has first made a
  262  determination of the probable postfertilization age of the
  263  unborn child or relied upon such a determination made by another
  264  physician. In making this determination, the physician shall
  265  inquire of the unborn child’s mother and perform or cause to be
  266  performed such medical examinations and tests as a reasonably
  267  prudent physician, knowledgeable about the case and the medical
  268  conditions involved, would consider necessary in making an
  269  accurate determination of the probable postfertilization age of
  270  the unborn child.
  271         (d)When an abortion of an unborn child capable of feeling
  272  pain is necessary to prevent a serious health risk to the unborn
  273  child’s mother, the physician shall terminate the pregnancy
  274  through or by the method that, using reasonable medical
  275  judgment, provides the best opportunity for the unborn child to
  276  survive, unless, using reasonable medical judgment, termination
  277  of the pregnancy in that manner would pose a more serious health
  278  risk to the unborn child’s mother than would other available
  279  methods. Such a determination may not be made if the
  280  determination is based on a claim or diagnosis that the unborn
  281  child’s mother will engage in conduct that she intends to result
  282  in her death or in the substantial and irreversible physical
  283  impairment of one or more of her major bodily functions.
  284         (4) REPORTING.—
  285         (a)Beginning January 1, 2018, a physician who performs or
  286  induces, or attempts to perform or induce, an abortion shall
  287  report all of the following to the department on forms, and in
  288  accordance with schedules and other requirements, adopted by
  289  department rule:
  290         1.The probable postfertilization age of the unborn child
  291  and whether ultrasound was employed in making the determination,
  292  and, if a determination of probable postfertilization age was
  293  not made, the basis of the determination that a medical
  294  emergency existed;
  295         2.The method of abortion, including, but not limited to,
  296  one or more of the following, by or through which the abortion
  297  was performed or induced:
  298         a. Medication, including, but not limited to, an abortion
  299  induced by mifepristone/misoprostol or methotrexate/misoprostol;
  300         b. Manual vacuum aspiration;
  301         c. Electrical vacuum aspiration;
  302         d. Dilation and evacuation;
  303         e. Induction, combined with dilation and evacuation;
  304         f. Induction with prostaglandins;
  305         g. Induction with intra-amniotic instillation, including,
  306  but not limited to, saline or urea; or
  307         h. Intact dilation and extraction, otherwise known as
  308  partial-birth;
  309         3.Whether an intra-fetal injection, including, but not
  310  limited to, intra-fetal potassium chloride or digoxin, was used
  311  in an attempt to induce the death of the unborn child;
  312         4. The age and race of the unborn child’s mother;
  313         5.If the unborn child was deemed capable of experiencing
  314  pain under paragraph (3)(b), the basis of the determination that
  315  the pregnancy was a serious health risk to the unborn child’s
  316  mother; and
  317         6.If the unborn child was deemed capable of experiencing
  318  pain under paragraph (3)(b), whether the method of abortion used
  319  was the method that, using reasonable medical judgment, provided
  320  the best opportunity for the unborn child to survive and, if
  321  such method was not used, the basis of the determination that
  322  termination of the pregnancy using that method would pose a more
  323  serious health risk to the unborn child’s mother than would
  324  other available methods.
  325         (b)Reports required by paragraph (a) may not contain the
  326  name or the address of the woman whose pregnancy was terminated,
  327  and may not contain any other information identifying the woman
  328  whose pregnancy was terminated; however, each report must
  329  contain a unique medical record identification number that
  330  allows the report to be matched to the medical records of the
  331  woman whose pregnancy was terminated.
  332         (c)Beginning on June 30, 2018, and each June 30
  333  thereafter, the department shall publish in paper form and on
  334  its website a summary providing statistics for the previous
  335  calendar year compiled from all of the reports required by
  336  paragraph (a) for that year. The summary must provide a
  337  tabulation of data for all of the items required by paragraph
  338  (a) to be reported and include each of the summaries from all
  339  previous calendar years for which reports have been filed,
  340  adjusted to reflect any additional data from late-filed or
  341  corrected reports. The department shall ensure that the
  342  information included in the summary cannot reasonably lead to
  343  the identification of any pregnant woman upon whom an abortion
  344  was performed, induced, or attempted.
  345         (d)The department may assess a late fee of $1,000 for each
  346  30-day period or portion thereof that a report is overdue upon a
  347  physician who fails to submit a report required by this
  348  subsection by the end of the 30th day following the due date
  349  established by department rule. If, more than 6 months following
  350  the due date, a physician still has failed to submit such a
  351  report or has submitted an incomplete report, the department may
  352  bring an action against the physician requesting a court of
  353  competent jurisdiction to order the physician to submit a
  354  complete report within a specified timeframe or be subject to
  355  civil contempt. The intentional or reckless failure by a
  356  physician to comply with this section, other than the late
  357  filing of a report, or the intentional or reckless failure by a
  358  physician to submit a complete report in accordance with a court
  359  order, constitutes unprofessional conduct and is grounds for
  360  disciplinary action pursuant to s. 458.331 or s. 459.015, as
  361  applicable. A physician who intentionally or recklessly
  362  falsifies a report required under this section commits a
  363  misdemeanor of the first degree, punishable as provided in s.
  364  775.082 or s. 775.083.
  365         (5)RULEMAKING.—The department shall adopt rules, including
  366  forms for the reports required by subsection (4), as necessary
  367  to implement this section, by January 1, 2018.
  368         (6) CRIMINAL PENALTIES.—A person who intentionally or
  369  recklessly performs, or induces or attempts to perform or
  370  induce, an abortion in violation of this section commits a
  371  felony of the third degree, punishable as provided in s.
  372  775.082, s. 775.083, or s. 775.084. A penalty may not be
  373  assessed against the woman upon whom the abortion is performed
  374  or induced or upon whom an abortion is attempted to be performed
  375  or induced.
  376         (7) CIVIL AND CRIMINAL REMEDIES.—
  377         (a)A woman upon whom an abortion has been performed or
  378  induced in intentional or reckless violation of this section, or
  379  the father of an unborn child aborted in intentional or reckless
  380  violation of this section, may maintain a civil action for
  381  actual and punitive damages against the person who performed or
  382  induced the abortion. A woman upon whom an abortion has been
  383  attempted in intentional or reckless violation of this section
  384  may maintain a civil action for actual and punitive damages
  385  against the person who attempted to perform or induce the
  386  abortion.
  387         (b)An injunction may be obtained against a person who has
  388  intentionally or recklessly violated this section to prevent him
  389  or her from performing or inducing, or attempting to perform or
  390  induce, further abortions in violation of this section. A cause
  391  of action for injunctive relief against a person who has
  392  intentionally or recklessly violated this section may be
  393  maintained by one or more of the following:
  394         1. The woman upon whom an abortion was performed or
  395  induced, or upon whom an abortion was attempted to be performed
  396  or induced, in violation of this section;
  397         2. The spouse, parent, sibling, or guardian of, or a
  398  current or former licensed health care provider of, the woman
  399  upon whom an abortion was performed or induced, or upon whom an
  400  abortion was attempted to be performed or induced, in violation
  401  of this section;
  402         3. A state attorney with jurisdiction; or
  403         4. The Office of the Attorney General.
  404         (c) If a judgment is entered in favor of the plaintiff in
  405  an action brought under this section, the court shall award
  406  reasonable attorney fees to the plaintiff.
  407         (d)If a judgment is entered in favor of the defendant in
  408  an action brought under this section and the court finds that
  409  the plaintiff’s suit was frivolous and brought in bad faith, the
  410  court shall award reasonable attorney fees to the defendant.
  411         (e)Damages or attorney fees may not be assessed against a
  412  woman upon whom an abortion was performed or induced, or upon
  413  whom an abortion was attempted to be performed or induced,
  414  except in accordance with paragraph (d).
  415         (8) PROTECTION OF PRIVACY IN COURT PROCEEDINGS.—In each
  416  civil or criminal proceeding or action brought under this
  417  section, the court shall rule on whether the anonymity of a
  418  woman upon whom an abortion has been performed or induced, or
  419  upon whom an abortion has been attempted to be performed or
  420  induced, must be preserved from public disclosure if the woman
  421  does not give her consent to such disclosure. The court, upon
  422  its own motion or the motion of a party, shall make such a
  423  ruling and, if it determines that anonymity should be preserved,
  424  shall issue an order to preserve the woman’s anonymity to the
  425  parties, witnesses, and counsel and shall direct the sealing of
  426  the record and the exclusion of individuals from courtrooms or
  427  hearing rooms to the extent necessary to safeguard the woman’s
  428  identity from public disclosure. Each such order shall be
  429  accompanied by specific written findings explaining why the
  430  anonymity of the woman should be preserved; why the order is
  431  essential to that end; how the order is narrowly tailored to
  432  serve that interest; and why a reasonable, less restrictive
  433  alternative does not exist. In the absence of the written
  434  consent of the woman upon whom an abortion has been performed or
  435  induced or upon whom an abortion has been attempted to be
  436  performed or induced, anyone, other than a public official, who
  437  brings an action under paragraph (7)(a) or paragraph (7)(b)
  438  shall do so under a pseudonym. This section may not be construed
  439  to conceal the identity of the plaintiff or any witness from the
  440  defendant or from attorneys for the defendant.
  441         (9) LITIGATION DEFENSE FUND.—
  442         (a) A special revenue account known as the Florida Pain
  443  Capable Unborn Child Protection Act Litigation Account is
  444  created in the Operating Trust Fund within the Department of
  445  Legal Affairs for the purpose of providing funds to pay costs
  446  and expenses incurred by the Attorney General in relation to
  447  actions taken to defend this act.
  448         (b)The account shall:
  449         1. Be administered by the Department of Legal Affairs;
  450         2.Consist of any appropriations made to the account by the
  451  Legislature and any private donations, gifts, or grants made to
  452  the account; and
  453         3.Retain any interest income derived.
  454         (10) CONSTRUCTION.—This section may not be construed to
  455  repeal, by implication or otherwise, s. 390.01112 or any other
  456  applicable provision of state law regulating or restricting
  457  abortion. An abortion that complies with this section but
  458  violates s. 390.01112 or any other applicable provision of state
  459  law shall be deemed unlawful. An abortion that complies with s.
  460  390.01112 or any other state law regulating or restricting
  461  abortion but violates this section shall be deemed unlawful. If
  462  this act, or any portion thereof, is temporarily or permanently
  463  restrained or enjoined by judicial order, all other state laws
  464  regulating or restricting abortion shall be enforced as though
  465  the restrained or enjoined provisions had not been adopted;
  466  however, if such temporary or permanent restraining order or
  467  injunction is stayed or dissolved or otherwise ceases to have
  468  effect, such provisions shall have full force and effect.
  469         Section 2. This act shall take effect July 1, 2017.