Bill Text: IL HB3158 | 2019-2020 | 101st General Assembly | Introduced


Bill Title: Amends the Illinois Abortion Law of 1975. Provides that except in the case of a medical emergency, no physician or person shall knowingly perform, induce, or attempt to perform an abortion upon a pregnant woman when the probable gestational age of her unborn child has been determined to be at least 20 weeks. Provides that a woman upon whom an abortion in violation of the Act is performed or induced may not be prosecuted under the Act for a conspiracy to violate the 20 week requirement. Provides that the woman, the father of the unborn child if married to the mother at the time she receives an abortion in violation of the Act, or, if the mother has not attained the age of 18 years at the time of the abortion, or both, the maternal grandparents of the unborn child, may in a civil action obtain appropriate relief, unless the pregnancy resulted from the plaintiff's criminal conduct or, if brought by the maternal grandparents, the maternal grandparents consented to the abortion. Provides that a medical facility licensed under the Ambulatory Surgical Treatment Center Act or the Hospital Licensing Act in which an abortion is performed or induced in violation of the Act shall be subject to immediate revocation of its license by the Department of Public Health. Provides that a medical facility licensed under the Ambulatory Surgical Treatment Center Act or the Hospital Licensing Act in which an abortion is performed or induced in violation of the Act shall lose all State funding for 2 years and shall reimburse the State for moneys or grants received from the State by the medical facility for the fiscal year in which the abortion in violation of the Act was performed.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2019-03-29 - Rule 19(a) / Re-referred to Rules Committee [HB3158 Detail]

Download: Illinois-2019-HB3158-Introduced.html


101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB3158

Introduced , by Rep. Jerry Costello, II

SYNOPSIS AS INTRODUCED:
See Index

Amends the Illinois Abortion Law of 1975. Provides that except in the case of a medical emergency, no physician or person shall knowingly perform, induce, or attempt to perform an abortion upon a pregnant woman when the probable gestational age of her unborn child has been determined to be at least 20 weeks. Provides that a woman upon whom an abortion in violation of the Act is performed or induced may not be prosecuted under the Act for a conspiracy to violate the 20 week requirement. Provides that the woman, the father of the unborn child if married to the mother at the time she receives an abortion in violation of the Act, or, if the mother has not attained the age of 18 years at the time of the abortion, or both, the maternal grandparents of the unborn child, may in a civil action obtain appropriate relief, unless the pregnancy resulted from the plaintiff's criminal conduct or, if brought by the maternal grandparents, the maternal grandparents consented to the abortion. Provides that a medical facility licensed under the Ambulatory Surgical Treatment Center Act or the Hospital Licensing Act in which an abortion is performed or induced in violation of the Act shall be subject to immediate revocation of its license by the Department of Public Health. Provides that a medical facility licensed under the Ambulatory Surgical Treatment Center Act or the Hospital Licensing Act in which an abortion is performed or induced in violation of the Act shall lose all State funding for 2 years and shall reimburse the State for moneys or grants received from the State by the medical facility for the fiscal year in which the abortion in violation of the Act was performed.
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CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY
FISCAL NOTE ACT MAY APPLY

A BILL FOR

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1 AN ACT concerning criminal law.
2 Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4 Section 5. The Illinois Abortion Law of 1975 is amended by
5changing Sections 2, 5, 10, and 14 and by adding Sections 1.1,
61.2, 11.2, 11.3, 11.4, and 11.5 as follows:
7 (720 ILCS 510/1.1 new)
8 Sec. 1.1. Legislative findings and purposes.
9 (1) The General Assembly of the State of Illinois does
10solemnly declare and find that:
11 (a) Abortion can cause serious physical and
12 psychological (both short-term and long-term)
13 complications for women, including but not limited to:
14 uterine perforation, uterine scarring, cervical
15 perforation or other injury, infection, bleeding,
16 hemorrhage, blood clots, failure to actually terminate the
17 pregnancy, incomplete abortion (retained tissue), pelvic
18 inflammatory disease, endometritis, missed ectopic
19 pregnancy, cardiac arrest, respiratory arrest, renal
20 failure, metabolic disorder, shock, embolism, coma,
21 placenta previa in subsequent pregnancies, preterm birth
22 in subsequent pregnancies, free fluid in the abdomen, organ
23 damage, adverse reactions to anesthesia and other drugs,

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1 psychological or emotional complications including
2 depression, anxiety, sleeping disorders, an increased risk
3 of breast cancer, and death.
4 (b) Abortion has a higher medical risk when the
5 procedure is performed later in pregnancy. Compared to an
6 abortion at 8 weeks gestation or earlier, the relative risk
7 increases exponentially at higher gestations (L. Bartlett
8 et al., Risk factors for legal induced abortion-related
9 mortality in the United States, OBSTETRICS & GYNECOLOGY
10 103(4):729 (2004)).
11 (c) In fact, the incidence of major complications is
12 highest after 20 weeks of gestation (J. Pregler & A.
13 DeCherney, WOMEN'S HEALTH: PRINCIPLES AND CLINICAL
14 PRACTICE 232 (2002)).
15 (d) According to the Alan Guttmacher Institute, the
16 risk of death associated with abortion increases with the
17 length of pregnancy, from one death for every one million
18 abortions at or before eight weeks gestation to one per
19 29,000 abortions at 16 to 20 weeks gestation and one per
20 11,000 abortions at 21 or more weeks gestation (citing L.
21 Bartlett et al., Risk factors for legal induced
22 abortion-related mortality in the United States,
23 OBSTETRICS & GYNECOLOGY 103(4):729737 (2004)).
24 (e) After the first trimester, the risk of hemorrhage
25 from an abortion, in particular, is greater, and the
26 resultant complications may require a hysterectomy, other

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1 reparative surgery, or a blood transfusion.
2 (f) The State of Illinois has a legitimate concern for
3 the public's health and safety (Williamson v. Lee Optical,
4 348 U.S. 483, 486 (1955)).
5 (g) The State of Illinois "has legitimate interests
6 from the outset of pregnancy in protecting the health of
7 women" (Planned Parenthood of Southeastern Pennsylvania v.
8 Casey, 505 U.S. 833, 847 (1992)). More specifically, the
9 State of Illinois "has a legitimate concern with the health
10 of women who undergo abortions" (Akron v. Akron Ctr. for
11 Reproductive Health, Inc., 462 U.S. 416, 428-29 (1983)).
12 (h) In addition, there is substantial and
13 well-documented medical evidence that an unborn child by at
14 least 20 weeks gestation has the capacity to feel pain
15 during an abortion (K. Anand, Pain and its effects in the
16 human neonate and fetus, N.E.J.M. 317:1321 (1987)).
17 (i) Pain receptors (nociceptors) are present
18 throughout the unborn child's entire body no later than 18
19 weeks gestation.
20 (j) By 10 weeks gestation, the unborn child reacts to
21 touch.
22 (k) In the unborn child, application of such painful
23 stimuli is associated with significant increases in stress
24 hormones known as the stress response.
25 (l) Subjection to such painful stimuli is associated
26 with long-term harmful neurodevelopmental effects, such as

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1 altered pain sensitivity and, possibly, emotional,
2 behavioral, and learning disabilities later in life.
3 (m) For the purposes of surgery on unborn children,
4 fetal anesthesia is routinely administered and is
5 associated with a decrease in stress hormones compared to
6 their level when painful stimuli are applied without the
7 anesthesia.
8 (n) The position, asserted by some medical experts,
9 that the unborn child is incapable of experiencing pain
10 until a point later in pregnancy than 20 weeks gestation
11 predominantly rests on the assumption that the ability to
12 experience pain depends on the cerebral cortex and requires
13 nerve connections between the thalamus and the cortex.
14 However, recent medical research and analysis, especially
15 since 2007, provides strong evidence for the conclusion
16 that a functioning cortex is not necessary to experience
17 pain.
18 (o) Substantial evidence indicates that children born
19 missing the bulk of the cerebral cortex, those with
20 hydranencephaly, nevertheless experience pain.
21 (p) In adults, stimulation or ablation of the cerebral
22 cortex does not alter pain perception, while stimulation or
23 ablation of the thalamus does.
24 (q) Substantial evidence indicates that structures
25 used for pain processing in early development differ from
26 those of adults, using different neural elements available

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1 at specific times during development, such as the
2 subcortical plate, to fulfill the role of pain processing.
3 (r) The position, asserted by some medical experts,
4 that the unborn child remains in a coma-like sleep state
5 that precludes the unborn child experiencing pain is
6 inconsistent with the documented reaction of unborn
7 children to painful stimuli and with the experience of
8 fetal surgeons who have found it necessary to sedate the
9 unborn child with anesthesia to prevent the unborn child
10 from thrashing about in reaction to invasive surgery.
11 (2) Based on the findings in subsection (1) of this
12Section, the General Assembly's purposes in enacting this
13amendatory Act of the 101st General Assembly are to:
14 (a) Based on the documented risks to women's health,
15 prohibit abortions at or after 20 weeks gestation, except
16 in cases of a medical emergency.
17 (b) Prohibit abortions at or after 20 weeks gestation,
18 in part, because of the pain felt by an unborn child.
19 (c) Define "medical emergency" to encompass
20 "significant health risks", namely only those
21 circumstances in which a pregnant woman's life or a major
22 bodily function is threatened (Gonzales v. Carhart, 550
23 U.S. 124, 161 (2007)).
24 (720 ILCS 510/1.2 new)
25 Sec. 1.2. Construction.

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1 (a) Nothing in this Act shall be construed as creating or
2recognizing a right to an abortion.
3 (b) It is not the intention of this Act to make lawful an
4abortion that is currently unlawful.
5 (720 ILCS 510/2) (from Ch. 38, par. 81-22)
6 Sec. 2. Unless the language or context clearly indicates a
7different meaning is intended, the following words or phrases
8for the purpose of this Law shall be given the meaning ascribed
9to them:
10 (1) "Viability" means that stage of fetal development when,
11in the medical judgment of the attending physician based on the
12particular facts of the case before him, there is a reasonable
13likelihood of sustained survival of the fetus outside the womb,
14with or without artificial support.
15 (2) "Physician" means any person licensed to practice
16medicine in all its branches under the Illinois Medical
17Practice Act of 1987, as amended, including a doctor of
18osteopathy.
19 (3) "Department" means the Department of Public Health,
20State of Illinois.
21 (4) "Abortion" means the use of any instrument, medicine,
22drug or any other substance or device to terminate the
23pregnancy of a woman known to be pregnant with an intention
24other than to increase the probability of a live birth, to
25preserve the life or health of the child after live birth, or

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1to remove a dead fetus.
2 (5) "Fertilization" and "conception" each mean the
3fertilization of a human ovum by a human sperm, which shall be
4deemed to have occurred at the time when it is known a
5spermatozoon has penetrated the cell membrane of the ovum.
6 (6) "Fetus" and "unborn child" each mean an individual
7organism of the species homo sapiens from fertilization until
8live birth.
9 (7) "Abortifacient" means any instrument, medicine, drug,
10or any other substance or device which is known to cause fetal
11death when employed in the usual and customary use for which it
12is manufactured, whether or not the fetus is known to exist
13when such substance or device is employed.
14 (8) "Born alive", "live born", and "live birth", when
15applied to an individual organism of the species homo sapiens,
16each mean he or she was completely expelled or extracted from
17his or her mother and after such separation breathed or showed
18evidence of any of the following: beating of the heart,
19pulsation of the umbilical cord, or definite movement of
20voluntary muscles, irrespective of the duration of pregnancy
21and whether or not the umbilical cord has been cut or the
22placenta is attached.
23 (9) "Attempt to perform" means an act or omission of a
24statutorily required act that, under the circumstances as the
25actor believes them to be, constitutes a substantial step in a
26course of conduct planned to culminate in the performance or

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1induction of an abortion.
2 (10) "Conception" means the fusion of a human spermatozoon
3with a human ovum.
4 (11) "Gestational age" means the time that has elapsed
5since the first day of the woman's last menstrual period.
6 (12) "Major bodily function" includes, but is not limited
7to, functions of the immune system, normal cell growth, and
8digestive, bowel, bladder, neurological, brain, respiratory,
9circulatory, endocrine, and reproductive functions.
10 (13) "Medical facility" means any public or private
11hospital, clinic, center, medical school, medical training
12institution, healthcare facility, physician's office,
13infirmary, or dispensary.
14 (14) "Pregnant" or "pregnancy" means that female
15reproductive condition of having an unborn child in the woman's
16uterus.
17 (15) "Probable gestational age" means what, in reasonable
18medical judgment, will with reasonable probability be the
19gestational age of the unborn child at the time the abortion is
20considered, performed, or attempted.
21 (16) "Reasonable medical judgment" means that medical
22judgment that would be made by a reasonably prudent physician,
23knowledgeable about the case and the treatment possibilities
24with respect to the medical condition or conditions involved.
25(Source: P.A. 85-1209.)

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1 (720 ILCS 510/5) (from Ch. 38, par. 81-25)
2 Sec. 5. (1) When the fetus is viable no abortion shall be
3performed unless in the medical judgment of the attending or
4referring physician, based on the particular facts of the case
5before him, it is necessary to preserve the life or health of
6the mother. Intentional, knowing, or reckless failure to
7conform to the requirements of subsection (1) of Section 5 is a
8Class 2 felony.
9 (2) When the fetus is viable the physician shall certify in
10writing, on a form prescribed by the Department under Section
1110 of this Law, the medical indications which, in his medical
12judgment based on the particular facts of the case before him,
13warrant performance of the abortion to preserve the life or
14health of the mother.
15 (3) Except in the case of a medical emergency as
16specifically defined in subsection (5), no abortion shall be
17performed, induced, or attempted unless the attending or
18referring physician has first made a determination of the
19probable gestational age of the unborn child. In making the
20determination, the attending or referring physician shall make
21the inquiries of the pregnant woman and perform or cause to be
22performed all the medical examinations, imaging studies, and
23tests as a reasonably prudent physician, knowledgeable about
24the medical facts and conditions of both the woman and the
25unborn child involved, would consider necessary to perform and
26consider in making an accurate diagnosis with respect to

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1gestational age.
2 (4) Except in the case of a medical emergency as
3specifically defined in subsection (5), no physician or person
4shall knowingly perform, induce, or attempt to perform an
5abortion upon a pregnant woman when the probable gestational
6age of her unborn child has been determined to be at least 20
7weeks. Intentional, knowing, or reckless failure to conform to
8the requirements of this subsection (4) is a Class 2 felony.
9 (5) For the purposes of this Act only, "medical emergency"
10means a condition in which an abortion is necessary to preserve
11the life of the pregnant woman whose life is endangered by a
12physical disorder, physical illness, or physical injury,
13including a life-endangering physical condition caused by or
14arising from the pregnancy itself, or when continuation of the
15pregnancy will create a serious risk of substantial and
16irreversible impairment of a major bodily function (as
17specifically defined in subsection (12) of Section 2) of the
18pregnant woman.
19 (6) Any physician who performs an abortion under subsection
20(5) of this Section shall certify in writing, on a form
21prescribed by the Department under Section 10 of this Law, the
22reason or reasons for the determination that a medical
23emergency existed. The physician and the medical facility shall
24retain a copy of the written reports required under this
25Section for not less than 5 years.
26 Failure to report under this Section does not subject the

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1physician to criminal or civil penalties under Sections 11 and
211.3 of this Act. Subsection (5) does not preclude sanctions,
3disciplinary action, or any other appropriate action by the
4Illinois State Medical Disciplinary Board.
5(Source: P.A. 83-1128.)
6 (720 ILCS 510/10) (from Ch. 38, par. 81-30)
7 Sec. 10. A report of each abortion performed shall be made
8to the Department on forms prescribed by it. Such report forms
9shall not identify the patient by name, but by an individual
10number to be noted in the patient's permanent record in the
11possession of the physician, and shall include information
12concerning:
13 (1) Identification of the physician who performed the
14 abortion and the facility where the abortion was performed
15 and a patient identification number;
16 (2) State in which the patient resides;
17 (3) Patient's date of birth, race and marital status;
18 (4) Number of prior pregnancies;
19 (5) Date of last menstrual period;
20 (6) Type of abortion procedure performed;
21 (7) Complications and whether the abortion resulted in
22 a live birth;
23 (8) The date the abortion was performed;
24 (9) Medical indications for any abortion performed
25 when the fetus was viable;

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1 (10) The information required by Sections 6(1)(b) and
2 6(4)(b) of this Act, if applicable;
3 (11) Basis for any medical judgment that a medical
4 emergency existed when required under Sections 5(6),
5 6(2)(a) and 6(6) and when required to be reported in
6 accordance with this Section by any provision of this Law;
7 and
8 (12) The pathologist's test results pursuant to
9 Section 12 of this Act.
10 Such form shall be completed by the hospital or other
11licensed facility, signed by the physician who performed the
12abortion or pregnancy termination, and transmitted to the
13Department not later than 10 days following the end of the
14month in which the abortion was performed.
15 In the event that a complication of an abortion occurs or
16becomes known after submission of such form, a correction using
17the same patient identification number shall be submitted to
18the Department within 10 days of its becoming known.
19 The Department may prescribe rules and regulations
20regarding the administration of this Law and shall prescribe
21regulations to secure the confidentiality of the woman's
22identity in the information to be provided under the "Vital
23Records Act". All reports received by the Department shall be
24treated as confidential and the Department shall secure the
25woman's anonymity. Such reports shall be used only for
26statistical purposes.

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1 Upon 30 days public notice, the Department is empowered to
2require reporting of any additional information which, in the
3sound discretion of the Department, is necessary to develop
4statistical data relating to the protection of maternal or
5fetal life or health, or is necessary to enforce the provisions
6of this Law, or is necessary to develop useful criteria for
7medical decisions. The Department shall annually report to the
8General Assembly all statistical data gathered under this Law
9and its recommendations to further the purpose of this Law.
10 The requirement for reporting to the General Assembly shall
11be satisfied by filing copies of the report as required by
12Section 3.1 of the General Assembly Organization Act, and
13filing such additional copies with the State Government Report
14Distribution Center for the General Assembly as is required
15under paragraph (t) of Section 7 of the State Library Act.
16(Source: P.A. 100-1148, eff. 12-10-18.)
17 (720 ILCS 510/11.2 new)
18 Sec. 11.2. Prosecutorial exclusion. A woman upon whom an
19abortion in violation of this Act is performed or induced may
20not be prosecuted under this Act for a conspiracy to violate
21subsection (4) of Section 5.
22 (720 ILCS 510/11.3 new)
23 Sec. 11.3. Civil remedies.
24 (1) The woman, the father of the unborn child if married to

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1the mother at the time she receives an abortion in violation of
2this Act, or, if the mother has not attained the age of 18
3years at the time of the abortion, or both, the maternal
4grandparents of the unborn child, may in a civil action obtain
5appropriate relief, unless the pregnancy resulted from the
6plaintiff's criminal conduct or, if brought by the maternal
7grandparents, the maternal grandparents consented to the
8abortion.
9 (2) The relief shall include:
10 (a) money damages for all psychological and physical
11 injuries occasioned by the violation of this Act; and
12 (b) statutory damages equal to 3 times the cost of the
13 abortion performed in violation of this Act.
14 (720 ILCS 510/11.4 new)
15 Sec. 11.4. Review by Medical Board.
16 (1) A physician defendant accused of violating this Act may
17seek a hearing before the Illinois State Medical Disciplinary
18Board as to whether the physician's conduct was necessary to
19save the life of the mother whose life was endangered by a
20physical disorder, physical illness, or physical injury,
21including a life-endangering physical condition caused by or
22arising from the pregnancy itself; or as to whether the
23continuation of the pregnancy would have created a serious risk
24of substantial and irreversible impairment of a major bodily
25function (as specifically defined in subsection (12) of Section

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12) of the pregnant woman, or both.
2 (2) The findings on this issue are admissible at the
3criminal and civil trials of the physician defendant. Upon a
4motion of the physician defendant, the court shall delay the
5beginning of the trial or trials for not more than 30 days to
6permit the hearing to take place.
7 (720 ILCS 510/11.5 new)
8 Sec. 11.5. Penalties for medical facilities.
9 (1) A medical facility licensed under the Ambulatory
10Surgical Treatment Center Act or the Hospital Licensing Act in
11which an abortion is performed or induced in violation of this
12Act shall be subject to immediate revocation of its license by
13the Department.
14 (2) A medical facility licensed under the Ambulatory
15Surgical Treatment Center Act or the Hospital Licensing Act in
16which an abortion is performed or induced in violation of this
17Act shall lose all State funding for 2 years and shall
18reimburse the State for moneys or grants received by the
19medical facility from the State for the fiscal year in which
20the abortion in violation of this Act was performed.
21 (720 ILCS 510/14) (from Ch. 38, par. 81-34)
22 Sec. 14. (1) If any provision, word, phrase or clause of
23this Act or the application thereof to any person or
24circumstance shall be held invalid, such invalidity shall not

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1affect the provisions, words, phrases, clauses or application
2of this Act which can be given effect without the invalid
3provision, word, phrase, clause, or application, and to this
4end the provisions, words, phrases, and clauses of this Act are
5declared to be severable.
6 (2) Within 60 days from the time this Section becomes law,
7the Department shall issue regulations pursuant to Section 10.
8Insofar as Section 10 requires registration under the "Vital
9Records Act", it shall not take effect until such regulations
10are issued. The Department shall make available the forms
11required under Section 10 within 30 days of the time this
12Section becomes law. No requirement that any person report
13information to the Department shall become effective until the
14Department has made available the forms required under Section
1510. All other provisions of this amended Law shall take effect
16immediately upon enactment.
17 (3) The General Assembly, by joint resolution, may appoint
18one or more of its members, who sponsored or cosponsored this
19amendatory Act of the 101st General Assembly in his or her
20official capacity, to intervene as a matter of right in any
21case in which the constitutionality of this amendatory Act of
22the 101st General Assembly is challenged.
23(Source: P.A. 83-1128.)

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1 INDEX
2 Statutes amended in order of appearance