Arizona-2021-HB2878-Introduced

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 13-1102, Arizona Revised Statutes, is amended to read:

START_STATUTE13-1102. Negligent homicide; classification

A. A person commits negligent homicide if with criminal negligence the person causes the death of another person, including an unborn child.

B. An offense under this section applies to an unborn child in the womb at any stage of its the unborn child's development. A person may not be prosecuted under this section if any of the following applies:

1. The person was performing an abortion for which the consent of the pregnant woman, or a person authorized by law to act on the pregnant woman's behalf, has been obtained or for which the consent was implied or authorized by law.

2. The person was performing medical treatment on the pregnant woman or the pregnant woman's unborn child.

3. The person was the unborn child's mother.

C. Negligent homicide is a class 4 felony. END_STATUTE

Sec. 2. Section 13-1103, Arizona Revised Statutes, is amended to read:

START_STATUTE13-1103. Manslaughter; classification

A. A person commits manslaughter by doing any of the following:

1. Recklessly causing the death of another person. ; or

2. Committing second degree murder as prescribed in section 13-1104, subsection A upon on a sudden quarrel or heat of passion resulting from adequate provocation by the victim. ; or

3. Intentionally providing the physical means that another person uses to commit suicide, with the knowledge that the person intends to commit suicide. ; or

4. Committing second degree murder as prescribed in section 13-1104, subsection A, paragraph 3, while being coerced to do so by the use or threatened immediate use of unlawful deadly physical force upon such on the person or a third person which that a reasonable person in his the situation would have been unable to resist. ; or

5. Knowingly or recklessly causing the death of an unborn child by any physical injury to the mother.

B. An offense under subsection A, paragraph 5 of this section applies to an unborn child in the womb at any stage of its the unborn child's development. A person shall not be prosecuted under subsection A, paragraph 5 of this section if any of the following applies:

2. The person was performing medical treatment on the pregnant woman or the pregnant woman's unborn child.

3. The person was the unborn child's mother.

C. Manslaughter is a class 2 felony. END_STATUTE

Sec. 3. Section 13-1104, Arizona Revised Statutes, is amended to read:

START_STATUTE13-1104. Second degree murder; classification

A. A person commits second degree murder if without premeditation:

1. The person intentionally causes the death of another person, including an unborn child or, as a result of intentionally causing the death of another person, causes the death of an unborn child. ; or

2. Knowing that the person's conduct will cause death or serious physical injury, the person causes the death of another person, including an unborn child or, as a result of knowingly causing the death of another person, causes the death of an unborn child. ; or

3. Under circumstances manifesting extreme indifference to human life, the person recklessly engages in conduct that creates a grave risk of death and thereby causes the death of another person, including an unborn child or, as a result of recklessly causing the death of another person, causes the death of an unborn child.

2. The person was performing medical treatment on the pregnant woman or the pregnant woman's unborn child.

3. The person was the unborn child's mother.

C. Second degree murder is a class 1 felony and is punishable as provided by section 13-705 if the victim is under fifteen years of age or is an unborn child, section 13-706, subsection A or section 13-710.END_STATUTE

Sec. 4. Section 13-1105, Arizona Revised Statutes, is amended to read:

START_STATUTE13-1105. First degree murder; classification

A. A person commits first degree murder if:

1. Intending or knowing that the person's conduct will cause death, the person causes the death of another person, including an unborn child, with premeditation or, as a result of causing the death of another person with premeditation, causes the death of an unborn child.

2. Acting either alone or with one or more other persons the person commits or attempts to commit sexual conduct with a minor under section 13-1405, sexual assault under section 13-1406, molestation of a child under section 13-1410, terrorism under section 13-2308.01, marijuana offenses under section 13-3405, subsection A, paragraph 4, dangerous drug offenses under section 13-3407, subsection A, paragraphs 4 and 7, narcotics offenses under section 13-3408, subsection A, paragraph 7 that equal or exceed the statutory threshold amount for each offense or combination of offenses, involving or using minors in drug offenses under section 13-3409, drive by shooting under section 13-1209, kidnapping under section 13-1304, burglary under section 13-1506, 13-1507 or 13-1508, arson under section 13-1703 or 13-1704, robbery under section 13-1902, 13-1903 or 13-1904, escape under section 13-2503 or 13-2504, child abuse under section 13-3623, subsection A, paragraph 1 or unlawful flight from a pursuing law enforcement vehicle under section 28-622.01 and, in the course of and in furtherance of the offense or immediate flight from the offense, the person or another person causes the death of any person.

3. Intending or knowing that the person's conduct will cause death to a law enforcement officer, the person causes the death of a law enforcement officer who is in the line of duty.

B. Homicide, as prescribed in subsection A, paragraph 2 of this section, requires no specific mental state other than what is required for the commission of any of the enumerated felonies.

C. An offense under subsection A, paragraph 1 of this section applies to an unborn child in the womb at any stage of its the unborn child's development. A person shall not be prosecuted under subsection A, paragraph 1 of this section if any of the following applies:

2. The person was performing medical treatment on the pregnant woman or the pregnant woman's unborn child.

3. The person was the unborn child's mother.

D. First degree murder is a class 1 felony and is punishable by death or life imprisonment as provided by sections 13-751 and 13-752.END_STATUTE

Sec. 5. Repeal

Sections 13-3603 and 13-3603.01, Arizona Revised Statutes, are repealed.

Sec. 6. Section 13-3603.02, Arizona Revised Statutes, is amended to read:

START_STATUTE13-3603.02. Abortion; sex and race selection; injunctive and civil relief; failure to report; definition

A. A person who knowingly does any of the following is guilty of a class 3 2 felony:

1. Performs an abortion knowing that the abortion is sought based on the sex or race of the child or the race of a parent of that child.

2. Uses force or the threat of force to intentionally injure or intimidate any person for the purpose of coercing a sex-selection or race-selection abortion.

3. Solicits or accepts monies to finance a sex-selection or race-selection abortion.

B. The attorney general or the county attorney may bring an action in superior court to enjoin the activity described in subsection A of this section.

C. The father of the unborn child who is married to the mother at the time she receives a sex-selection or race-selection abortion, or, if the mother has not attained eighteen years of age at the time of the abortion, the maternal grandparents of the unborn child, may bring a civil action on behalf of the unborn child to obtain appropriate relief with respect to a violation of subsection A of this section. The court may award reasonable attorney fees as part of the costs in an action brought pursuant to this subsection. For the purposes of this subsection, "appropriate relief" includes monetary damages for all injuries, whether psychological, physical or financial, including loss of companionship and support, resulting from the violation of subsection A of this section.

D. A physician, physician's assistant, nurse, counselor or other medical or mental health professional who knowingly does not report known violations of this section to appropriate law enforcement authorities shall be subject to a civil fine of not more than ten thousand dollars $10,000.

E. A woman on whom a sex-selection or race-selection abortion is performed is not subject to criminal prosecution or civil liability for any violation of this section or for a conspiracy to violate this section.

F. For the purposes of this section, "abortion" has the same meaning prescribed in section 36-2151. END_STATUTE

Sec. 7. Legislative findings

A. Women are a vital part of American society and culture and possess the same fundamental human rights and civil rights as men.

B. United States law prohibits the dissimilar treatment of males and females who are similarly situated and prohibits sex discrimination in various contexts, including the provision of employment, education, housing, health insurance coverage and athletics.

C. Sex is an immutable characteristic ascertainable at the earliest stages of human development through existing medical technology and procedures commonly in use, including maternal-fetal bloodstream DNA sampling, amniocentesis, chorionic villus sampling and obstetric ultrasound. In addition to medically assisted sex determination, a growing sex-determination niche industry has developed and is marketing low-cost commercial products, widely advertised and available, that aid in the sex determination of an unborn child without the aid of medical professionals. Experts have demonstrated that the sex-selection industry is on the rise and predict that sex selection will continue to be a growing trend in the United States. Sex determination is always a necessary step to the procurement of a sex-selection abortion.

D. A sex-selection abortion is an abortion undertaken for purposes of eliminating an unborn child of an undesired sex. Sex-selection abortion is barbaric and is described by scholars and civil rights advocates as an act of sex-based or gender-based violence, predicated on sex discrimination. Sex-selection abortions are typically late-term abortions performed in the second or third trimester of pregnancy, often after the unborn child has developed sufficiently to feel pain. Substantial medical evidence proves that an unborn child can experience pain at twenty weeks after conception, and perhaps substantially earlier. By definition, sex-selection abortions do not implicate the health of the mother of the unborn but instead are elective procedures motivated by sex or gender bias.

E. The targeted victims of sex-selection abortions performed in the United States and worldwide are overwhelmingly female. The selective abortion of females is female infanticide, the intentional killing of unborn females, due to the preference for male offspring or "son preference." Son preference is reinforced by the low value associated, by some segments of the world community, with female offspring. Those segments tend to regard female offspring as financial burdens to a family over their lifetime due to their perceived inability to earn or provide financially for the family unit as can a male. In addition, due to social and legal convention, female offspring are less likely to carry on the family name. Son preference is one of the most evident manifestations of sex or gender discrimination in any society, undermining female equality and fueling the elimination of females’ right to exist in instances of sex-selection abortion.

F. Sex-selection abortions are not expressly prohibited by United States law or the laws of forty-six states. Sex-selection abortions are performed in the United States. In a March 2008 report published in the Proceedings of the National Academy of Sciences, Columbia University economists Douglas Almond and Lena Edlund examined the sex ratio of United States-born children and found "evidence of sex selection, most likely at the prenatal stage." The data revealed obvious son preference in the form of unnatural sex-ratio imbalances within certain segments of the United States population, primarily those segments tracing their origins to countries where sex-selection abortion is prevalent. The evidence strongly suggests that some Americans are exercising sex-selection abortion practices within the United States consistent with discriminatory practices common to their country of origin or the country to which they trace their ancestry. While sex-selection abortions are more common outside the United States, the evidence reveals that female feticide is also occurring in the United States.

G. The American public supports a prohibition of sex-selection abortion. In a March 2006 Zogby International poll, 86 percent of Americans agreed that sex-selection abortion should be illegal, yet only eight states proscribe sex-selection abortion. In a 2012 poll conducted by the Charlotte Lozier Institute, 77 percent of Americans agreed that sex-selection abortion should be illegal.

H. Despite the failure of the United States to proscribe sex-selection abortion, the United States Congress has expressed repeatedly, through Congressional resolution, strong condemnation of policies promoting sex-selection abortion in the Communist Government of China. Likewise, at the 2007 United Nations Annual Meeting of the Commission on the Status of Women, 51st Session, the United States delegation spearheaded a resolution calling on countries to condemn sex-selective abortion, a policy directly contradictory to the permissiveness of current United States law, which places no restriction on the practice of sex-selection abortion. The United Nations Commission on the Status of Women has urged governments of all nations "to take necessary measures to prevent … prenatal sex selection."

I. A 1990 report by Harvard University economist Amartya Sen estimated that more than 100 million women were "demographically missing" from the world as early as 1990 due to sexist practices, including sex-selection abortion. Many experts believe sex-selection abortion is the primary cause. More recent estimates of women missing from the world range in the hundreds of millions.

J. Countries with longstanding experience with sex-selection abortion—such as the Republic of India, the United Kingdom and the People's Republic of China—have enacted restrictions on sex selection and have steadily continued to strengthen prohibitions and penalties. The United States, by contrast, has no law in place to restrict sex-selection abortion, establishing the United States as affording less protection from sex-based feticide than the Republic of India or the People's Republic of China, whose recent practices of sex-selection abortion were vehemently and repeatedly condemned by United States congressional resolution and by the United States Ambassador to the Commission on the Status of Women. Public statements from within the medical community reveal that citizens of other countries come to the United States for sex-selection procedures that would be criminal in their country of origin. Because the United States permits abortion on the basis of sex, the United States may effectively function as a safe haven for those who seek to have American physicians do what would otherwise be criminal in their home countries—a sex-selection abortion, most likely late-term.

K. The American medical community opposes sex selection. The American Congress of Obstetricians and Gynecologists stated in its 2007 Ethics Committee Opinion, Number 360, that sex selection is inappropriate because it "ultimately supports sexist practices." The American Society of Reproductive Medicine ("ASRM") published a 2004 Ethics Committee Opinion, noting that central to the controversy of sex selection in the use of assisted reproductive technology ("ART") is the potential for "inherent gender discrimination," the "risk of psychological harm to sex-selected offspring (i.e., by placing on them expectations that are too high)" and "reinforcement of gender bias in society as a whole." Sex selection in ART remains "vulnerable to the judgment that no matter what its basis, [the method] identifies gender as a reason to value one person over another, and it supports socially constructed stereotypes of what gender means." In doing so, it not only "reinforces possibilities of unfair discrimination, but may trivialize human reproduction by making it depend on the selection of nonessential features of offspring." The ASRM ethics opinion continues, "ongoing problems with the status of women in the United States make it necessary to take account of concerns for the impact of sex-selection on goals of gender equality." The American Association of Pro-Life Obstetricians and Gynecologists, an organization with hundreds of members—many of whom are former abortionists—makes the following declaration: "Sex selection abortions are more graphic examples of the damage that abortion inflicts on women. In addition to increasing premature labor in subsequent pregnancies, increasing suicide and major depression, and increasing the risk of breast cancer in teens who abort their first pregnancy and delay childbearing, sex selection abortions are often targeted at fetuses simply because the fetus is female. As physicians who care for both the mother and her unborn child, the American Association of Pro-Life Obstetricians and Gynecologists vigorously opposes aborting fetuses because of their gender.". The President's Council on Bioethics published a working paper stating the council's belief that society's respect for reproductive freedom does not prohibit the regulation or prohibition of "sex control," defined as the use of various medical technologies to choose the sex of one's child. The publication expresses concern that "sex control might lead to … dehumanization and a new eugenics."

L. 1. Sex-selection abortions are often coerced, and therefore, the opposite of choice. Researchers at the University of California at Berkeley and the University of California at San Francisco completed a study of Indian-American women who had undergone sex-selection abortions in the United States. The study found that sex-selection abortions are often the product of violent coercion.

2. Women who carried a female unborn child to term said they were subject to varying degrees of verbal and physical abuse, which may be to the point of actually inducing a sex-selection abortion. A woman may be denied food, water, and rest to induce an abortion where the family determines that the woman is carrying a female unborn child. Some women described being hit, pushed, choked and kicked in the abdomen in a husband's attempt to forcibly terminate a female unborn child. Pregnancy is already a vulnerable time for women; the most common cause of death for pregnant women in the United States is homicide, often at the hands of the unborn child's father.

3. The study concluded that sex selection can be the product of an abusive environment created by marital partners or an extended family, or both. One-third of the women in the study reported that a history of family violence exacerbated when they did not give birth to a son. Notably, because the researchers had reason to fear for the participants' exposure to marital violence, all subjects received information on local South Asian women's organizations offering assistance for victims of family violence. The failure to bear a son is a serious matter; the birth of a daughter could result in violence or a brutal death for the mother at the hands of the father and mother-in-law. For example, photojournalist Walter Astrada's renowned documentary tells the story of an Indian woman who was tortured and abandoned by her husband and mother-in-law for refusing to abort twin girls. Sex-selection abortion has long been considered a form of violence against women, and the study proved that both the women and the unborn daughter are victims of violence where sex-selection abortion is legally available but not sought by the mother. Forty percent of the women had terminated prior pregnancies when they learned that the unborn child was female. Of the women who discovered they were pregnant with a girl during the interview period, 89 percent underwent a sex-selection abortion. Among those that did not abort their unborn daughters, 100 percent expressed ambivalence about prior sex-selection abortions. Further, 100 percent cited physical and psychological trauma from the past abortions as reasons for not seeking another. Most tragically, 100 percent expressed guilt, shame and sadness over their inability to "save" the daughters they had aborted.

4. Coercive sex-selection abortions are suspected in other western countries as well. Following a 2012 investigation of sex-selection abortion in the United Kingdom, Dr. Tony Falconer, President of the Royal College of Obstetrics and Gynaecology, raised the specter that women may be experiencing violence and coercion to force sex-selection abortions.

5. A growing body of research documents the relationship between intimate partner violence and reproductive coercion.

M. Sex-selection abortion harms women. Researchers at the University of California found that women in the United States who undergo sex-selection abortions are at increased risk for psychological and physical morbidity, documented by their descriptions of depression, anxiety, chronic pain, physical abuse, closely spaced pregnancies, and "forced abortions." Further, 100 percent of the study participants who chose to carry unborn baby girls cited physical and psychological trauma from past abortions as reasons for not seeking another. Similarly, Indian-Canadian counselor Aruna Papp stated publicly that in her thirty years of experience treating Indian-Canadian women, she has found that sex-selection abortion is the leading cause of mental illness among women in the Punjabi Health Services, Peel region, and the leading cause of depression and attempted suicide in the South Asian Settlement Services in Scarborough. Some of Papp's patients obtained their sex-selection abortions in Michigan and New York. Papp also reports "many other physical ailments that are related to two, three, or four abortions."

N. Sex-selection abortion results in an unnatural sex-ratio imbalance. An unnatural sex-ratio imbalance is undesirable due to the inability of the numerically predominant sex to find mates. Experts worldwide document that a significant sex-ratio imbalance in which males numerically predominate can be a cause of increased violence and militancy within a society. Likewise, an unnatural sex-ratio imbalance gives rise to the commoditization of humans in the form of human trafficking, and a consequent increase in kidnapping and other violent crime.

O. Sex-selection abortions have the effect of diminishing the representation of women in the American population, and therefore, the American electorate.

P. Sex-selection abortion reinforces sex discrimination and has no place in a civilized society.

Q. Minorities are a vital part of American society and culture and possess the same fundamental human rights and civil rights as the majority.

R. United States law prohibits discrimination on the basis of race in various contexts, including employment, education, housing, health insurance coverage and athletics.

S. A race-selection abortion is an abortion performed for purposes of eliminating an unborn child because the child or a parent of the child is of an undesired race. Race-selection abortion is barbaric and is described by civil rights advocates as an act of race-based violence, predicated on race discrimination. By definition, race-selection abortions do not implicate the health of mother of the unborn but instead are elective procedures motivated by race bias.

T. A thorough review of the history of the American population control movement and its close affiliation with the American Eugenics Society reveals a history of targeting certain racial or ethnic groups for "family planning." This history likely contributes to the current statistic that a Black baby is five times as likely to be aborted as a White baby, often in a federally subsidized clinic.

U. Abortion is the leading cause of death in the Black community. With approximately 450,000 Black abortions per year, more Black Americans lose their lives each year to abortion than to cancer, heart disease, diabetes, AIDS and violence combined. These statistics are derived by comparing the abortion statistics of the Alan Guttmacher Institute (formerly the research arm of Planned Parenthood) to the National Vital Statistics annual reports showing the number of deaths by cause and race. The numbers for each of these variables have remained relatively constant from year to year since 2005.

V. Only the State of Arizona has enacted law to proscribe the performance of race-selection abortions.

W. Race-selection abortions have the effect of diminishing the number of minorities in the American population and, therefore, the American electorate.

X. Race-selection abortion reinforces racial discrimination and has no place in a civilized society.

Y. The history of the United States includes examples of both sex discrimination and race discrimination. The people of the United States ultimately responded in the strongest possible legal terms by enacting constitutional amendments correcting elements of such discrimination. Women, once subjected to sex discrimination that denied them the right to vote, now have suffrage guaranteed by the 19th Amendment. African-Americans, once subjected to race discrimination through slavery that denied them equal protection of the laws, now have that right guaranteed by the 14th Amendment. The elimination of discriminatory practices has been and is among the highest priorities and greatest achievements of American history.

Z. Implicitly approving the discriminatory practices of sex-selection abortion and race-selection abortion by choosing not to prohibit them will reinforce these inherently discriminatory practices and evidence a failure to protect a segment of certain unborn Americans because those unborn are of a sex or racial makeup that is disfavored. Sex-selection and race-selection abortions trivialize the value of the unborn on the basis of sex or race, reinforcing sex and race discrimination and coarsening society to the humanity of all vulnerable and innocent human life, thereby making it increasingly difficult to protect such life. Thus, this Legislature has a compelling interest in acting—indeed it must act—to prohibit sex-selection abortion and race-selection abortion.

AA. The Constitution of Arizona currently provides for the protection of all persons and children in Arizona. (Article II, section 4.)

BB. Female babies have been and are being targeted and discriminated against by the abortion industry and are therefore being discriminated against in contradiction to Arizona's Constitution.

CC. African-American women and their babies have been historically targeted and discriminated against by Planned Parenthood and are therefore being discriminated against in contradiction to Arizona's Constitution.

DD. For many, many decades, Black women and babies have been targeted by the abortion industry. Babies of Black mothers are more than three to five times more likely to be aborted than White babies, resulting in 20 million Black children having been legally killed in America since 1973. It is the civil rights issue of our time.

EE. No racial group in America, historically and currently, has been more left out of societal protection nor suffered more deliberate discrimination, dehumanization, agonizing dismemberment and death legally imposed on them than Black children. This unconscionable discrimination against African-American women and their children is implicitly prohibited under our state constitution and other laws protecting persons

FF. The Arizona State Supreme Court ruled in its Summerfield decision that the unborn child could and should be protected in many cases.

GG. The United States Constitution does not explicitly or implicitly prohibit states from recognizing the equal protection of preborn human life and does not preclude states from protecting all human life regardless of sex, race or color.

HH. The United States Supreme Court in Roe v. Wade did not question the premise that all human beings possess an innate right to life; rather, the Court acknowledged that this was a question fraught with uncertainty and the Court was not in a position to speculate as to when human life begins. In fact, the Court said, "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."

II. States, therefore, have a presumptive and justifiable foundation under the 10^th Amendment to answer that pivotal question unanswered in the United States Constitution and in the Supreme Court's jurisprudence and to acknowledge the right to life of all unborn children within that state's boundaries irrespective of sex, race or color.

JJ. The United States Constitution, under its 10^th amendment, empowers, and Arizona's Constitution requires, the Legislature to take all actions necessary to prohibit discrimination against preborn female children and preborn children of color in Arizona to ensure their equal protection under the law.

Sec. 8. Short title

This act shall be known as the "Prenatal Nondiscrimination Act of 2021".