Bill Text: MN HF936 | 2011-2012 | 87th Legislature | Comm Sub
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Abortions at or after 20 weeks postfertilization age prohibited unless exceptions apply, and civil and criminal penalties provided.
Spectrum: Strong Partisan Bill (Republican 32-3)
Status: (Vetoed) 2011-05-25 - Governor's action Veto Chapter 59 [HF936 Detail]
Download: Minnesota-2011-HF936-Comm_Sub.html
Bill Title: Abortions at or after 20 weeks postfertilization age prohibited unless exceptions apply, and civil and criminal penalties provided.
Spectrum: Strong Partisan Bill (Republican 32-3)
Status: (Vetoed) 2011-05-25 - Governor's action Veto Chapter 59 [HF936 Detail]
Download: Minnesota-2011-HF936-Comm_Sub.html
1.1CONFERENCE COMMITTEE REPORT ON H. F. No. 936
1.3relating to health; prohibiting abortions at or after 20 weeks postfertilization age
1.4unless certain exceptions apply; providing civil and criminal penalties;amending
1.5Minnesota Statutes 2010, section 145.4131, subdivision 1; proposing coding for
1.6new law in Minnesota Statutes, chapters 8; 145.
1.7May 17, 2011
1.8The Honorable Kurt Zellers
1.9Speaker of the House of Representatives
1.10The Honorable Michelle L. Fischbach
1.11President of the Senate
1.12We, the undersigned conferees for H. F. No. 936 report that we have agreed upon the
1.13items in dispute and recommend as follows:
1.14That the Senate recede from its amendments and that H. F. No. 936 be further
1.15amended as follows:
1.16Delete everything after the enacting clause and insert:
1.17 "Section 1. SHORT TITLE.
1.18This act may be cited as the "Pain-Capable Unborn Child Protection Act."
1.19 Sec. 2. [8.40] LITIGATION DEFENSE FUND.
1.20(a) There is created in the special revenue fund an account entitled the Pain-Capable
1.21Unborn Child Protection Act litigation account for the purpose of providing funds to pay
1.22for any costs and expenses incurred by the state attorney general in relation to actions
1.23surrounding defense of sections 145.4141 to 145.4148.
1.24(b) The account shall be maintained by the commissioner of management and budget.
1.25(c) The litigation account shall consist of:
1.26(1) appropriations made to the account by the legislature; and
1.27(2) any donations, gifts, or grants made to the account by private citizens or entities.
1.28(d) The litigation account shall retain the interest income derived from the money
1.29credited to the account.
2.1(e) Any funds in the litigation account are appropriated to the attorney general for
2.2the purposes described in paragraph (a).
2.3 Sec. 3. Minnesota Statutes 2010, section 145.4131, subdivision 1, is amended to read:
2.4 Subdivision 1. Forms. (a) Within 90 days of July 1, 1998, the commissioner shall
2.5prepare a reporting form for use by physicians or facilities performing abortions. A copy
2.6of this section shall be attached to the form. A physician or facility performing an abortion
2.7shall obtain a form from the commissioner.
2.8(b) The form shall require the following information:
2.9(1) the number of abortions performed by the physician in the previous calendar
2.10year, reported by month;
2.11(2) the method used for each abortion;
2.12(3) the approximate gestational age expressed in one of the following increments:
2.13(i) less than nine weeks;
2.14(ii) nine to ten weeks;
2.15(iii) 11 to 12 weeks;
2.16(iv) 13 to 15 weeks;
2.17(v) 16 to 20 weeks;
2.18(vi) 21 to 24 weeks;
2.19(vii) 25 to 30 weeks;
2.20(viii) 31 to 36 weeks; or
2.21(ix) 37 weeks to term;
2.22(4) the age of the woman at the time the abortion was performed;
2.23(5) the specific reason for the abortion, including, but not limited to, the following:
2.24(i) the pregnancy was a result of rape;
2.25(ii) the pregnancy was a result of incest;
2.26(iii) economic reasons;
2.27(iv) the woman does not want children at this time;
2.28(v) the woman's emotional health is at stake;
2.29(vi) the woman's physical health is at stake;
2.30(vii) the woman will suffer substantial and irreversible impairment of a major bodily
2.31function if the pregnancy continues;
2.32(viii) the pregnancy resulted in fetal anomalies; or
2.33(ix) unknown or the woman refused to answer;
2.34(6) the number of prior induced abortions;
2.35(7) the number of prior spontaneous abortions;
3.1(8) whether the abortion was paid for by:
3.2(i) private coverage;
3.3(ii) public assistance health coverage; or
3.4(iii) self-pay;
3.5(9) whether coverage was under:
3.6(i) a fee-for-service plan;
3.7(ii) a capitated private plan; or
3.8(iii) other;
3.9(10) complications, if any, for each abortion and for the aftermath of each abortion.
3.10Space for a description of any complications shall be available on the form;and
3.11(11) the medical specialty of the physician performing the abortion.;
3.12(12) whether a determination of probable postfertilization age was made and the
3.13probable postfertilization age determined:
3.14(i) the method used to make such a determination; or
3.15(ii) if a determination was not made prior to performing an abortion, the basis of
3.16the determination that a medical emergency existed; and
3.17(13) for abortions performed after a determination of postfertilization age of 20 or
3.18more weeks, the basis of the determination that the pregnant woman had a condition that
3.19so complicated her medical condition as to necessitate the abortion of her pregnancy to
3.20avert her death or to avert serious risk of substantial and irreversible physical impairment
3.21of a major bodily function, not including psychological or emotional conditions.
3.22 Sec. 4. [145.4141] DEFINITIONS.
3.23 Subdivision 1. Scope. For purposes of sections 145.4141 to 145.4148, the following
3.24terms have the meanings given them.
3.25 Subd. 2. Abortion. "Abortion" means the use or prescription of any instrument,
3.26medicine, drug, or any other substance or device to terminate the pregnancy of a woman
3.27known to be pregnant, with an intention other than to increase the probability of a live
3.28birth; to preserve the life or health of the child after live birth; or to remove a dead unborn
3.29child who died as the result of natural causes in utero, accidental trauma, or a criminal
3.30assault on the pregnant woman or her unborn child; and which causes the premature
3.31termination of the pregnancy.
3.32 Subd. 3. Attempt to perform or induce an abortion. "Attempt to perform or
3.33induce an abortion" means an act, or an omission of a statutorily required act, that, under
3.34the circumstances as the actor believes them to be, constitutes a substantial step in a
4.1course of conduct planned to culminate in the performance or induction of an abortion in
4.2this state in violation of sections 145.4141 to 145.4148.
4.3 Subd. 4. Fertilization. "Fertilization" means the fusion of a human spermatozoon
4.4with a human ovum.
4.5 Subd. 5. Medical emergency. "Medical emergency" means a condition that,
4.6in reasonable medical judgment, so complicates the medical condition of the pregnant
4.7woman that it necessitates the immediate abortion of her pregnancy without first
4.8determining postfertilization age to avert her death or for which the delay necessary to
4.9determine postfertilization age will create serious risk of substantial and irreversible
4.10physical impairment of a major bodily function not including psychological or emotional
4.11conditions. No condition shall be deemed a medical emergency if based on a claim or
4.12diagnosis that the woman will engage in conduct which she intends to result in her death
4.13or in substantial and irreversible physical impairment of a major bodily function.
4.14 Subd. 6. Physician. "Physician" means any person licensed to practice medicine
4.15and surgery or osteopathic medicine and surgery in this state.
4.16 Subd. 7. Postfertilization age. "Postfertilization age" means the age of the unborn
4.17child as calculated from the fusion of a human spermatozoon with a human ovum.
4.18 Subd. 8. Probable postfertilization age of the unborn child. "Probable
4.19postfertilization age of the unborn child" means what, in reasonable medical judgment,
4.20will with reasonable probability be the postfertilization age of the unborn child at the time
4.21the abortion is planned to be performed or induced.
4.22 Subd. 9. Reasonable medical judgment. "Reasonable medical judgment" means a
4.23medical judgment that would be made by a reasonably prudent physician knowledgeable
4.24about the case and the treatment possibilities with respect to the medical conditions
4.25involved.
4.26 Subd. 10. Unborn child or fetus. "Unborn child" or "fetus" means an individual
4.27organism of the species homo sapiens from fertilization until live birth.
4.28 Subd. 11. Woman. "Woman" means a female human being whether or not she
4.29has reached the age of majority.
4.30 Sec. 5. [145.4142] LEGISLATIVE FINDINGS.
4.31(a) The legislature makes the following findings.
4.32(b) Pain receptors (nociceptors) are present throughout an unborn child's entire body
4.33and nerves link these receptors to the brain's thalamus and subcortical plate by 20 weeks.
5.1(c) By eight weeks after fertilization, an unborn child reacts to touch. After 20
5.2weeks an unborn child reacts to stimuli that would be recognized as painful if applied to
5.3an adult human, for example by recoiling.
5.4(d) In the unborn child, application of such painful stimuli is associated with
5.5significant increases in stress hormones known as the stress response.
5.6(e) Subjection to such painful stimuli is associated with long-term harmful
5.7neurodevelopmental effects, such as altered pain sensitivity and, possibly, emotional,
5.8behavioral, and learning disabilities later in life.
5.9(f) For the purposes of surgery on an unborn child, fetal anesthesia is routinely
5.10administered and is associated with a decrease in stress hormones compared to the level
5.11when painful stimuli is applied without anesthesia.
5.12(g) The position, asserted by some medical experts, that an unborn child is incapable
5.13of experiencing pain until a point later in pregnancy than 20 weeks after fertilization
5.14predominately rests on the assumption that the ability to experience pain depends on the
5.15cerebral cortex and requires nerve connections between the thalamus and the cortex.
5.16However, recent medical research and analysis, especially since 2007, provides strong
5.17evidence for the conclusion that a functioning cortex is not necessary to experience pain.
5.18(h) Substantial evidence indicates that children born missing the bulk of the cerebral
5.19cortex, those with hydranencephaly, nevertheless experience pain.
5.20(i) In adults, stimulation or ablation of the cerebral cortex does not alter pain
5.21perception, while stimulation or ablation of the thalamus does.
5.22(j) Substantial evidence indicates that structures used for pain processing in early
5.23development differ from those of adults, using different neural elements available at
5.24specific times during development, such as the subcortical plate, to fulfill the role of
5.25pain processing.
5.26(k) The position asserted by some medical experts, that the unborn child remains in a
5.27coma-like sleep state that precludes the unborn child experiencing pain is inconsistent with
5.28the documented reaction of unborn children to painful stimuli and with the experience of
5.29fetal surgeons who have found it necessary to sedate the unborn child with anesthesia to
5.30prevent the unborn child from thrashing about in reaction to invasive surgery.
5.31(l) Consequently, there is substantial medical evidence that an unborn child is
5.32capable of experiencing pain by 20 weeks after fertilization.
5.33(m) It is the purpose of the state to assert a compelling state interest in protecting the
5.34lives of unborn children from the stage at which substantial medical evidence indicates
5.35that they are capable of feeling pain.
6.1 Sec. 6. [145.4143] DETERMINATION OF POSTFERTILIZATION AGE.
6.2 Subdivision 1. Determination of postfertilization age. Except in the case of a
6.3medical emergency, no abortion shall be performed or induced or be attempted to be
6.4performed or induced unless the physician performing or inducing it has first made a
6.5determination of the probable postfertilization age of the unborn child or relied upon
6.6such a determination made by another physician. In making such a determination, the
6.7physician shall make those inquiries of the woman and perform or cause to be performed
6.8those medical examinations and tests that a reasonably prudent physician, knowledgeable
6.9about the case and the medical conditions involved, would consider necessary to perform
6.10in making an accurate diagnosis with respect to postfertilization age.
6.11 Subd. 2. Unprofessional conduct. Failure by any physician to conform to any
6.12requirement of this section constitutes unprofessional conduct under section 147.091,
6.13paragraph (k).
6.14 Sec. 7. [145.4144] ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS
6.15POSTFERTILIZATION AGE PROHIBITED; CAPABLE OF FEELING PAIN.
6.16 Subdivision 1. Abortion prohibition; exemption. No person shall perform or
6.17induce or attempt to perform or induce an abortion upon a woman when it has been
6.18determined, by the physician performing or inducing or attempting to perform or induce
6.19the abortion, or by another physician upon whose determination that physician relies,
6.20that the probable postfertilization age of the woman's unborn child is 20 or more weeks
6.21unless, in reasonable medical judgment, she has a condition which so complicates her
6.22medical condition as to necessitate the abortion of her pregnancy to avert her death or to
6.23avert serious risk of substantial and irreversible physical impairment of a major bodily
6.24function, not including psychological or emotional conditions. No such condition shall
6.25be deemed to exist if it is based on a claim or diagnosis that the woman will engage in
6.26conduct which she intends to result in her death or in substantial and irreversible physical
6.27impairment of a major bodily function.
6.28 Subd. 2. When abortion not prohibited. When an abortion upon a woman whose
6.29unborn child has been determined to have a probable postfertilization age of 20 or more
6.30weeks is not prohibited by this section, the physician shall terminate the pregnancy in
6.31the manner which, in reasonable medical judgment, provides the best opportunity for
6.32the unborn child to survive unless, in reasonable medical judgment, termination of the
6.33pregnancy in that manner would pose a greater risk either of the death of the pregnant
6.34woman or of the substantial and irreversible physical impairment of a major bodily
6.35function, not including psychological or emotional conditions, of the woman than would
7.1other available methods. No such greater risk shall be deemed to exist if it is based on a
7.2claim or diagnosis that the woman will engage in conduct which she intends to result in
7.3her death or in substantial and irreversible physical impairment of a major bodily function.
7.4 Sec. 8. [145.4145] ENFORCEMENT.
7.5 Subdivision 1. Criminal penalties. A person who intentionally or recklessly
7.6performs or induces or attempts to perform or induce an abortion in violation of sections
7.7145.4141 to 145.4148 shall be guilty of a felony. No penalty may be assessed against the
7.8woman upon whom the abortion is performed or induced or attempted to be performed or
7.9induced.
7.10 Subd. 2. Civil remedies. (a) A woman upon whom an abortion has been performed
7.11or induced in violation of sections 145.4141 to 145.4148, or the father of the unborn
7.12child who was the subject of such an abortion, may maintain an action against the person
7.13who performed or induced the abortion in intentional or reckless violation of sections
7.14145.4141 to 145.4148 for damages. A woman upon whom an abortion has been attempted
7.15in violation of sections 145.4141 to 145.4148 may maintain an action against the person
7.16who attempted to perform or induce the abortion in an intentional or reckless violation of
7.17sections 145.4141 to 145.4148 for damages.
7.18(b) A cause of action for injunctive relief against a person who has intentionally
7.19violated sections 145.4141 to 145.4148 may be maintained by the woman upon whom an
7.20abortion was performed or induced or attempted to be performed or induced in violation of
7.21sections 145.4141 to 145.4148; by a person who is the father of the unborn child subject
7.22to an abortion, parent, sibling, or guardian of, or a current or former licensed health
7.23care provider of, the woman upon whom an abortion has been performed or induced or
7.24attempted to be performed or induced in violation of sections 145.4141 to 145.4148; by a
7.25county attorney with appropriate jurisdiction; or by the attorney general. The injunction
7.26shall prevent the abortion provider from performing or inducing or attempting to perform
7.27or induce further abortions in this state in violation of sections 145.4141 to 145.4148.
7.28(c) If judgment is rendered in favor of the plaintiff in an action described in this
7.29section, the court shall also render judgment for reasonable attorney fees in favor of
7.30the plaintiff against the defendant.
7.31(d) If judgment is rendered in favor of the defendant and the court finds that the
7.32plaintiff's suit was frivolous and brought in bad faith, the court shall also render judgment
7.33for reasonable attorney fees in favor of the defendant against the plaintiff.
8.1(e) No damages or attorney fees may be assessed against the woman upon whom
8.2an abortion was performed or induced or attempted to be performed or induced except
8.3according to paragraph (d).
8.4 Sec. 9. [145.4146] PROTECTION OF PRIVACY IN COURT PROCEEDINGS.
8.5In every civil or criminal proceeding or action brought under the Pain-Capable
8.6Unborn Child Protection Act, the court shall rule on whether the anonymity of a woman
8.7upon whom an abortion has been performed or induced or attempted to be performed
8.8or induced shall be preserved from public disclosure if she does not give her consent
8.9to such disclosure. The court, upon motion or sua sponte, shall make such a ruling
8.10and, upon determining that her anonymity should be preserved, shall issue orders to the
8.11parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of
8.12individuals from courtrooms or hearing rooms to the extent necessary to safeguard her
8.13identity from public disclosure. Each such order shall be accompanied by specific written
8.14findings explaining why the anonymity of the woman should be preserved from public
8.15disclosure, why the order is essential to that end, how the order is narrowly tailored to
8.16serve that interest, and why no reasonable, less restrictive alternative exists. In the absence
8.17of written consent of the woman upon whom an abortion has been performed or induced
8.18or attempted to be performed or induced, anyone, other than a public official, who brings
8.19an action under section 145.4145, subdivision 2, shall do so under a pseudonym. This
8.20section may not be construed to conceal the identity of the plaintiff or of witnesses from
8.21the defendant or from attorneys for the defendant.
8.22 Sec. 10. [145.4147] SEVERABILITY.
8.23If any one or more provisions, sections, subsections, sentences, clauses, phrases,
8.24or words of sections 145.4141 to 145.4148, or the application thereof to any person or
8.25circumstance is found to be unconstitutional, the same is hereby declared to be severable
8.26and the balance of sections 145.4141 to 145.4148 shall remain effective notwithstanding
8.27such unconstitutionality. The legislature hereby declares that it would have passed
8.28sections 145.4141 to 145.4148, and each provision, section, subsection, sentence, clause,
8.29phrase, or word thereof, irrespective of the fact that any one or more provisions, sections,
8.30subsections, sentences, clauses, phrases, or words of sections 145.4141 to 145.4148, or the
8.31application of sections 145.4141 to 145.4148, would be declared unconstitutional."
8.32Delete the title and insert:
8.34relating to health; prohibiting abortions at or after 20 weeks postfertilization age
8.35unless certain exceptions apply; providing civil and criminal penalties;amending
9.1Minnesota Statutes 2010, section 145.4131, subdivision 1; proposing coding for
9.2new law in Minnesota Statutes, chapters 8; 145."
1.3relating to health; prohibiting abortions at or after 20 weeks postfertilization age
1.4unless certain exceptions apply; providing civil and criminal penalties;amending
1.5Minnesota Statutes 2010, section 145.4131, subdivision 1; proposing coding for
1.6new law in Minnesota Statutes, chapters 8; 145.
1.7May 17, 2011
1.8The Honorable Kurt Zellers
1.9Speaker of the House of Representatives
1.10The Honorable Michelle L. Fischbach
1.11President of the Senate
1.12We, the undersigned conferees for H. F. No. 936 report that we have agreed upon the
1.13items in dispute and recommend as follows:
1.14That the Senate recede from its amendments and that H. F. No. 936 be further
1.15amended as follows:
1.16Delete everything after the enacting clause and insert:
1.17 "Section 1. SHORT TITLE.
1.18This act may be cited as the "Pain-Capable Unborn Child Protection Act."
1.19 Sec. 2. [8.40] LITIGATION DEFENSE FUND.
1.20(a) There is created in the special revenue fund an account entitled the Pain-Capable
1.21Unborn Child Protection Act litigation account for the purpose of providing funds to pay
1.22for any costs and expenses incurred by the state attorney general in relation to actions
1.23surrounding defense of sections 145.4141 to 145.4148.
1.24(b) The account shall be maintained by the commissioner of management and budget.
1.25(c) The litigation account shall consist of:
1.26(1) appropriations made to the account by the legislature; and
1.27(2) any donations, gifts, or grants made to the account by private citizens or entities.
1.28(d) The litigation account shall retain the interest income derived from the money
1.29credited to the account.
2.1(e) Any funds in the litigation account are appropriated to the attorney general for
2.2the purposes described in paragraph (a).
2.3 Sec. 3. Minnesota Statutes 2010, section 145.4131, subdivision 1, is amended to read:
2.4 Subdivision 1. Forms. (a) Within 90 days of July 1, 1998, the commissioner shall
2.5prepare a reporting form for use by physicians or facilities performing abortions. A copy
2.6of this section shall be attached to the form. A physician or facility performing an abortion
2.7shall obtain a form from the commissioner.
2.8(b) The form shall require the following information:
2.9(1) the number of abortions performed by the physician in the previous calendar
2.10year, reported by month;
2.11(2) the method used for each abortion;
2.12(3) the approximate gestational age expressed in one of the following increments:
2.13(i) less than nine weeks;
2.14(ii) nine to ten weeks;
2.15(iii) 11 to 12 weeks;
2.16(iv) 13 to 15 weeks;
2.17(v) 16 to 20 weeks;
2.18(vi) 21 to 24 weeks;
2.19(vii) 25 to 30 weeks;
2.20(viii) 31 to 36 weeks; or
2.21(ix) 37 weeks to term;
2.22(4) the age of the woman at the time the abortion was performed;
2.23(5) the specific reason for the abortion, including, but not limited to, the following:
2.24(i) the pregnancy was a result of rape;
2.25(ii) the pregnancy was a result of incest;
2.26(iii) economic reasons;
2.27(iv) the woman does not want children at this time;
2.28(v) the woman's emotional health is at stake;
2.29(vi) the woman's physical health is at stake;
2.30(vii) the woman will suffer substantial and irreversible impairment of a major bodily
2.31function if the pregnancy continues;
2.32(viii) the pregnancy resulted in fetal anomalies; or
2.33(ix) unknown or the woman refused to answer;
2.34(6) the number of prior induced abortions;
2.35(7) the number of prior spontaneous abortions;
3.1(8) whether the abortion was paid for by:
3.2(i) private coverage;
3.3(ii) public assistance health coverage; or
3.4(iii) self-pay;
3.5(9) whether coverage was under:
3.6(i) a fee-for-service plan;
3.7(ii) a capitated private plan; or
3.8(iii) other;
3.9(10) complications, if any, for each abortion and for the aftermath of each abortion.
3.10Space for a description of any complications shall be available on the form;
3.11(11) the medical specialty of the physician performing the abortion
3.12(12) whether a determination of probable postfertilization age was made and the
3.13probable postfertilization age determined:
3.14(i) the method used to make such a determination; or
3.15(ii) if a determination was not made prior to performing an abortion, the basis of
3.16the determination that a medical emergency existed; and
3.17(13) for abortions performed after a determination of postfertilization age of 20 or
3.18more weeks, the basis of the determination that the pregnant woman had a condition that
3.19so complicated her medical condition as to necessitate the abortion of her pregnancy to
3.20avert her death or to avert serious risk of substantial and irreversible physical impairment
3.21of a major bodily function, not including psychological or emotional conditions.
3.22 Sec. 4. [145.4141] DEFINITIONS.
3.23 Subdivision 1. Scope. For purposes of sections 145.4141 to 145.4148, the following
3.24terms have the meanings given them.
3.25 Subd. 2. Abortion. "Abortion" means the use or prescription of any instrument,
3.26medicine, drug, or any other substance or device to terminate the pregnancy of a woman
3.27known to be pregnant, with an intention other than to increase the probability of a live
3.28birth; to preserve the life or health of the child after live birth; or to remove a dead unborn
3.29child who died as the result of natural causes in utero, accidental trauma, or a criminal
3.30assault on the pregnant woman or her unborn child; and which causes the premature
3.31termination of the pregnancy.
3.32 Subd. 3. Attempt to perform or induce an abortion. "Attempt to perform or
3.33induce an abortion" means an act, or an omission of a statutorily required act, that, under
3.34the circumstances as the actor believes them to be, constitutes a substantial step in a
4.1course of conduct planned to culminate in the performance or induction of an abortion in
4.2this state in violation of sections 145.4141 to 145.4148.
4.3 Subd. 4. Fertilization. "Fertilization" means the fusion of a human spermatozoon
4.4with a human ovum.
4.5 Subd. 5. Medical emergency. "Medical emergency" means a condition that,
4.6in reasonable medical judgment, so complicates the medical condition of the pregnant
4.7woman that it necessitates the immediate abortion of her pregnancy without first
4.8determining postfertilization age to avert her death or for which the delay necessary to
4.9determine postfertilization age will create serious risk of substantial and irreversible
4.10physical impairment of a major bodily function not including psychological or emotional
4.11conditions. No condition shall be deemed a medical emergency if based on a claim or
4.12diagnosis that the woman will engage in conduct which she intends to result in her death
4.13or in substantial and irreversible physical impairment of a major bodily function.
4.14 Subd. 6. Physician. "Physician" means any person licensed to practice medicine
4.15and surgery or osteopathic medicine and surgery in this state.
4.16 Subd. 7. Postfertilization age. "Postfertilization age" means the age of the unborn
4.17child as calculated from the fusion of a human spermatozoon with a human ovum.
4.18 Subd. 8. Probable postfertilization age of the unborn child. "Probable
4.19postfertilization age of the unborn child" means what, in reasonable medical judgment,
4.20will with reasonable probability be the postfertilization age of the unborn child at the time
4.21the abortion is planned to be performed or induced.
4.22 Subd. 9. Reasonable medical judgment. "Reasonable medical judgment" means a
4.23medical judgment that would be made by a reasonably prudent physician knowledgeable
4.24about the case and the treatment possibilities with respect to the medical conditions
4.25involved.
4.26 Subd. 10. Unborn child or fetus. "Unborn child" or "fetus" means an individual
4.27organism of the species homo sapiens from fertilization until live birth.
4.28 Subd. 11. Woman. "Woman" means a female human being whether or not she
4.29has reached the age of majority.
4.30 Sec. 5. [145.4142] LEGISLATIVE FINDINGS.
4.31(a) The legislature makes the following findings.
4.32(b) Pain receptors (nociceptors) are present throughout an unborn child's entire body
4.33and nerves link these receptors to the brain's thalamus and subcortical plate by 20 weeks.
5.1(c) By eight weeks after fertilization, an unborn child reacts to touch. After 20
5.2weeks an unborn child reacts to stimuli that would be recognized as painful if applied to
5.3an adult human, for example by recoiling.
5.4(d) In the unborn child, application of such painful stimuli is associated with
5.5significant increases in stress hormones known as the stress response.
5.6(e) Subjection to such painful stimuli is associated with long-term harmful
5.7neurodevelopmental effects, such as altered pain sensitivity and, possibly, emotional,
5.8behavioral, and learning disabilities later in life.
5.9(f) For the purposes of surgery on an unborn child, fetal anesthesia is routinely
5.10administered and is associated with a decrease in stress hormones compared to the level
5.11when painful stimuli is applied without anesthesia.
5.12(g) The position, asserted by some medical experts, that an unborn child is incapable
5.13of experiencing pain until a point later in pregnancy than 20 weeks after fertilization
5.14predominately rests on the assumption that the ability to experience pain depends on the
5.15cerebral cortex and requires nerve connections between the thalamus and the cortex.
5.16However, recent medical research and analysis, especially since 2007, provides strong
5.17evidence for the conclusion that a functioning cortex is not necessary to experience pain.
5.18(h) Substantial evidence indicates that children born missing the bulk of the cerebral
5.19cortex, those with hydranencephaly, nevertheless experience pain.
5.20(i) In adults, stimulation or ablation of the cerebral cortex does not alter pain
5.21perception, while stimulation or ablation of the thalamus does.
5.22(j) Substantial evidence indicates that structures used for pain processing in early
5.23development differ from those of adults, using different neural elements available at
5.24specific times during development, such as the subcortical plate, to fulfill the role of
5.25pain processing.
5.26(k) The position asserted by some medical experts, that the unborn child remains in a
5.27coma-like sleep state that precludes the unborn child experiencing pain is inconsistent with
5.28the documented reaction of unborn children to painful stimuli and with the experience of
5.29fetal surgeons who have found it necessary to sedate the unborn child with anesthesia to
5.30prevent the unborn child from thrashing about in reaction to invasive surgery.
5.31(l) Consequently, there is substantial medical evidence that an unborn child is
5.32capable of experiencing pain by 20 weeks after fertilization.
5.33(m) It is the purpose of the state to assert a compelling state interest in protecting the
5.34lives of unborn children from the stage at which substantial medical evidence indicates
5.35that they are capable of feeling pain.
6.1 Sec. 6. [145.4143] DETERMINATION OF POSTFERTILIZATION AGE.
6.2 Subdivision 1. Determination of postfertilization age. Except in the case of a
6.3medical emergency, no abortion shall be performed or induced or be attempted to be
6.4performed or induced unless the physician performing or inducing it has first made a
6.5determination of the probable postfertilization age of the unborn child or relied upon
6.6such a determination made by another physician. In making such a determination, the
6.7physician shall make those inquiries of the woman and perform or cause to be performed
6.8those medical examinations and tests that a reasonably prudent physician, knowledgeable
6.9about the case and the medical conditions involved, would consider necessary to perform
6.10in making an accurate diagnosis with respect to postfertilization age.
6.11 Subd. 2. Unprofessional conduct. Failure by any physician to conform to any
6.12requirement of this section constitutes unprofessional conduct under section 147.091,
6.13paragraph (k).
6.14 Sec. 7. [145.4144] ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS
6.15POSTFERTILIZATION AGE PROHIBITED; CAPABLE OF FEELING PAIN.
6.16 Subdivision 1. Abortion prohibition; exemption. No person shall perform or
6.17induce or attempt to perform or induce an abortion upon a woman when it has been
6.18determined, by the physician performing or inducing or attempting to perform or induce
6.19the abortion, or by another physician upon whose determination that physician relies,
6.20that the probable postfertilization age of the woman's unborn child is 20 or more weeks
6.21unless, in reasonable medical judgment, she has a condition which so complicates her
6.22medical condition as to necessitate the abortion of her pregnancy to avert her death or to
6.23avert serious risk of substantial and irreversible physical impairment of a major bodily
6.24function, not including psychological or emotional conditions. No such condition shall
6.25be deemed to exist if it is based on a claim or diagnosis that the woman will engage in
6.26conduct which she intends to result in her death or in substantial and irreversible physical
6.27impairment of a major bodily function.
6.28 Subd. 2. When abortion not prohibited. When an abortion upon a woman whose
6.29unborn child has been determined to have a probable postfertilization age of 20 or more
6.30weeks is not prohibited by this section, the physician shall terminate the pregnancy in
6.31the manner which, in reasonable medical judgment, provides the best opportunity for
6.32the unborn child to survive unless, in reasonable medical judgment, termination of the
6.33pregnancy in that manner would pose a greater risk either of the death of the pregnant
6.34woman or of the substantial and irreversible physical impairment of a major bodily
6.35function, not including psychological or emotional conditions, of the woman than would
7.1other available methods. No such greater risk shall be deemed to exist if it is based on a
7.2claim or diagnosis that the woman will engage in conduct which she intends to result in
7.3her death or in substantial and irreversible physical impairment of a major bodily function.
7.4 Sec. 8. [145.4145] ENFORCEMENT.
7.5 Subdivision 1. Criminal penalties. A person who intentionally or recklessly
7.6performs or induces or attempts to perform or induce an abortion in violation of sections
7.7145.4141 to 145.4148 shall be guilty of a felony. No penalty may be assessed against the
7.8woman upon whom the abortion is performed or induced or attempted to be performed or
7.9induced.
7.10 Subd. 2. Civil remedies. (a) A woman upon whom an abortion has been performed
7.11or induced in violation of sections 145.4141 to 145.4148, or the father of the unborn
7.12child who was the subject of such an abortion, may maintain an action against the person
7.13who performed or induced the abortion in intentional or reckless violation of sections
7.14145.4141 to 145.4148 for damages. A woman upon whom an abortion has been attempted
7.15in violation of sections 145.4141 to 145.4148 may maintain an action against the person
7.16who attempted to perform or induce the abortion in an intentional or reckless violation of
7.17sections 145.4141 to 145.4148 for damages.
7.18(b) A cause of action for injunctive relief against a person who has intentionally
7.19violated sections 145.4141 to 145.4148 may be maintained by the woman upon whom an
7.20abortion was performed or induced or attempted to be performed or induced in violation of
7.21sections 145.4141 to 145.4148; by a person who is the father of the unborn child subject
7.22to an abortion, parent, sibling, or guardian of, or a current or former licensed health
7.23care provider of, the woman upon whom an abortion has been performed or induced or
7.24attempted to be performed or induced in violation of sections 145.4141 to 145.4148; by a
7.25county attorney with appropriate jurisdiction; or by the attorney general. The injunction
7.26shall prevent the abortion provider from performing or inducing or attempting to perform
7.27or induce further abortions in this state in violation of sections 145.4141 to 145.4148.
7.28(c) If judgment is rendered in favor of the plaintiff in an action described in this
7.29section, the court shall also render judgment for reasonable attorney fees in favor of
7.30the plaintiff against the defendant.
7.31(d) If judgment is rendered in favor of the defendant and the court finds that the
7.32plaintiff's suit was frivolous and brought in bad faith, the court shall also render judgment
7.33for reasonable attorney fees in favor of the defendant against the plaintiff.
8.1(e) No damages or attorney fees may be assessed against the woman upon whom
8.2an abortion was performed or induced or attempted to be performed or induced except
8.3according to paragraph (d).
8.4 Sec. 9. [145.4146] PROTECTION OF PRIVACY IN COURT PROCEEDINGS.
8.5In every civil or criminal proceeding or action brought under the Pain-Capable
8.6Unborn Child Protection Act, the court shall rule on whether the anonymity of a woman
8.7upon whom an abortion has been performed or induced or attempted to be performed
8.8or induced shall be preserved from public disclosure if she does not give her consent
8.9to such disclosure. The court, upon motion or sua sponte, shall make such a ruling
8.10and, upon determining that her anonymity should be preserved, shall issue orders to the
8.11parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of
8.12individuals from courtrooms or hearing rooms to the extent necessary to safeguard her
8.13identity from public disclosure. Each such order shall be accompanied by specific written
8.14findings explaining why the anonymity of the woman should be preserved from public
8.15disclosure, why the order is essential to that end, how the order is narrowly tailored to
8.16serve that interest, and why no reasonable, less restrictive alternative exists. In the absence
8.17of written consent of the woman upon whom an abortion has been performed or induced
8.18or attempted to be performed or induced, anyone, other than a public official, who brings
8.19an action under section 145.4145, subdivision 2, shall do so under a pseudonym. This
8.20section may not be construed to conceal the identity of the plaintiff or of witnesses from
8.21the defendant or from attorneys for the defendant.
8.22 Sec. 10. [145.4147] SEVERABILITY.
8.23If any one or more provisions, sections, subsections, sentences, clauses, phrases,
8.24or words of sections 145.4141 to 145.4148, or the application thereof to any person or
8.25circumstance is found to be unconstitutional, the same is hereby declared to be severable
8.26and the balance of sections 145.4141 to 145.4148 shall remain effective notwithstanding
8.27such unconstitutionality. The legislature hereby declares that it would have passed
8.28sections 145.4141 to 145.4148, and each provision, section, subsection, sentence, clause,
8.29phrase, or word thereof, irrespective of the fact that any one or more provisions, sections,
8.30subsections, sentences, clauses, phrases, or words of sections 145.4141 to 145.4148, or the
8.31application of sections 145.4141 to 145.4148, would be declared unconstitutional."
8.32Delete the title and insert:
8.34relating to health; prohibiting abortions at or after 20 weeks postfertilization age
8.35unless certain exceptions apply; providing civil and criminal penalties;amending
9.1Minnesota Statutes 2010, section 145.4131, subdivision 1; proposing coding for
9.2new law in Minnesota Statutes, chapters 8; 145."
