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
fertilizationand 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 fertilizationthrough 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.