January 29, 2009, Introduced by Senators BROWN, SANBORN, BIRKHOLZ, JANSEN, GARCIA, RICHARDVILLE, KAHN, VAN WOERKOM, KUIPERS, CROPSEY, PATTERSON, GEORGE, HARDIMAN, PAPPAGEORGE, GILBERT, ALLEN, BASHAM, BISHOP, OLSHOVE, GLEASON, STAMAS, JELINEK, BARCIA, CASSIS and McMANUS and referred to the Committee on Health Policy.
A bill to amend 1931 PA 328, entitled
"The Michigan penal code,"
(MCL 750.1 to 750.568) by adding section 90h.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 90h. (1) This section shall be known and may be cited as
the "partial-birth abortion ban act".
(2) The legislature finds all of the following:
(a) That partial-birth abortions pose serious risks to the
health of a woman, no credible medical evidence exists that
partial-birth abortions are safe, and partial-birth abortions are
never medically necessary to preserve the health of the mother.
(b) That the state has a compelling interest in preserving and
protecting the life of the mother and the child by prohibiting
partial-birth abortions.
(c) That a prominent medical association has determined that a
partial-birth abortion is not an accepted medical practice, is
broadly disfavored by medical experts and the public, and is
ethically wrong and never the only appropriate procedure; and that
a partial-birth abortion has never been subject to even a minimal
amount of the normal medical practice development, and therefore
the relative advantages and disadvantages of the partial-birth
procedure in specific circumstances remain unknown and no consensus
exists among obstetricians about the performance of partial-birth
abortions.
(d) That the physician who is credited with developing the
partial-birth abortion procedure has testified that he has never
encountered a situation where a partial-birth abortion was
medically necessary to preserve the health of a woman.
(e) That a ban on partial-birth abortions will advance the
health interests of pregnant women seeking to terminate a
pregnancy.
(f) That based on Roe v Wade and Planned Parenthood v Casey, a
governmental interest in protecting the life of a child during the
delivery process arises because a partial-birth abortion involves
the inducement of labor and the beginning of the birth process.
This distinction was recognized in Roe when the court noted,
without comment, that the Texas parturition statute, which
prohibited one from killing a child in a state of being born and
before actual birth, was not under attack. This interest becomes
compelling as the child emerges from the maternal body. A child
that is completely born is a full, legal person entitled to
constitutional protections afforded a person. Partial-birth
abortions involve the killing of a child that is in the process of
being born, in fact mere inches away from becoming a person. Thus,
the government has a heightened interest in protecting the life of
a partially born child.
(g) That, according to a prominent medical association, a
partial-birth abortion is ethically different from other abortion
procedures because a partial-birth abortion normally involves the
killing of a fetus that has completed at least 20 weeks of
gestation outside of the womb. In light of the findings in
subdivision (f), the partial delivery of a fetus gives the fetus an
autonomy which separates it from the right of a woman to choose
treatments for her own body.
(h) That a partial-birth abortion confuses the medical, legal,
and ethical duties of a physician to preserve and promote life. By
performing a partial-birth abortion, the physician acts directly
against his or her duties to preserve and promote the life of a
child, whom he or she had just delivered, all but the head, out of
the womb, in order to end that life.
(i) That, by aborting a child in the manner that purposefully
seeks to kill the child after he or she has begun the process of
birth, a partial-birth abortion procedure undermines the public's
perception of the appropriate role of a physician during the
delivery process and perverts a process during which life is
brought into the world, in order to destroy a partially born child.
(j) That the gruesome and inhumane nature of the partial-birth
abortion procedure and its disturbing similarity to the killing of
a newborn infant promotes a complete disregard for infant human
life that can only be countered by a prohibition of the partial-
birth abortion procedure.
(3) Except as provided in subsection (4), a physician, an
individual performing an act, task, or function under the
delegatory authority of a physician, or any other individual who is
not a physician or not otherwise legally authorized to perform an
abortion who knowingly performs a partial-birth abortion and kills
a human fetus is guilty of a felony punishable by imprisonment for
not more than 2 years or a fine of not more than $50,000.00, or
both.
(4) It is not a violation of subsection (3) if in the
physician's reasonable medical judgment a partial-birth abortion is
necessary to save the life of a mother whose life is endangered by
a physical disorder, physical illness, or physical injury.
(5) The spouse of the mother at the time of the partial-birth
abortion or either parent of the mother if the mother had not
attained the age of 18 at the time of the partial-birth abortion
may file a civil action against the physician or individual
described in subsection (3) for a violation of this section unless
the pregnancy is a result of the plaintiff's criminal conduct or
the plaintiff consented to the partial-birth abortion. A plaintiff
who prevails in a civil action brought pursuant to this section may
recover both of the following:
(a) Actual damages, including damages for emotional distress.
(b) Treble damages for the cost of the partial-birth abortion.
(6) A woman who obtains or seeks to obtain a partial-birth
abortion is not a conspirator to commit a violation of this
section.
(7) As used in this section:
(a) "Partial-birth abortion" means an abortion in which the
physician, an individual acting under the delegatory authority of
the physician, or any other individual performing the abortion
deliberately and intentionally vaginally delivers a living fetus
until, in the case of a headfirst presentation, the entire fetal
head is outside the body of the mother, or in the case of a breech
presentation, any part of the fetal trunk past the naval is outside
the body of the mother, for the purpose of performing an overt act
that the person knows will kill the partially delivered living
fetus, and performs the overt act that kills the partially
delivered living fetus rather than completing the delivery.
(b) "Physician" means an individual licensed by this state to
engage in the practice of medicine or the practice of osteopathic
medicine and surgery under article 15 of the public health code,
1978 PA 368, MCL 333.16101 to 333.18838.