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.