Georgia-2011-HB954-Introduced

To amend Article 5 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to abortion, so as to change certain provisions relating to criminal abortion; to change certain provisions relating to when abortion is legal; to amend Title 31 of the Official Code of Georgia Annotated, relating to health, so as to define certain terms; to require a determination of gestational age prior to abortion; to provide for certain reporting requirements with respect to performance of abortions; to change certain provisions relating to civil and professional penalties for violations of the "Woman's Right to Know Act"; to provide for confidentiality; to change certain provisions relating to definitions relative to the "Woman's Right to Know Act"; to state legislative findings; to provide for other related matters; to provide effective dates; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

The General Assembly makes the following findings:

(1) At least by 20 weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain;

(2) There is substantial evidence that, by 20 weeks after fertilization, unborn children seek to evade certain stimuli in a manner which in an infant or an adult would be interpreted as a response to pain;

(3) Anesthesia is routinely administered to unborn children who have developed 20 weeks or more past fertilization who undergo prenatal surgery;

(4) Even before 20 weeks after fertilization, unborn children have been observed to exhibit hormonal stress responses to painful stimuli. Such responses were reduced when pain medication was administered directly to such unborn children;

(4.1) Probable gestational age is an estimate made to assume the closest time to which the fertilization of a human ovum occurred and does not purport to be an exact diagnosis of when such fertilization occurred; and

(5) It is the purpose of the State of Georgia to assert a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.

Article 5 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to abortion, is amended by revising Code Sections 16-12-140 and 16-12-141, relating to criminal abortion and when abortion is legal, respectively, as follows:

(a) Except as otherwise provided in Code Section 16-12-141, a A person commits the offense of criminal abortion when, in violation of Code Section 16-12-141, he or she administers any medicine, drugs, or other substance whatever to any woman or when he or she uses any instrument or other means whatever upon any woman with intent to produce a miscarriage or abortion.

(b) A person convicted of the offense of criminal abortion shall be punished by imprisonment for not less than one nor more than ten years.

(a) Nothing in this article shall be construed to prohibit an abortion performed by a physician duly licensed to practice medicine and surgery pursuant to Chapter 34 of Title 43, based upon his or her best clinical judgment that an abortion is necessary, except that Code Section 16-12-144 is a prohibition of a particular abortion method which shall apply to both duly licensed physicians and laypersons. No abortion is authorized or shall be performed in violation of subsection (a) of Code Section 31-9B-2.

(b)(1) No abortion is authorized or shall be performed after the first trimester unless the abortion is performed in a licensed hospital, in a licensed ambulatory surgical center, or in a health facility licensed as an abortion facility by the Department of Community Health.

(2) An abortion shall only be performed by a physician licensed under Article 2 of Chapter 34 of Title 43.

(c)(1) No abortion is authorized or shall be performed after the second trimester if the probable gestational age of the unborn child has been determined in accordance with Code Section 31-9B-2 to be 20 weeks or more unless the physician and two consulting physicians certify that the pregnancy is diagnosed as medically futile, as such term is defined in Code Section 31-9B-1, or in reasonable medical judgment the abortion is necessary in their best clinical judgment to preserve the life or health of the woman to:

(A) Avert the death of the pregnant woman or avert serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman. No such condition shall be deemed to exist if it is based on a diagnosis or claim of a mental or emotional condition of the pregnant woman or that the pregnant woman will purposefully engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function; or

(B) Preserve the life of an unborn child.

As used in this paragraph, the term 'probable gestational age of the unborn child' has the meaning provided by Code Section 31-9B-1.

(2) In any case described in subparagraph (A) or (B) of paragraph (1) of this subsection, the physician shall terminate the pregnancy in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive unless, in reasonable medical judgment, termination of the pregnancy in that manner would pose a greater risk either of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function of the pregnant woman than would another available method. No such greater risk shall be deemed to exist if it is based on a diagnosis or claim of a mental or emotional condition of the pregnant woman or that the pregnant woman will purposefully engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function. If the product of the abortion child is capable of meaningful or sustained life, medical aid then available must be rendered.

(d) The performing physician shall file with the commissioner of public health within ten days after an abortion procedure is performed a certificate of abortion containing such statistical data as is determined by the Department of Public Health consistent with preserving the privacy of the woman. Hospital or other licensed health facility records shall be available to the district attorney of the judicial circuit in which the hospital or health facility is located."

Title 31 of the Official Code of Georgia Annotated, relating to health, is amended by adding a new Chapter 9B to read as follows:

(a) As used in this chapter, the term:

(1) 'Abortion' has the meaning provided by Code Section 31-9A-2.

(2) 'Medical emergency' has the meaning provided by Code Section 31-9A-2.

(3) 'Medically futile' means that, in reasonable medical judgment, the unborn child has a profound and irremediable congenital or chromosomal anomaly that is incompatible with sustaining life after birth.

(4) 'Physician' has the meaning provided by Code Section 31-9A-2.

(5) 'Probable gestational age of the unborn child' means what will, in reasonable medical judgment and with reasonable probability, be the postfertilization age of the unborn child at the time the abortion is planned to be performed or induced, as dated from the time of fertilization of the human ovum.

(6) 'Reasonable medical judgment' means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.

(7) 'Unborn child' has the meaning provided by Code Section 31-9A-2.

(a) Except in the case of a medical emergency or when a pregnancy is diagnosed as medically futile, no abortion shall be performed or attempted to be performed unless the physician performing it has first made a determination of the probable gestational age of the unborn child or relied upon such a determination made by another physician.

(b) Failure by any physician to conform to any requirement of this Code section constitutes unprofessional conduct for purposes of paragraph (7) of subsection (a) of Code Section 43-34-8 relating to medical licensing sanctions.

(a) Any physician who performs or attempts to perform an abortion shall report to the department, in conjunction with the reports required under Code Section 31-9A-6 and in accordance with forms and rules and regulations adopted and promulgated by the department:

(1) If a determination of probable gestational age was made, the probable gestational age determined and the method and basis of the determination;

(2) If a determination of probable gestational age was not made, the basis of the determination that a medical emergency existed or that a pregnancy was diagnosed as medically futile;

(3) If the probable gestational age was determined to be 20 or more weeks, the basis of the determination that the pregnant woman had a medically futile pregnancy or had a condition which so complicated her medical condition as to necessitate the termination of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, or the basis of the determination that it was necessary to preserve the life of an unborn child; and

(4) The method used for the abortion and, in the case of an abortion performed when the probable gestational age was determined to be 20 or more weeks, whether the method of abortion used was one that, in reasonable medical judgment, provided the best opportunity for the unborn child to survive or, if such a method was not used, the basis of the determination that the pregnancy was medically futile or that termination of the pregnancy in that manner would pose a greater risk either of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function of the pregnant woman than would other available methods.

(b) By June 30 of each year, the department shall issue a public report providing statistics for the previous calendar year compiled from all of the reports covering that year submitted in accordance with this Code section for each of the items listed in subsection (a) of this Code section. Each such report shall also provide the statistics for all previous calendar years during which this Code section was in effect, adjusted to reflect any additional information from late or corrected reports. The department shall take care to ensure that none of the information included in the public reports could reasonably lead to the identification of any pregnant woman upon whom an abortion was performed.

(c) The department shall ensure that the names and identities of the physicians filing reports under this chapter shall remain confidential. The names and identities of such physicians shall not be subject to Article 4 of Chapter 18 of Title 50.

(d) Any physician who fails to submit a report by the end of the grace period of 30 days following the due date shall be subject to sanctions as specified in subsection (e) of Code Section 31-9A-6.

(e) The department shall adopt such rules and regulations as are reasonable and necessary to implement the provisions of this Code section."

Said title is further amended by revising Code Section 31-9A-6.1, relating to civil and professional penalties for violations of the "Woman's Right to Know Act," as follows:

(a) In addition to whatever remedies are available under the common or statutory law of this state, failure to comply with the requirements of this chapter shall be reported to the Georgia Composite Medical Board for disciplinary action.

(b) Any plaintiff seeking relief in the form of civil remedies for a violation of Code Section 31-9B-2 shall produce clear and convincing evidence that the physician determining the probable gestational age of the fetus or the physician whose determination was relied upon was negligent in his or her determination.

(c) Any female who solicits or conspires to solicit an abortion who makes a false representation of her age or name shall not have standing to state a claim against any party pursuant to this chapter or Chapter 9B of this title nor shall any agency or instrumentality of the state consider any action related to such claim."

Said title is further amended by revising paragraph (2) of Code Section 31-9A-2, relating to definitions relative to the "Woman's Right to Know Act," as follows:

"(2) 'Medical emergency' means any condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant female as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial or irreversible impairment of a major bodily function. 'Medical emergency' means any condition which, in reasonable medical judgment, so complicates the medical condition of a pregnant female as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial or irreversible impairment of a major bodily function of the pregnant woman or death of the unborn child. No such condition shall be deemed to exist if it is based on a diagnosis or claim of a mental or emotional condition of the pregnant woman or that the pregnant woman will purposefully engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function."

For purposes of promulgating rules and regulations, this Act shall become effective upon approval by the Governor or upon its becoming law without such approval. For all other purposes, this Act shall become effective on January 1, 2013.