Florida Senate - 2019 SB 558 By Senator Gruters 23-00400-19 2019558__ 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 the identity of a woman on whom an abortion 36 is performed or induced or on whom an abortion is 37 attempted to be performed or induced; requiring that 38 certain actions be brought under a pseudonym; creating 39 a special revenue account to pay for certain costs and 40 expenses incurred by the state in defending the act; 41 providing for funding and retention of interest; 42 providing construction and severability; providing an 43 effective date. 44 45 WHEREAS, pain receptors are present throughout an unborn 46 child’s entire body no later than 16 weeks after fertilization, 47 and nerves link these receptors to the brain’s thalamus and 48 subcortical plate by no later than 20 weeks after fertilization, 49 and 50 WHEREAS, an unborn child reacts to touch by 8 weeks after 51 fertilization, and 52 WHEREAS, 20 weeks after fertilization, an unborn child 53 reacts to stimuli that would be recognized as painful if applied 54 to an adult human, by recoiling or exhibiting other avoidance 55 responses, and 56 WHEREAS, the application of painful stimuli to an unborn 57 child is associated with significant increases in stress 58 hormones in the unborn child, known as the stress response, and 59 WHEREAS, subjection to painful stimuli is associated with 60 long-term harmful neurodevelopmental effects, such as altered 61 pain sensitivity and, possibly, emotional, behavioral, and 62 learning disabilities later in life, and 63 WHEREAS, for purposes of surgery on unborn children, fetal 64 anesthesia is routinely administered and is associated with a 65 decrease in stress hormones compared to their level when painful 66 stimuli are applied without anesthesia, and 67 WHEREAS, the assertion by some medical experts that an 68 unborn child is incapable of experiencing pain until later than 69 20 weeks after fertilization predominately rests on the 70 assumption that the ability to experience pain depends on the 71 cerebral cortex and requires nerve connections between the 72 thalamus and the cerebral cortex, and 73 WHEREAS, recent medical research and analysis, especially 74 since 2007, provide strong support for the conclusion that a 75 functioning cerebral cortex is not necessary to experience pain, 76 and 77 WHEREAS, substantial evidence indicates that children born 78 missing most of the cerebral cortex, a condition known as 79 hydranencephaly, nevertheless experience pain, and 80 WHEREAS, in adults, stimulation or ablation of the cerebral 81 cortex does not alter pain perception, while stimulation or 82 ablation of the thalamus does, and 83 WHEREAS, substantial evidence indicates that neural 84 elements, such as the subcortical plate, develop at specific 85 times during the early development of an unborn child, serve as 86 pain-processing structures, and are different from the neural 87 elements used for pain processing by adults, and 88 WHEREAS, the assertion of some medical experts that an 89 unborn child remains in a coma-like sleep state that precludes 90 it from experiencing pain is inconsistent with the documented 91 reaction of unborn children to painful stimuli and with the 92 experience of fetal surgeons who have found it necessary to 93 sedate an unborn child with anesthesia to prevent it from 94 thrashing about in reaction to invasive surgery, and 95 WHEREAS, the Florida Legislature has the constitutional 96 authority to make the judgment that there is substantial medical 97 evidence that an unborn child is capable of experiencing pain as 98 soon as 20 weeks after fertilization, and 99 WHEREAS, the United States Supreme Court has noted, in 100 Gonzales v. Carhart, 550 U.S. 124, 162-164 (2007), that “the 101 Court has given state and federal legislatures wide discretion 102 to pass legislation in areas where there is medical and 103 scientific uncertainty,” that “the law need not give abortion 104 doctors unfettered choice in the course of their medical 105 practice, nor should it elevate their status above other 106 physicians in the medical community,” and that “medical 107 uncertainty does not foreclose the exercise of legislative power 108 in the abortion context any more than it does in other 109 contexts,” and 110 WHEREAS, in Marshall v. United States, 414 U.S. 417, 427 111 (1974) the United States Supreme Court stated that “when 112 Congress undertakes to act in areas fraught with medical and 113 scientific uncertainties, legislative options must be especially 114 broad,” and 115 WHEREAS, the State of Florida asserts a compelling state 116 interest in protecting the lives of unborn children beginning at 117 the stage in their development at which substantial medical 118 evidence indicates that they are capable of feeling pain, and 119 WHEREAS, in enacting this legislation, the State of Florida 120 is not asking the United States Supreme Court to overturn or 121 revise its holding, first articulated in Roe v. Wade and 122 reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. 123 Casey, 505 U.S. 833, 869 (1992), that the state interest in 124 unborn human life, which is “legitimate” throughout pregnancy, 125 becomes “compelling” at the point of fetal viability, but, 126 rather, it asserts a separate and independent state interest in 127 unborn human life which becomes compelling once an unborn child 128 is capable of feeling pain, which is asserted not instead of, 129 but in addition to, the State of Florida’s compelling state 130 interest in protecting the lives of unborn children beginning at 131 viability, and 132 WHEREAS, the United States Supreme Court, in Planned 133 Parenthood of Southeastern Pennsylvania v. Casey, established 134 that the “constitutional liberty of the woman to have some 135 freedom to terminate her pregnancy . . . is not so unlimited . . 136 . that from the outset the State cannot show its concern for the 137 life of the unborn, and at a later point in fetal development 138 the State’s interest in life has sufficient force so that the 139 right of the woman to terminate the pregnancy can be 140 restricted,” and 141 WHEREAS, the United States Supreme Court decision upholding 142 the federal Partial Birth Abortion Act in Gonzales v. Carhart, 143 550 U.S. 124 (2007) vindicated the dissenting opinion in the 144 earlier decision in Stenberg v. Carhart, 530 U.S. 914, 958-959 145 (2000) (Kennedy, J., dissenting), which had struck down a 146 Nebraska law banning partial-birth abortions, and 147 WHEREAS, the dissenting opinion in Stenberg v. Carhart 148 stated that “we held [in Casey] it was inappropriate for the 149 Judicial Branch to provide an exhaustive list of state interests 150 implicated by abortion,” that “Casey is premised on the States 151 having an important constitutional role in defining their 152 interests in the abortion debate,” that “it is only with this 153 principle in mind that [a state’s] interests can be given proper 154 weight,” that “States also have an interest in forbidding 155 medical procedures which, in the State’s reasonable 156 determination, might cause the medical profession or society as 157 a whole to become insensitive, even disdainful, to life, 158 including life in the human fetus,” and that “a State may take 159 measures to ensure the medical profession and its members are 160 viewed as healers, sustained by a compassionate and rigorous 161 ethic and cognizant of the dignity and value of human life, even 162 life which cannot survive without the assistance of others,” and 163 WHEREAS, mindful of Leavitt v. Jane L., 518 U.S. 137 164 (1996), in which, in the context of determining the severability 165 of a state statute regulating abortion, the United States 166 Supreme Court noted that an explicit statement of legislative 167 intent specifically made applicable to a particular statute is 168 of greater weight than a general savings or severability clause, 169 the Legislature intends that if any one or more provisions, 170 sections, subsections, sentences, clauses, phrases, or words of 171 this act or the application thereof to any person or 172 circumstance is found to be unconstitutional, the same is hereby 173 declared to be severable, and the balance of the act shall 174 remain effective notwithstanding such unconstitutionality, and 175 WHEREAS, the Legislature of the State of Florida declares, 176 moreover, that it would have passed this act, and each 177 provision, section, subsection, sentence, clause, phrase, or 178 word thereof, irrespective of the fact that any one or more 179 provisions, sections, subsections, sentences, clauses, phrases, 180 or words, or any of their applications, were to be declared 181 unconstitutional, NOW, THEREFORE, 182 183 Be It Enacted by the Legislature of the State of Florida: 184 185 Section 1. Section 390.301, Florida Statutes, is created to 186 read: 187 390.301 Florida Pain-Capable Unborn Child Protection Act.— 188 (1) SHORT TITLE.—This act may be cited as the “Florida 189 Pain-Capable Unborn Child Protection Act.” 190 (2) DEFINITIONS.—As used in this section, the term: 191 (a) “Abortion” means the use or prescription of any 192 instrument, medicine, or drug, or any other substance or device, 193 to intentionally kill the unborn child of a woman known to be 194 pregnant or to intentionally terminate the pregnancy of a woman 195 known to be pregnant with a purpose other than to produce a live 196 birth and preserve the life and health of the child born alive 197 or to remove a dead unborn child. 198 (b) “Attempt to perform or induce an abortion” means an 199 act, or an omission of a statutorily required act, which, under 200 the circumstances as perceived by the actor, constitutes a 201 substantial step in a course of conduct planned to culminate in 202 the performance or induction of an abortion in this state in 203 violation of this section. 204 (c) “Fertilization” means the fusion of a human sperm with 205 a human egg. 206 (d) “Medical emergency” means a determination, using 207 reasonable medical judgment, that the pregnant woman’s medical 208 condition necessitates the immediate abortion of an unborn child 209 before determining the postfertilization age of the unborn child 210 in order to avert the pregnant woman’s death or a serious risk 211 to the pregnant woman of a substantial and irreversible physical 212 impairment of one or more of her major bodily functions, not 213 including psychological or emotional conditions, which may 214 result from the delay necessary to determine the 215 postfertilization age of the unborn child. A condition may not 216 be determined to be a medical emergency if it is based on a 217 claim or diagnosis that the pregnant woman will engage in 218 conduct that she intends to result in her death or in a 219 substantial and irreversible physical impairment of one or more 220 of her major bodily functions. 221 (e) “Postfertilization age” means the age of the unborn 222 child as calculated from the time of fusion of the human sperm 223 with the human egg. 224 (f) “Probable postfertilization age of the unborn child” 225 means the postfertilization age, in weeks, of the unborn child 226 at the time the abortion of the unborn child is planned to be 227 performed or induced as determined through the use of reasonable 228 medical judgment. 229 (g) “Serious health risk to the unborn child’s mother” 230 means that the unborn child’s mother is at risk of death or a 231 substantial and irreversible physical impairment of one or more 232 of her major bodily functions, not including psychological or 233 emotional conditions, due to her pregnancy as determined through 234 the use of reasonable medical judgment. Such a determination may 235 not be made if it is based on a claim or diagnosis that the 236 unborn child’s mother will engage in conduct that she intends to 237 result in her death or in the substantial and irreversible 238 physical impairment of one or more of her major bodily 239 functions. 240 (h) “Unborn child” or “fetus” means an individual organism 241 of the species Homo sapiens from fertilization until live birth. 242 (i) “Unborn child’s mother” means a pregnant woman of the 243 species Homo sapiens regardless of age. 244 (3) PROTECTION FROM ABORTION OF AN UNBORN CHILD CAPABLE OF 245 FEELING PAIN.— 246 (a) A person may not perform or induce, or attempt to 247 perform or induce, the abortion of an unborn child capable of 248 feeling pain unless it is necessary to prevent a serious health 249 risk to the unborn child’s mother. 250 (b) An unborn child shall be deemed capable of feeling pain 251 if it has been determined by the physician performing or 252 inducing, or attempting to perform or induce, an abortion of the 253 unborn child, or by another physician upon whose determination 254 such physician relies, that the probable postfertilization age 255 of the unborn child is 20 or more weeks. For purposes of this 256 subsection, a dead unborn child is not capable of feeling pain. 257 (c) Except in a medical emergency or in the removal of a 258 dead unborn child, an abortion may not be performed or induced, 259 or be attempted to be performed or induced, unless the physician 260 performing or inducing, or attempting to perform or induce, the 261 abortion has first made a determination of the probable 262 postfertilization age of the unborn child or relied upon such a 263 determination made by another physician. In making this 264 determination, the physician shall inquire of the unborn child’s 265 mother and perform or cause to be performed such medical 266 examinations and tests as a reasonably prudent physician, 267 knowledgeable about the case and the medical conditions 268 involved, would consider necessary in making an accurate 269 determination of the probable postfertilization age of the 270 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, 2020, 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 or a determination that the unborn child was 295 dead; 296 2. The method of abortion, including, but not limited to, 297 one or more of the following, by or through which the abortion 298 was performed or induced: 299 a. Medication, including, but not limited to, an abortion 300 induced by mifepristone/misoprostol or methotrexate/misoprostol; 301 b. Manual vacuum aspiration; 302 c. Electrical vacuum aspiration; 303 d. Dilation and evacuation; 304 e. Induction, combined with dilation and evacuation; 305 f. Induction with prostaglandins; 306 g. Induction with intra-amniotic instillation, including, 307 but not limited to, saline or urea; or 308 h. Intact dilation and extraction, otherwise known as 309 partial-birth; 310 3. Whether an intra-fetal injection, including, but not 311 limited to, intra-fetal potassium chloride or digoxin, was used 312 in an attempt to induce the death of the unborn child; 313 4. The age and race of the unborn child’s mother; 314 5. If the unborn child was deemed capable of experiencing 315 pain under paragraph (3)(b), the basis of the determination that 316 the pregnancy was a serious health risk to the unborn child’s 317 mother; and 318 6. If the unborn child was deemed capable of experiencing 319 pain under paragraph (3)(b), whether the method of abortion used 320 was the method that, using reasonable medical judgment, provided 321 the best opportunity for the unborn child to survive and, if 322 such method was not used, the basis of the determination that 323 termination of the pregnancy using that method would pose a more 324 serious health risk to the unborn child’s mother than would 325 other available methods. 326 (b) Reports required by paragraph (a) may not contain the 327 name or the address of the woman whose pregnancy was terminated 328 and may not contain any other information identifying the woman 329 whose pregnancy was terminated; however, each report must 330 contain a unique medical record identification number that 331 allows the report to be matched to the medical records of the 332 woman whose pregnancy was terminated. 333 (c) Beginning on June 30, 2020, and each June 30 334 thereafter, the department shall publish in paper form and on 335 its website a summary providing statistics for the previous 336 calendar year compiled from all of the reports required by 337 paragraph (a) for that year. The summary must provide a 338 tabulation of data for all of the items required by paragraph 339 (a) to be reported and include each of the summaries from all 340 previous calendar years for which reports have been filed, 341 adjusted to reflect any additional data from late-filed reports 342 or corrected reports. The department shall ensure that the 343 information included in the summary cannot reasonably lead to 344 the identification of any pregnant woman upon whom an abortion 345 was performed, induced, or attempted. 346 (d) The department may assess upon a physician who fails to 347 submit a report required by this subsection by the end of the 348 30th day following the due date established by department rule a 349 late penalty of $1,000 for each 30-day period or portion thereof 350 that a report is overdue. If, more than 6 months following the 351 due date, a physician still has failed to submit such a report 352 or has submitted an incomplete report, the department may bring 353 an action against the physician requesting a court of competent 354 jurisdiction to order the physician to submit a complete report 355 within a specified timeframe or be subject to civil contempt. 356 The intentional or reckless failure by a physician to comply 357 with this section, other than the late filing of a report, or 358 the intentional or reckless failure by a physician to submit a 359 complete report in accordance with a court order, constitutes 360 unprofessional conduct and is grounds for disciplinary action 361 pursuant to s. 458.331 or s. 459.015, as applicable. A physician 362 who intentionally or recklessly falsifies a report required 363 under this section commits a misdemeanor of the first degree, 364 punishable as provided in s. 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, 2020. 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 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, 2019.