Florida Senate - 2021 SB 744
By Senator Rodriguez
39-01015-21 2021744__
1 A bill to be entitled
2 An act relating to the protection of a pain-capable
3 unborn child from abortion; amending s. 390.011, F.S.;
4 revising the definition of the terms “gestation” and
5 “trimester”; creating s. 390.301, F.S.; providing a
6 short title; defining terms; providing legislative
7 findings; prohibiting the attempted or actual
8 performance or induction of an abortion in certain
9 circumstances; providing a parameter for determining
10 the applicability of the prohibition; requiring
11 physicians to make a specified determination before
12 performing or inducing or attempting to perform or
13 induce abortions; requiring physicians performing or
14 inducing abortions to determine the probable
15 gestational age of the unborn child; providing an
16 exception; requiring physicians to use an abortion
17 method that provides the best opportunity for the
18 unborn child to survive the abortion in specified
19 circumstances; beginning on a specified date,
20 requiring certain physicians to report specified
21 information, including specified data, to the
22 Department of Health; prohibiting such reports from
23 including information that would identify the women
24 whose pregnancies were terminated; requiring such
25 reports to include unique medical record
26 identification numbers; beginning on a specified date,
27 requiring the department to publish a summary of data
28 from the physician reports on an annual basis;
29 providing requirements for such summary; requiring the
30 department to safeguard the information included in
31 such summary; providing penalties for failure to
32 timely submit physician reports; providing for
33 disciplinary action; requiring the department to adopt
34 rules; providing criminal penalties and civil and
35 criminal remedies; providing for attorney fees;
36 requiring courts to rule on the protection of certain
37 identifying information in certain civil and criminal
38 proceedings or actions; requiring that certain actions
39 be brought under a pseudonym; providing construction
40 and severability; providing an effective date.
41
42 WHEREAS, pain receptors are present throughout an unborn
43 child’s entire body no later than 16 weeks probable gestational
44 age, and nerves link these receptors to the brain’s thalamus and
45 subcortical plate by no later than 20 weeks probable gestational
46 age, and
47 WHEREAS, an unborn child reacts to touch by 8 weeks
48 probable gestational age, and
49 WHEREAS, by 20 weeks probable gestational age, an unborn
50 child reacts to stimuli that would be recognized as painful if
51 applied to an adult human, by recoiling or exhibiting other
52 avoidance responses, and
53 WHEREAS, the application of painful stimuli to an unborn
54 child is associated with significant increases in stress
55 hormones in the unborn child, known as the stress response, and
56 WHEREAS, subjection to painful stimuli is associated with
57 long-term harmful neurodevelopmental effects, such as altered
58 pain sensitivity and, possibly, emotional, behavioral, and
59 learning disabilities later in life, and
60 WHEREAS, for purposes of surgery on unborn children, fetal
61 anesthesia is routinely administered and is associated with a
62 decrease in stress hormones compared to their level when painful
63 stimuli are applied without anesthesia, and
64 WHEREAS, the assertion by some medical experts that an
65 unborn child is incapable of experiencing pain until after 20
66 weeks probable gestational age predominately rests on the
67 assumption that the ability to experience pain depends on the
68 cerebral cortex and requires nerve connections between the
69 thalamus and the cerebral cortex, and
70 WHEREAS, recent medical research and analysis, especially
71 since 2007, provide strong support for the conclusion that a
72 functioning cerebral cortex is not necessary to experience pain,
73 and
74 WHEREAS, substantial evidence indicates that children born
75 missing most of the cerebral cortex, a condition known as
76 hydranencephaly, nevertheless experience pain, and
77 WHEREAS, in adults, stimulation or ablation of the cerebral
78 cortex does not alter pain perception, while stimulation or
79 ablation of the thalamus does, and
80 WHEREAS, substantial evidence indicates that neural
81 elements, such as the subcortical plate, which develop at
82 specific times during the early development of an unborn child,
83 serve as pain-processing structures and are different from the
84 neural elements used for pain processing by adults, and
85 WHEREAS, the assertion of some medical experts that an
86 unborn child remains in a coma-like sleep state that precludes
87 it from experiencing pain is inconsistent with the documented
88 reaction of unborn children to painful stimuli and with the
89 experience of fetal surgeons who have found it necessary to
90 sedate an unborn child with anesthesia to prevent it from
91 thrashing about in reaction to invasive surgery, and
92 WHEREAS, the Florida Legislature has the constitutional
93 authority to make the judgment that there is substantial medical
94 evidence that an unborn child is capable of experiencing pain as
95 early as 20 weeks probable gestational age, and
96 WHEREAS, the United States Supreme Court has noted, in
97 Gonzales v. Carhart, 550 U.S. 124, 162-164 (2007), that “the
98 Court has given state and federal legislatures wide discretion
99 to pass legislation in areas where there is medical and
100 scientific uncertainty,” that “the law need not give abortion
101 doctors unfettered choice in the course of their medical
102 practice, nor should it elevate their status above other
103 physicians in the medical community,” and that “medical
104 uncertainty does not foreclose the exercise of legislative power
105 in the abortion context any more than it does in other
106 contexts,” and
107 WHEREAS, in Marshall v. United States, 414 U.S. 417, 427
108 (1974) the United States Supreme Court stated that “when
109 Congress undertakes to act in areas fraught with medical and
110 scientific uncertainties, legislative options must be especially
111 broad . . .,” and
112 WHEREAS, the State of Florida asserts a compelling state
113 interest in protecting the lives of unborn children beginning at
114 the stage in their development at which substantial medical
115 evidence indicates that they are capable of feeling pain, and
116 WHEREAS, in enacting this legislation, the State of Florida
117 is not asking the United States Supreme Court to overturn or
118 revise its holding, first articulated in Roe v. Wade and
119 reaffirmed in Planned Parenthood of Southeastern Pennsylvania v.
120 Casey, 505 U.S. 833, 869 (1992), that the state interest in
121 unborn human life, which is “legitimate” throughout pregnancy,
122 becomes “compelling” at the point of fetal viability, but,
123 rather, it is asserting a separate and independent state
124 interest in unborn human life which becomes compelling once an
125 unborn child is capable of feeling pain, which is asserted not
126 instead of, but in addition to, the State of Florida’s
127 compelling state interest in protecting the lives of unborn
128 children beginning at viability, and
129 WHEREAS, the United States Supreme Court, in Planned
130 Parenthood of Southeastern Pennsylvania v. Casey, established
131 that the “constitutional liberty of the woman to have some
132 freedom to terminate her pregnancy . . . is not so unlimited . .
133 . that from the outset the State cannot show its concern for the
134 life of the unborn, and at a later point in fetal development
135 the State’s interest in life has sufficient force so that the
136 right of the woman to terminate the pregnancy can be
137 restricted,” and
138 WHEREAS, the United States Supreme Court decision upholding
139 the federal Partial-Birth Abortion Ban Act in Gonzales v.
140 Carhart, 550 U.S. 124 (2007) vindicated the dissenting opinion
141 in the earlier decision in Stenberg v. Carhart, 530 U.S. 914,
142 958-959 (2000) (Kennedy, J., dissenting), which had struck down
143 a Nebraska law banning partial-birth abortions, and
144 WHEREAS, the dissenting opinion in Stenberg v. Carhart
145 stated that “we held [in Casey] it was inappropriate for the
146 Judicial Branch to provide an exhaustive list of state interests
147 implicated by abortion,” that “Casey is premised on the States
148 having an important constitutional role in defining their
149 interests in the abortion debate,” that “it is only with this
150 principle in mind that [a state’s] interests can be given proper
151 weight,” that “States also have an interest in forbidding
152 medical procedures which, in the State’s reasonable
153 determination, might cause the medical profession or society as
154 a whole to become insensitive, even disdainful, to life,
155 including life in the human fetus,” and that “a State may take
156 measures to ensure the medical profession and its members are
157 viewed as healers, sustained by a compassionate and rigorous
158 ethic and cognizant of the dignity and value of human life, even
159 life which cannot survive without the assistance of others,” and
160 WHEREAS, mindful of Leavitt v. Jane L., 518 U.S. 137
161 (1996), in which, in the context of determining the severability
162 of a state statute regulating abortion, the United States
163 Supreme Court noted that an explicit statement of legislative
164 intent specifically made applicable to a particular statute is
165 of greater weight than a general savings or severability clause,
166 the Legislature intends that if any one or more provisions,
167 sections, subsections, sentences, clauses, phrases, or words of
168 this act or the application thereof to any person or
169 circumstance is found to be unconstitutional, the same is hereby
170 declared to be severable, and the balance of the act shall
171 remain effective notwithstanding such unconstitutionality, and
172 WHEREAS, the Legislature of the State of Florida declares,
173 moreover, that it would have passed this act, and each
174 provision, section, subsection, sentence, clause, phrase, or
175 word thereof, irrespective of the fact that any one or more
176 provisions, sections, subsections, sentences, clauses, phrases,
177 or words, or any of their applications, were to be declared
178 unconstitutional, NOW, THEREFORE,
179
180 Be It Enacted by the Legislature of the State of Florida:
181
182 Section 1. Subsection (6) and paragraph (a) of subsection
183 (12) of section 390.011, Florida Statutes, are amended to read:
184 390.011 Definitions.—As used in this chapter, the term:
185 (6) “Gestation” means the development of a human embryo or
186 fetus between the beginning of the pregnant woman’s last
187 menstrual period fertilization and birth.
188 (12) “Trimester” means one of the following three distinct
189 periods of time in the duration of a pregnancy:
190 (a) “First trimester,” which is the period of time from the
191 beginning of the pregnant woman’s last menstrual period
192 fertilization through the end of the 11th week of gestation.
193 Section 2. Section 390.301, Florida Statutes, is created to
194 read:
195 390.301 Florida Pain-Capable Unborn Child Protection Act.—
196 (1) SHORT TITLE.—This act may be cited as the “Florida
197 Pain-Capable Unborn Child Protection Act.”
198 (2) DEFINITIONS.—As used in this section, the term:
199 (a) “Abortion” means the use or prescription of an
200 instrument, medicine, drug, or any other substance or device to
201 intentionally kill the unborn child of a woman known to be
202 pregnant or to intentionally terminate the pregnancy of a woman
203 known to be pregnant with a purpose other than to produce a live
204 birth and preserve the life and health of the child born alive
205 or to remove a dead unborn child.
206 (b) “Attempt to perform or induce an abortion” or
207 “attempting to perform or induce an abortion” means an act, or
208 an omission of a statutorily required act, which, under the
209 circumstances as perceived by the actor, constitutes a
210 substantial step in a course of conduct planned to culminate in
211 the performance or induction of an abortion in this state in
212 violation of this section.
213 (c) “Medical emergency” means a determination, using
214 reasonable medical judgment, that the pregnant woman’s medical
215 condition necessitates the immediate abortion of an unborn child
216 before determining the probable gestational age of the unborn
217 child in order to avert the pregnant woman’s death or a serious
218 risk to the pregnant woman of a substantial and irreversible
219 physical impairment of one or more of her major bodily
220 functions, not including psychological or emotional conditions,
221 which may result from the delay necessary to determine the
222 probable gestational age of the unborn child. A condition may
223 not be determined to be a medical emergency if it is based on a
224 claim or diagnosis that the pregnant woman will engage in
225 conduct that she intends to result in her death or in a
226 substantial and irreversible physical impairment of one or more
227 of her major bodily functions.
228 (d) “Probable gestational age of the unborn child” means
229 the gestational age, in weeks, of the unborn child at the time
230 the abortion of the unborn child is to be performed or induced
231 as determined from the beginning of the pregnant woman’s last
232 menstrual period.
233 (e) “Serious health risk to the unborn child’s mother”
234 means that the unborn child’s mother is at risk of death or a
235 substantial and irreversible physical impairment of one or more
236 of her major bodily functions, not including psychological or
237 emotional conditions, due to her pregnancy as determined through
238 the use of reasonable medical judgment. Such a determination may
239 not be made if it is based on a claim or diagnosis that the
240 unborn child’s mother will engage in conduct that she intends to
241 result in her death or in the substantial and irreversible
242 physical impairment of one or more of her major bodily
243 functions.
244 (f) “Unborn child’s mother” means a pregnant woman of the
245 species Homo sapiens, regardless of age.
246 (3) PROTECTION FROM ABORTION OF AN UNBORN CHILD CAPABLE OF
247 FEELING PAIN.—
248 (a) The Legislature finds that there is a compelling state
249 interest in protecting the lives of unborn children from the
250 stage at which substantial medical evidence indicates that such
251 unborn children are capable of feeling pain. Such compelling
252 interest is separate from and independent of this state’s
253 compelling interest in protecting the lives of unborn children
254 from the stage of viability, and neither compelling interest is
255 intended to replace the other.
256 (b) A person may not perform or induce, or attempt to
257 perform or induce, an abortion of an unborn child capable of
258 feeling pain unless it is necessary to prevent a serious health
259 risk to the unborn child’s mother.
260 (c) An unborn child is deemed capable of feeling pain if it
261 has been determined by the physician performing or inducing, or
262 attempting to perform or induce, an abortion of the unborn
263 child, or by another physician upon whose determination such
264 physician relies, that the probable gestational age of the
265 unborn child is 20 or more weeks. For purposes of this
266 subsection, a dead unborn child is not capable of feeling pain.
267 (d) Except in a medical emergency or in the removal of a
268 dead unborn child, an abortion may not be performed or induced,
269 or be attempted to be performed or induced, unless the physician
270 performing or inducing, or attempting to perform or induce, the
271 abortion has first made a determination of the probable
272 gestational age of the unborn child or relied upon such a
273 determination made by another physician. In making this
274 determination, the physician shall inquire of the unborn child’s
275 mother and perform or cause to be performed such medical
276 examinations and tests as a reasonably prudent physician,
277 knowledgeable about the case and the medical conditions
278 involved, would consider necessary in making an accurate
279 determination of the probable gestational age of the unborn
280 child.
281 (e) When an abortion of an unborn child capable of feeling
282 pain is necessary to prevent a serious health risk to the unborn
283 child’s mother, the physician shall terminate the pregnancy
284 through or by the method that, using reasonable medical
285 judgment, provides the best opportunity for the unborn child to
286 survive, unless, using reasonable medical judgment, termination
287 of the pregnancy in that manner would pose a more serious health
288 risk to the unborn child’s mother than would other available
289 methods. Such a determination may not be made if the
290 determination is based on a claim or diagnosis that the unborn
291 child’s mother will engage in conduct that she intends to result
292 in her death or in the substantial and irreversible physical
293 impairment of one or more of her major bodily functions.
294 (4) REPORTING.—
295 (a) Beginning January 1, 2022, a physician who performs or
296 induces, or attempts to perform or induce, an abortion shall
297 report all of the following to the department on forms, and in
298 accordance with schedules and other requirements, adopted by
299 department rule:
300 1. The probable gestational age of the unborn child and
301 whether an ultrasound was employed in making the determination
302 and, if a determination of probable gestational age was not
303 made, the basis of the determination that a medical emergency
304 existed or a determination that the unborn child was dead;
305 2. The method of abortion, including, but not limited to,
306 one or more of the following, by or through which the abortion
307 was performed or induced:
308 a. Medication, including, but not limited to, an abortion
309 induced by mifepristone/misoprostol or methotrexate/misoprostol;
310 b. Manual vacuum aspiration;
311 c. Electrical vacuum aspiration;
312 d. Dilation and evacuation;
313 e. Induction, combined with dilation and evacuation;
314 f. Induction with prostaglandins;
315 g. Induction with intra-amniotic instillation, including,
316 but not limited to, saline or urea; or
317 h. Intact dilation and extraction, otherwise known as
318 partial birth;
319 3. Whether an intra-fetal injection, including, but not
320 limited to, intra-fetal potassium chloride or digoxin, was used
321 in an attempt to induce the death of the unborn child;
322 4. The age and race of the unborn child’s mother;
323 5. If the unborn child was deemed capable of experiencing
324 pain under paragraph (3)(c), the basis of the determination that
325 the pregnancy was a serious health risk to the unborn child’s
326 mother; and
327 6. If the unborn child was deemed capable of experiencing
328 pain under paragraph (3)(c), whether the method of abortion used
329 was the method that, using reasonable medical judgment, provided
330 the best opportunity for the unborn child to survive and, if
331 such method was not used, the basis of the determination that
332 termination of the pregnancy using that method would pose a more
333 serious health risk to the unborn child’s mother than would
334 other available methods.
335 (b) A report required by paragraph (a) may not contain the
336 name or the address of the woman whose pregnancy was terminated
337 and may not contain any other information identifying the woman
338 whose pregnancy was terminated; however, each report must
339 contain a unique medical record identification number that
340 allows the report to be matched to the medical records of the
341 woman whose pregnancy was terminated.
342 (c) Beginning on June 30, 2022, and each June 30
343 thereafter, the department shall publish, in paper form and on
344 its website, a summary providing statistics for the previous
345 calendar year compiled from all of the reports made pursuant to
346 paragraph (a) for that year. The summary must provide a
347 tabulation of data for all of the items required by paragraph
348 (a) to be reported and include each of the summaries from all
349 previous calendar years for which reports have been filed,
350 adjusted to reflect any additional data from late-filed reports
351 or corrected reports. All reports must include the name of the
352 physician who performs or induces, or attempts to perform or
353 induce, the abortion and the name of the facility in which the
354 abortion was performed, induced, or attempted to be performed or
355 induced. The department shall ensure that the information
356 included in the summary cannot reasonably lead to the
357 identification of a pregnant woman upon whom an abortion was
358 performed, induced, or attempted.
359 (d) The department may assess upon a physician who fails to
360 submit a report required by this subsection by the end of the
361 30th day after the due date established by department rule a
362 late penalty of $1,000 for each 30-day period or portion thereof
363 that a report is overdue. If a physician has failed to submit
364 such a report or has submitted an incomplete report more than 6
365 months after the due date, the department may bring an action
366 against the physician requesting a court of competent
367 jurisdiction to order the physician to submit a complete report
368 within a specified timeframe or be subject to civil contempt.
369 The intentional or reckless failure by a physician to comply
370 with this section, other than the late filing of a report or the
371 intentional or reckless failure by a physician to submit a
372 complete report in accordance with a court order, constitutes
373 unprofessional conduct and is grounds for disciplinary action
374 pursuant to s. 458.331 or s. 459.015, as applicable. A physician
375 who intentionally or recklessly falsifies a report required
376 under this section commits a misdemeanor of the first degree,
377 punishable as provided in s. 775.082 or s. 775.083.
378 (5) RULEMAKING.—The department shall adopt rules, including
379 forms for the reports required under subsection (4), as
380 necessary to implement this section, by January 1, 2022.
381 (6) CRIMINAL PENALTIES.—A person who intentionally or
382 recklessly performs or induces, or attempts to perform or
383 induce, an abortion in violation of this section commits a
384 felony of the third degree, punishable as provided in s.
385 775.082, s. 775.083, or s. 775.084. A penalty may not be
386 assessed against the woman upon whom an abortion is performed or
387 induced or upon whom an abortion is attempted to be performed or
388 induced.
389 (7) CIVIL REMEDIES.—
390 (a) A woman upon whom an abortion has been performed or
391 induced in intentional or reckless violation of this section, or
392 the father of an unborn child aborted in intentional or reckless
393 violation of this section, may maintain a civil action for
394 actual and punitive damages against the person who performed or
395 induced the abortion. A woman upon whom an abortion has been
396 attempted in intentional or reckless violation of this section
397 may maintain a civil action for actual and punitive damages
398 against the person who attempted to perform or induce the
399 abortion.
400 (b) An injunction may be obtained against a person who has
401 intentionally or recklessly violated this section to prevent him
402 or her from performing or inducing, or attempting to perform or
403 induce, further abortions in violation of this section. A cause
404 of action for injunctive relief against a person who has
405 intentionally or recklessly violated this section may be
406 maintained by one or more of the following:
407 1. The woman upon whom an abortion was performed or
408 induced, or upon whom an abortion was attempted to be performed
409 or induced, in violation of this section;
410 2. The spouse, parent, sibling, or guardian of, or a
411 current or former licensed health care provider of, the woman
412 upon whom an abortion was performed or induced, or upon whom an
413 abortion was attempted to be performed or induced, in violation
414 of this section;
415 3. A state attorney with appropriate jurisdiction; or
416 4. The Office of the Attorney General.
417 (c) If a judgment is entered in favor of the plaintiff in
418 an action brought under this section, the court shall award
419 reasonable attorney fees to the plaintiff.
420 (d) If a judgment is entered in favor of the defendant in
421 an action brought under this section and the court finds that
422 the plaintiff’s suit was frivolous and brought in bad faith, the
423 court shall award reasonable attorney fees to the defendant.
424 (e) Damages or attorney fees may not be assessed against a
425 woman upon whom an abortion was performed or induced, or upon
426 whom an abortion was attempted to be performed or induced,
427 except in accordance with paragraph (d).
428 (8) PROTECTION OF PRIVACY IN COURT PROCEEDINGS.—In each
429 civil or criminal proceeding or action brought under this
430 section, if a woman upon whom an abortion has been performed or
431 induced, or upon whom an abortion has been attempted to be
432 performed or induced, does not give her consent to such
433 disclosure, the court must rule on whether the anonymity of the
434 woman must be preserved from public disclosure. The court, upon
435 its own motion or the motion of a party, shall make such a
436 ruling and, if it determines that anonymity should be preserved,
437 shall issue an order to preserve the woman’s anonymity to the
438 parties, witnesses, and counsel and shall direct the sealing of
439 the record and the exclusion of individuals from courtrooms or
440 hearing rooms to the extent necessary to safeguard the woman’s
441 identity from public disclosure. Each such order must be
442 accompanied by specific written findings explaining why the
443 anonymity of the woman should be preserved; why the order is
444 essential to that end; how the order is narrowly tailored to
445 serve that interest; and why a reasonable, less restrictive
446 alternative does not exist. In the absence of the written
447 consent of the woman upon whom an abortion has been performed or
448 induced or upon whom an abortion has been attempted to be
449 performed or induced, anyone, other than a public official, who
450 brings an action under paragraph (7)(a) or paragraph (7)(b)
451 shall do so under a pseudonym. This section may not be construed
452 to conceal the identity of the plaintiff or any witness from the
453 defendant or from attorneys for the defendant.
454 (9) 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 is 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 is deemed unlawful. If this
462 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 must 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 must be given full force and effect.
469 Section 3. This act shall take effect July 1, 2021.