Bill Text: HI SB266 | 2023 | Regular Session | Introduced

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Bill Title: Relating To Children.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2023-01-23 - Referred to HHS, JDC/WAM. [SB266 Detail]

Download: Hawaii-2023-SB266-Introduced.html

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THE SENATE	S.B. NO.	266
THIRTY-SECOND LEGISLATURE, 2023
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to children.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  The legislature finds that the State has a paramount interest in protecting all human life.  Any infant born alive, even after an attempted abortion, is a legal person for all purposes under the state and federal constitutions and other state and federal laws.  The legislature also finds that nationwide, more than six thousand abortions per year reportedly occur after twenty weeks of gestation, a time during which a fetus could be viable.  While most states do not have reporting requirements for failed abortions, in Canada, four hundred and ninety-one cases were reported over a nine-year period where live births after attempted abortions resulted in subsequent neonatal deaths.  Absent proper legal protection, newborns who unexpectedly survive an abortion procedure may be denied life‑saving or life-sustaining medical care and left to die.

     The legislature further finds that protecting an infant whose live birth occurred despite an attempted abortion does not infringe on a woman's right to choose or to obtain an abortion under existing state or federal laws.  It similarly does not interfere with the ability of licensed health care professionals to provide legal abortions.

     Accordingly, the purpose of this Act is to protect the life and well-being of all infants who survive abortion attempts in the State by:

     (1)  Requiring healthcare providers to provide medically appropriate and reasonable life-saving and life sustaining medical care and treatment to all infants born alive; and

     (2)  Establishing penalties for failing to provide infants born alive with reasonable and appropriate medical care.

     SECTION 2.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

abortion survivors protection act

     §   -1  Definitions.  For purposes of this chapter, unless the context requires otherwise:

     "Abortion" means the use or prescription of any instrument, machine, drug, or any other substance or device to intentionally:

     (1)  End the life of the unborn child of a woman known to be pregnant; or

     (2)  Terminate the pregnancy of a woman known to be pregnant, with an intention other than to:

          (A)  Produce a live birth and preserve the life and health of the child born alive after viability; or

          (B)  Remove a dead unborn child.

     "Attempt" means, with respect to abortion, conduct that, under the circumstances as the actor believes them to be, constitutes a substantial step in the course of conduct planned to culminate in an abortion.

     "Born alive" or "live birth" means the complete expulsion or extraction of a viable infant from his or her mother, regardless of the infant's stage of gestational development, who after expulsion or extraction, whether or not the umbilical cord has been cut or the placenta is attached, shows evidence of life, including:

     (1)  Breathing;

     (2)  A heartbeat;

     (3)  Umbilical cord pulsations;

     (4)  Definite movement of voluntary muscles; or

     (5)  Any other evidence of life according to standard medical practice.

     "Consent" means the voluntary agreement or acquiescence by a person of age and with the requisite mental capacity who is not under duress or coercion and who has knowledge or understanding of the act or action to which the person agrees or acquiesces.

     "Healthcare provider" means any person providing aid or assistance to a physician or nurse, or any person authorized to provide healthcare to the mother during an abortion.

     "Infant" means a human child who has been completely expulsed or extracted from the mother, regardless of the infant's stage of gestational development, until the age of thirty days post-birth.

     "Nurse" means a person who has been or is currently licensed under chapter 457.

     "Physician" means:

     (1)  A physician or surgeon licensed to practice medicine or osteopathy pursuant to chapter 453; or

     (2)  A person who is not a licensed physician or surgeon but directly performs or attempts to perform an abortion.

     "Unborn child" means a human fetus, beginning at fertilization, until the point of being born alive.

     §   -2  Requirements and responsibilities.  (a) No person shall deny or deprive an infant born alive of nourishment with the intent to cause or allow the death of the infant for any reason.

     (b)  No person shall deprive an infant born alive of medically appropriate and reasonable medical care and treatment or surgical care.

     (c)  This section shall not be construed to prohibit an infant's parent or guardian from refusing to consent to medical treatment or surgical care that is not medically necessary or reasonable, including care or treatment that:

     (1)  Is not necessary to save the life of the infant;

     (2)  Has a potential risk of harm to the infant's life or health that outweighs the potential benefit to the infant of the treatment or care; or

     (3)  Will do no more than temporarily prolong the act of dying, as in the case of a non-viable infant, when death is imminent.

     (d)  The physician performing an abortion shall take all medically appropriate and reasonable steps to preserve the life and health of an infant born alive.  If an abortion is performed in a hospital but a live birth nevertheless occurs, the physician attending the abortion shall provide immediate medical care to the infant, inform the mother of the live birth, and request transfer of the infant to an on-duty resident or emergency care physician who shall provide medically appropriate and reasonable care and treatment to the infant.

     (e)  If a physician is unable to perform the duties described in subsection (d) because the physician is assisting the woman on whom the abortion was performed, the attending physician's assistant, a nurse, or other healthcare provider shall assume the duties.

     (f)  Any infant born alive, including an infant born during an abortion procedure, shall be treated as a legal person under the laws of this State, having all legal rights to medically appropriate and reasonable care and treatment.

     (g)  If, before the abortion, the mother stated in writing that she does not wish to maintain custody of the infant in the event that the infant is born alive, and this writing is not retracted before the attempted abortion, the infant, if born alive, shall immediately become a ward under the care of the department of human services.

     (h)  No person shall use, or authorize the use of, any infant born alive for any type of scientific research or medical experimentation, except as necessary to protect the life and health of the infant born alive.

     (i)  Any physician, nurse, healthcare provider, or employee of a hospital, physician's office, or clinic, who has knowledge of a person's failure to comply with this section shall immediately report the non-compliance to law enforcement.

     §   -3  Criminal penalties.  (a)  Any physician, nurse, or other healthcare provider who intentionally performs an overt act that kills an infant born alive shall be guilty of the offense of murder in the second degree under section 707-701.5.    (b)  Any physician, nurse, or other healthcare provider who recklessly fails to provide medically appropriate and reasonable care and treatment to an infant born alive where the infant dies as a result of that failure shall be guilty of the offense of manslaughter under section 707-702; provided that the mother of an infant born alive may not be prosecuted for conspiracy in or as an accomplice to a violation of this subsection.

     (c)  Any physician, nurse, healthcare provider, or person, including a parent or guardian, who conceals the corpse of an infant with the intent to conceal the fact of the infant's birth or to prevent the determination of whether the infant was born alive or dead shall be guilty of the offense of concealing the corpse of an infant under section 709-901.

     (d)  Any physician, nurse, healthcare provider, or person, including a parent or guardian, who knowingly violates section    -2(h) shall be fined not more than $10,000 or imprisoned not more than five years, or both.

     §   -4  Civil action.  (a)  If an infant is born alive and a physician, nurse, or healthcare provider violates section    ‑2(d), the woman upon whom the abortion was performed or attempted may obtain appropriate relief through a civil action against any person who committed the violation.

     (b)  Appropriate relief in a civil action under this section shall include:

     (1)  Objective, verifiable money damages associated with the violation of section    -2(d);

     (2)  Damages of up to three times the cost of the abortion or attempted abortion;

     (3)  Punitive damages; and

     (4)  Any other appropriate relief pursuant to applicable law.

     (c)  A criminal conviction under section   -3 shall be admissible in a civil action as prima facie evidence of a failure to provide medically appropriate and reasonable care and treatment to an infant born alive.

     (d)  If a plaintiff prevails in a civil action under this section, the court shall award the plaintiff reasonable attorney's fees.

     (e)  If a defendant prevails in a civil action under this section and the court finds that the plaintiff's suit was frivolous, the court shall award the defendant reasonable attorney's fees.

     (f)  Except as provided in subsection (e), no damages, attorney's fees, or other monetary relief may be assessed in a civil action under this section against the woman upon whom the abortion was performed.

     §   -5  Professional disciplinary action.  Failure to comply with this chapter shall provide the basis for professional disciplinary action under chapters 453 and 457, including the suspension or revocation of the professional license of a physician, licensed nurse, registered nurse, or other licensed or regulated persons.  Any person criminally convicted of a failure to comply with the requirements of this chapter shall automatically have the person's license suspected for a period of no less than one year.

     §   -6  Construction.  Nothing in this chapter shall be construed to:

     (1)  Affirm, deny, expand, or contract any legal status or legal right applicable to natural persons at any point before the person is born alive;

     (2)  Affect existing state or federal laws regarding abortion;

     (3)  Restrict a woman's right to obtain an abortion pursuant to applicable law;

     (4)  Restrict the ability of any licensed physician, nurse, or healthcare provider to perform an abortion in accordance with applicable law;

     (5)  Create or recognize a right to abortion; or

     (6)  Alter generally accepted medical standards."

     SECTION 3.  Section 453-8, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  In addition to any other actions authorized by law, any license to practice medicine and surgery may be revoked, limited, or suspended by the board at any time in a proceeding before the board, or may be denied, for any cause authorized by law, including but not limited to the following:

     (1)  Procuring, or aiding or abetting in procuring, a criminal abortion;

     (2)  Failing to comply with chapter     ;

    [(2)] (3)  Employing any person to solicit patients for one's self;

    [(3)] (4)  Engaging in false, fraudulent, or deceptive advertising, including but not limited to:

          (A)  Making excessive claims of expertise in one or more medical specialty fields;

          (B)  Assuring a permanent cure for an incurable disease; or

          (C)  Making any untruthful and improbable statement in advertising one's medical or surgical practice or business;

    [(4)] (5)  Being habituated to the excessive use of drugs or alcohol; or being addicted to, dependent on, or a habitual user of a narcotic, barbiturate, amphetamine, hallucinogen, or other drug having similar effects;

    [(5)] (6)  Practicing medicine while the ability to practice is impaired by alcohol, drugs, physical disability, or mental instability;

    [(6)] (7)  Procuring a license through fraud, misrepresentation, or deceit, or knowingly permitting an unlicensed person to perform activities requiring a license;

    [(7)] (8)  Professional misconduct, hazardous negligence causing bodily injury to another, or manifest incapacity in the practice of medicine or surgery;

    [(8)] (9)  Incompetence or multiple instances of negligence, including but not limited to the consistent use of medical service, which is inappropriate or unnecessary;

    [(9)] (10)  Conduct or practice contrary to recognized standards of ethics of the medical profession as adopted by the Hawaii Medical Association, the American Medical Association, the Hawaii Association of Osteopathic Physicians and Surgeons, or the American Osteopathic Association;

   [(10)] (11)  Violation of the conditions or limitations upon which a limited or temporary license is issued;

   [(11)] (12)  Revocation, suspension, or other disciplinary action by another state or federal agency of a license, certificate, or medical privilege;

   [(12)] (13)  Conviction, whether by nolo contendere or otherwise, of a penal offense substantially related to the qualifications, functions, or duties of a physician or osteopathic physician, notwithstanding any statutory provision to the contrary;

   [(13)] (14)  Violation of chapter 329, the uniform controlled substances act, or any rule adopted thereunder except as provided in section 329-122;

   [(14)] (15)  Failure to report to the board, in writing, any disciplinary decision issued against the licensee or the applicant in another jurisdiction within thirty days after the disciplinary decision is issued; or

   [(15)] (16)  Submitting to or filing with the board any notice, statement, or other document required under this chapter, which is false or untrue or contains any material misstatement or omission of fact."

     SECTION 4.  Section 457-12, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  In addition to any other actions authorized by law, the board shall have the power to deny, revoke, limit, or suspend any license to practice nursing as a registered nurse or as a licensed practical nurse applied for or issued by the board in accordance with this chapter, and to fine or to otherwise discipline a licensee for any cause authorized by law, including [but not limited to the following]:

     (1)  Fraud or deceit in procuring or attempting to procure a license to practice nursing as a registered nurse or as a licensed practical nurse;

     (2)  Gross immorality;

     (3)  Unfitness or incompetence by reason of negligence, habits, or other causes;

     (4)  Habitual intemperance, addiction to, or dependency on alcohol or other habit-forming substances;

     (5)  Mental incompetence;

     (6)  Unprofessional conduct as defined by the board in accordance with its own rules;

     (7)  Wilful or repeated violation of any of the provisions of this chapter or any rule adopted by the board;

     (8)  Revocation, suspension, limitation, or other disciplinary action by another state of a nursing license;

     (9)  Conviction, whether by nolo contendere or otherwise, of a penal offense substantially related to the qualifications, functions, or duties of a nurse, notwithstanding any statutory provision to the contrary;

    (10)  Failure to report to the board any disciplinary action taken against the licensee in another jurisdiction within thirty days after the disciplinary action becomes final;

    (11)  Submitting to or filing with the board any notice, statement, or other document required under this chapter, which is false or untrue or contains any material misstatement of fact, including a false attestation of compliance with continuing competency requirements;

    (12)  Violation of chapter     ;

   [(12)] (13)  Violation of the conditions or limitations upon which any license is issued; or

   [(13)] (14)  Violation of chapter 329, the uniform controlled substances act, or any rule adopted thereunder except as provided in section 329-122."

     SECTION 5.  Section 709-901, Hawaii Revised Statutes, is amended to read as follows:

     "§709-901  Concealing the corpse of an infant.  (1)  A person commits the offense of concealing the corpse of an infant if the person conceals the corpse of a new-born child with intent to conceal the fact of [its] the child's birth or to prevent a determination of whether [it] the child was born dead or alive.

     (2)  If an abortion as defined in section   -1 is attempted but a live birth occurs, the surviving infant shall be considered a new-born child for purposes of this section.

     [(2)] (3)  Concealing the corpse of an infant is a misdemeanor."

     SECTION 6.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 7.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 8.  This Act shall take effect on July 1, 2023; provided that the amendments made to section 457-12, Hawaii Revised Statutes, by section 4 of this Act shall not be repealed

when that section is reenacted on June 30, 2023, pursuant to section 6 of Act 66, Session Laws of Hawaii 2017.

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

Abortion Survivors; Infants Born Alive; Penalties

 

Description:

Requires medically appropriate and reasonable life-saving and life-sustaining medical care and treatment for all born alive infants.  Establishes civil and criminal penalties.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.