Bill Text: FL S0558 | 2019 | Regular Session | Introduced


Bill Title: Termination of Pregnancy

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2019-05-03 - Died in Health Policy [S0558 Detail]

Download: Florida-2019-S0558-Introduced.html
       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.

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