Bill Text: MN SF2940 | 2013-2014 | 88th Legislature | Introduced
Bill Title: Pain-Capable Unborn Child Protection Act
Spectrum: Partisan Bill (Republican 4-0)
Status: (Introduced - Dead) 2014-04-01 - Referred to Health, Human Services and Housing [SF2940 Detail]
Download: Minnesota-2013-SF2940-Introduced.html
1.2relating to health; prohibiting abortions at or after 20 weeks postfertilization
1.3age unless certain exceptions apply; providing civil and criminal penalties;
1.4appropriating money;amending Minnesota Statutes 2012, section 145.4131,
1.5subdivision 1; proposing coding for new law in Minnesota Statutes, chapters 8;
1.6145.
1.7BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.8 Section 1. SHORT TITLE.
1.9This act may be cited as the "Pain-Capable Unborn Child Protection Act."
1.10 Sec. 2. [8.40] LITIGATION DEFENSE FUND.
1.11(a) There is created in the special revenue fund an account entitled the Pain-Capable
1.12Unborn Child Protection Act litigation account for the purpose of providing funds to
1.13pay for any costs and expenses incurred by the attorney general in relation to actions
1.14surrounding defense of sections 145.4141 to 145.4147.
1.15(b) The account shall be maintained by the commissioner of management and budget.
1.16(c) The litigation account shall consist of:
1.17(1) appropriations made to the account by the legislature; and
1.18(2) any donations, gifts, or grants made to the account by private citizens or entities.
1.19(d) The litigation account shall retain the interest income derived from the money
1.20credited to the account.
1.21(e) Any funds in the litigation account are appropriated to the attorney general for
1.22the purposes described in paragraph (a).
1.23 Sec. 3. Minnesota Statutes 2012, section 145.4131, subdivision 1, is amended to read:
2.1 Subdivision 1. Forms. (a) Within 90 days of July 1, 1998, the commissioner shall
2.2prepare a reporting form for use by physicians or facilities performing abortions. A copy
2.3of this section shall be attached to the form. A physician or facility performing an abortion
2.4shall obtain a form from the commissioner.
2.5(b) The form shall require the following information:
2.6(1) the number of abortions performed by the physician in the previous calendar
2.7year, reported by month;
2.8(2) the method used for each abortion;
2.9(3) the approximate gestational age expressed in one of the following increments:
2.10(i) less than nine weeks;
2.11(ii) nine to ten weeks;
2.12(iii) 11 to 12 weeks;
2.13(iv) 13 to 15 weeks;
2.14(v) 16 to 20 weeks;
2.15(vi) 21 to 24 weeks;
2.16(vii) 25 to 30 weeks;
2.17(viii) 31 to 36 weeks; or
2.18(ix) 37 weeks to term;
2.19(4) the age of the woman at the time the abortion was performed;
2.20(5) the specific reason for the abortion, including, but not limited to, the following:
2.21(i) the pregnancy was a result of rape;
2.22(ii) the pregnancy was a result of incest;
2.23(iii) economic reasons;
2.24(iv) the woman does not want children at this time;
2.25(v) the woman's emotional health is at stake;
2.26(vi) the woman's physical health is at stake;
2.27(vii) the woman will suffer substantial and irreversible impairment of a major bodily
2.28function if the pregnancy continues;
2.29(viii) the pregnancy resulted in fetal anomalies; or
2.30(ix) unknown or the woman refused to answer;
2.31(6) the number of prior induced abortions;
2.32(7) the number of prior spontaneous abortions;
2.33(8) whether the abortion was paid for by:
2.34(i) private coverage;
2.35(ii) public assistance health coverage; or
2.36(iii) self-pay;
3.1(9) whether coverage was under:
3.2(i) a fee-for-service plan;
3.3(ii) a capitated private plan; or
3.4(iii) other;
3.5(10) complications, if any, for each abortion and for the aftermath of each abortion.
3.6Space for a description of any complications shall be available on the form;and
3.7(11) the medical specialty of the physician performing the abortion.;
3.8(12) whether a determination of probable postfertilization age was made and the
3.9probable postfertilization age determined:
3.10(i) the method used to make such a determination; or
3.11(ii) if a determination was not made prior to performing an abortion, the basis of
3.12the determination that a medical emergency existed; and
3.13(13) for abortions performed after a determination of postfertilization age of 20 or
3.14more weeks, the basis of the determination that the pregnant woman had a condition that
3.15so complicated the woman's medical condition so as to necessitate the abortion of the
3.16woman's pregnancy to avert the woman's death or to avert serious risk of substantial and
3.17irreversible physical impairment of a major bodily function, not including psychological
3.18or emotional conditions.
3.19 Sec. 4. [145.4141] DEFINITIONS.
3.20 Subdivision 1. Scope. For purposes of sections 145.4141 to 145.4147, the following
3.21terms have the meanings given them.
3.22 Subd. 2. Abortion. "Abortion" means the use or prescription of any instrument,
3.23medicine, drug, or any other substance or device to terminate the pregnancy of a woman
3.24known to be pregnant, with an intention other than to increase the probability of a live
3.25birth; to preserve the life or health of the child after live birth; or to remove a dead unborn
3.26child who died as the result of natural causes in utero, accidental trauma, or a criminal
3.27assault on the pregnant woman or her unborn child; and which causes the premature
3.28termination of the pregnancy.
3.29 Subd. 3. Attempt to perform or induce an abortion. "Attempt to perform or
3.30induce an abortion" means an act, or an omission of a statutorily required act, that, under
3.31the circumstances as the actor believes them to be, constitutes a substantial step in a
3.32course of conduct planned to culminate in the performance or induction of an abortion in
3.33this state in violation of sections 145.4141 to 145.4147.
3.34 Subd. 4. Fertilization. "Fertilization" means the fusion of a human spermatozoon
3.35with a human ovum.
4.1 Subd. 5. Medical emergency. "Medical emergency" means a condition that, in
4.2reasonable medical judgment, so complicates the medical condition of the pregnant woman
4.3that it necessitates the immediate abortion of her pregnancy without first determining
4.4postfertilization age to avert her death or for which the delay necessary to determine
4.5postfertilization age will create serious risk of substantial and irreversible physical
4.6impairment of a major bodily function not including psychological or emotional conditions.
4.7No condition shall be deemed a medical emergency if based on a claim or diagnosis that
4.8the woman will engage in conduct which the woman intends to result in the woman's death
4.9or in substantial and irreversible physical impairment of a major bodily function.
4.10 Subd. 6. Physician. "Physician" means any person licensed to practice medicine
4.11and surgery or osteopathic medicine and surgery in this state.
4.12 Subd. 7. Postfertilization age. "Postfertilization age" means the age of the unborn
4.13child as calculated from the fusion of a human spermatozoon with a human ovum.
4.14 Subd. 8. Probable postfertilization age of the unborn child. "Probable
4.15postfertilization age of the unborn child" means what will, in reasonable medical
4.16judgment, with a reasonable probability be the postfertilization age of the unborn child at
4.17the time the abortion is planned to be performed or induced.
4.18 Subd. 9. Reasonable medical judgment. "Reasonable medical judgment" means a
4.19medical judgment that would be made by a reasonably prudent physician knowledgeable
4.20about the case and the treatment possibilities with respect to the medical conditions
4.21involved.
4.22 Subd. 10. Unborn child or fetus. "Unborn child" or "fetus" means an individual
4.23organism of the species homo sapiens from fertilization until live birth.
4.24 Subd. 11. Woman. "Woman" means a female human being whether or not the
4.25female has reached the age of majority.
4.26 Sec. 5. [145.4142] LEGISLATIVE FINDINGS.
4.27(a) The legislature makes the following findings.
4.28(b) Pain receptors, nociceptors, are present throughout an unborn child's entire body
4.29and nerves link these receptors to the brain's thalamus and subcortical plate by 20 weeks.
4.30(c) By eight weeks after fertilization, an unborn child reacts to touch. After 20
4.31weeks an unborn child reacts to stimuli that would be recognized as painful if applied to
4.32an adult human, for example by recoiling.
4.33(d) In the unborn child, application of such painful stimuli is associated with
4.34significant increases in stress hormones known as the stress response.
5.1(e) Subjection to such painful stimuli is associated with long-term harmful
5.2neurodevelopmental effects, such as altered pain sensitivity and possibly emotional,
5.3behavioral, and learning disabilities later in life.
5.4(f) For the purposes of surgery on an unborn child, fetal anesthesia is routinely
5.5administered and is associated with a decrease in stress hormones compared to the level of
5.6stress hormones when painful stimuli is applied without anesthesia.
5.7(g) The position asserted by some medical experts that an unborn child is incapable
5.8of experiencing pain until a point later in pregnancy than 20 weeks after fertilization
5.9predominately rests on the assumption that the ability to experience pain depends on the
5.10cerebral cortex and requires nerve connections between the thalamus and the cortex.
5.11However, recent medical research and analysis, especially since 2007, provides strong
5.12evidence for the conclusion that a functioning cortex is not necessary to experience pain.
5.13(h) Substantial evidence indicates that children born missing the bulk of the cerebral
5.14cortex, those with hydranencephaly, nevertheless experience pain.
5.15(i) In adults, stimulation or ablation of the cerebral cortex does not alter pain
5.16perception, while stimulation or ablation of the thalamus does.
5.17(j) Substantial evidence indicates that structures used for pain processing in early
5.18development differ from those of adults, using different neural elements available at
5.19specific times during development, such as the subcortical plate, to fulfill the role of
5.20pain processing.
5.21(k) The position asserted by some medical experts that the unborn child remains in a
5.22coma-like sleep state that precludes the unborn child experiencing pain is inconsistent with
5.23the documented reaction of unborn children to painful stimuli and with the experience of
5.24fetal surgeons who have found it necessary to sedate the unborn child with anesthesia to
5.25prevent the unborn child from thrashing about in reaction to invasive surgery.
5.26(l) Consequently, there is substantial medical evidence that an unborn child is
5.27capable of experiencing pain by 20 weeks after fertilization.
5.28(m) It is the purpose of the state to assert a compelling state interest in protecting the
5.29lives of unborn children from the stage at which substantial medical evidence indicates
5.30that they are capable of feeling pain.
5.31 Sec. 6. [145.4143] DETERMINATION OF POSTFERTILIZATION AGE.
5.32 Subdivision 1. Determination of postfertilization age. Except in the case of a
5.33medical emergency, no abortion shall be performed or induced or be attempted to be
5.34performed or induced unless the physician performing or inducing it has first made a
5.35determination of the probable postfertilization age of the unborn child or relied upon
6.1such a determination made by another physician. In making such a determination, the
6.2physician shall make those inquiries of the woman and perform or cause to be performed
6.3those medical examinations and tests that a reasonably prudent physician, knowledgeable
6.4about the case and the medical conditions involved, would consider necessary to perform
6.5in making an accurate diagnosis with respect to postfertilization age.
6.6 Subd. 2. Unprofessional conduct. Failure by any physician to conform to any
6.7requirement of this section constitutes unprofessional conduct under section 147.091,
6.8subdivision 1, paragraph (k).
6.9 Sec. 7. [145.4144] ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS
6.10POSTFERTILIZATION AGE PROHIBITED.
6.11 Subdivision 1. Abortion prohibition; exemption. No person shall perform or
6.12induce or attempt to perform or induce an abortion upon a woman when it has been
6.13determined, by the physician performing or inducing or attempting to perform or induce
6.14the abortion, or by another physician upon whose determination that physician relies, that
6.15the probable postfertilization age of the woman's unborn child is 20 or more weeks unless,
6.16in reasonable medical judgment, she has a condition which so complicates her medical
6.17condition as to necessitate the abortion of the woman's pregnancy to avert the woman's
6.18death or to avert serious risk of substantial and irreversible physical impairment of a major
6.19bodily function, not including psychological or emotional conditions. No such condition
6.20shall be deemed to exist if it is based on a claim or diagnosis that the woman will engage
6.21in conduct which the woman intends to result in the woman's death or in substantial and
6.22irreversible physical impairment of a major bodily function.
6.23 Subd. 2. When abortion not prohibited. When an abortion upon a woman whose
6.24unborn child has been determined to have a probable postfertilization age of 20 or more
6.25weeks is not prohibited by this section, the physician shall terminate the pregnancy in
6.26the manner which, in reasonable medical judgment, provides the best opportunity for
6.27the unborn child to survive unless, in reasonable medical judgment, termination of the
6.28pregnancy in that manner would pose a greater risk either of the death of the pregnant
6.29woman or of the substantial and irreversible physical impairment of a major bodily
6.30function, not including psychological or emotional conditions, of the woman than would
6.31occur with other available methods. No such greater risk shall be deemed to exist if
6.32it is based on a claim or diagnosis that the woman will engage in conduct which the
6.33woman intends to result in the woman's death or in substantial and irreversible physical
6.34impairment of a major bodily function.
7.1 Sec. 8. [145.4145] ENFORCEMENT.
7.2 Subdivision 1. Criminal penalties. A person who intentionally or recklessly
7.3performs or induces or attempts to perform or induce an abortion in violation of sections
7.4145.4141 to 145.4147 shall be guilty of a felony. No penalty may be assessed against the
7.5woman upon whom the abortion is performed or induced or attempted to be performed or
7.6induced.
7.7 Subd. 2. Civil remedies. (a) A woman upon whom an abortion has been performed
7.8or induced in violation of sections 145.4141 to 145.4147, or the father of the unborn
7.9child who was the subject of such an abortion, may maintain an action against the person
7.10who performed or induced the abortion in intentional or reckless violation of sections
7.11145.4141 to 145.4147 for damages. A woman upon whom an abortion has been attempted
7.12in violation of sections 145.4141 to 145.4147 may maintain an action against the person
7.13who attempted to perform or induce the abortion in an intentional or reckless violation of
7.14sections 145.4141 to 145.4147 for damages.
7.15(b) A cause of action for injunctive relief against a person who has intentionally
7.16violated sections 145.4141 to 145.4147 may be maintained by the woman upon whom an
7.17abortion was performed or induced or attempted to be performed or induced in violation of
7.18sections 145.4141 to 145.4147; by a person who is the father of the unborn child subject
7.19to an abortion, parent, sibling, or guardian of, or a current or former licensed health
7.20care provider of, the woman upon whom an abortion has been performed or induced or
7.21attempted to be performed or induced in violation of sections 145.4141 to 145.4147; by a
7.22county attorney with appropriate jurisdiction; or by the attorney general. The injunction
7.23shall prevent the abortion provider from performing or inducing or attempting to perform
7.24or induce further abortions in this state in violation of sections 145.4141 to 145.4147.
7.25(c) If judgment is rendered in favor of the plaintiff in an action described in this
7.26section, the court shall also render judgment for reasonable attorney fees in favor of
7.27the plaintiff against the defendant.
7.28(d) If judgment is rendered in favor of the defendant and the court finds that the
7.29plaintiff's suit was frivolous and brought in bad faith, the court shall also render judgment
7.30for reasonable attorney fees in favor of the defendant against the plaintiff.
7.31(e) No damages or attorney fees may be assessed against the woman upon whom
7.32an abortion was performed or induced or attempted to be performed or induced except
7.33according to paragraph (d).
7.34 Sec. 9. [145.4146] PROTECTION OF PRIVACY IN COURT PROCEEDINGS.
8.1In every civil or criminal proceeding or action brought under the Pain-Capable
8.2Unborn Child Protection Act, the court shall rule on whether the anonymity of a woman
8.3upon whom an abortion has been performed or induced or attempted to be performed or
8.4induced shall be preserved from public disclosure if the woman does not give consent to
8.5such disclosure. The court, upon motion or sua sponte, shall make such a ruling and, upon
8.6determining that the woman's anonymity should be preserved, shall issue orders to the
8.7parties, witnesses, and counsel and shall direct the sealing of the record and exclusion
8.8of individuals from courtrooms or hearing rooms to the extent necessary to safeguard
8.9the woman's identity from public disclosure. Each such order shall be accompanied
8.10by specific written findings explaining why the anonymity of the woman should be
8.11preserved from public disclosure, why the order is essential to that end, how the order is
8.12narrowly tailored to serve that interest, and why no reasonable, less restrictive alternative
8.13exists. In the absence of written consent of the woman upon whom an abortion has been
8.14performed or induced or attempted to be performed or induced, anyone other than a public
8.15official who brings an action under section 145.4145, subdivision 2, shall do so under a
8.16pseudonym. This section may not be construed to conceal the identity of the plaintiff or of
8.17witnesses from the defendant or from attorneys for the defendant.
8.18 Sec. 10. [145.4147] SEVERABILITY.
8.19If any one or more provisions, sections, subdivisions, paragraphs, clauses, items,
8.20phrases, sentences, or words of sections 145.4141 to 145.4146, or the application thereof
8.21to any person or circumstance is found to be unconstitutional, the same is hereby declared
8.22to be severable and the balance of sections 145.4141 to 145.4146 shall remain effective
8.23notwithstanding such unconstitutionality. The legislature hereby declares that it would
8.24have passed sections 145.4141 to 145.4146, and each provision, section, subdivision,
8.25paragraph, clause, item, phrase, sentence, or word thereof, irrespective of the fact that
8.26any one or more provisions, sections, subdivisions, paragraphs, clauses, items, phrases,
8.27sentences, or words of sections 145.4141 to 145.4146, or the application of sections
8.28145.4141 to 145.4146, would be declared unconstitutional.
1.3age unless certain exceptions apply; providing civil and criminal penalties;
1.4appropriating money;amending Minnesota Statutes 2012, section 145.4131,
1.5subdivision 1; proposing coding for new law in Minnesota Statutes, chapters 8;
1.6145.
1.7BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.8 Section 1. SHORT TITLE.
1.9This act may be cited as the "Pain-Capable Unborn Child Protection Act."
1.10 Sec. 2. [8.40] LITIGATION DEFENSE FUND.
1.11(a) There is created in the special revenue fund an account entitled the Pain-Capable
1.12Unborn Child Protection Act litigation account for the purpose of providing funds to
1.13pay for any costs and expenses incurred by the attorney general in relation to actions
1.14surrounding defense of sections 145.4141 to 145.4147.
1.15(b) The account shall be maintained by the commissioner of management and budget.
1.16(c) The litigation account shall consist of:
1.17(1) appropriations made to the account by the legislature; and
1.18(2) any donations, gifts, or grants made to the account by private citizens or entities.
1.19(d) The litigation account shall retain the interest income derived from the money
1.20credited to the account.
1.21(e) Any funds in the litigation account are appropriated to the attorney general for
1.22the purposes described in paragraph (a).
1.23 Sec. 3. Minnesota Statutes 2012, section 145.4131, subdivision 1, is amended to read:
2.1 Subdivision 1. Forms. (a) Within 90 days of July 1, 1998, the commissioner shall
2.2prepare a reporting form for use by physicians or facilities performing abortions. A copy
2.3of this section shall be attached to the form. A physician or facility performing an abortion
2.4shall obtain a form from the commissioner.
2.5(b) The form shall require the following information:
2.6(1) the number of abortions performed by the physician in the previous calendar
2.7year, reported by month;
2.8(2) the method used for each abortion;
2.9(3) the approximate gestational age expressed in one of the following increments:
2.10(i) less than nine weeks;
2.11(ii) nine to ten weeks;
2.12(iii) 11 to 12 weeks;
2.13(iv) 13 to 15 weeks;
2.14(v) 16 to 20 weeks;
2.15(vi) 21 to 24 weeks;
2.16(vii) 25 to 30 weeks;
2.17(viii) 31 to 36 weeks; or
2.18(ix) 37 weeks to term;
2.19(4) the age of the woman at the time the abortion was performed;
2.20(5) the specific reason for the abortion, including, but not limited to, the following:
2.21(i) the pregnancy was a result of rape;
2.22(ii) the pregnancy was a result of incest;
2.23(iii) economic reasons;
2.24(iv) the woman does not want children at this time;
2.25(v) the woman's emotional health is at stake;
2.26(vi) the woman's physical health is at stake;
2.27(vii) the woman will suffer substantial and irreversible impairment of a major bodily
2.28function if the pregnancy continues;
2.29(viii) the pregnancy resulted in fetal anomalies; or
2.30(ix) unknown or the woman refused to answer;
2.31(6) the number of prior induced abortions;
2.32(7) the number of prior spontaneous abortions;
2.33(8) whether the abortion was paid for by:
2.34(i) private coverage;
2.35(ii) public assistance health coverage; or
2.36(iii) self-pay;
3.1(9) whether coverage was under:
3.2(i) a fee-for-service plan;
3.3(ii) a capitated private plan; or
3.4(iii) other;
3.5(10) complications, if any, for each abortion and for the aftermath of each abortion.
3.6Space for a description of any complications shall be available on the form;
3.7(11) the medical specialty of the physician performing the abortion
3.8(12) whether a determination of probable postfertilization age was made and the
3.9probable postfertilization age determined:
3.10(i) the method used to make such a determination; or
3.11(ii) if a determination was not made prior to performing an abortion, the basis of
3.12the determination that a medical emergency existed; and
3.13(13) for abortions performed after a determination of postfertilization age of 20 or
3.14more weeks, the basis of the determination that the pregnant woman had a condition that
3.15so complicated the woman's medical condition so as to necessitate the abortion of the
3.16woman's pregnancy to avert the woman's death or to avert serious risk of substantial and
3.17irreversible physical impairment of a major bodily function, not including psychological
3.18or emotional conditions.
3.19 Sec. 4. [145.4141] DEFINITIONS.
3.20 Subdivision 1. Scope. For purposes of sections 145.4141 to 145.4147, the following
3.21terms have the meanings given them.
3.22 Subd. 2. Abortion. "Abortion" means the use or prescription of any instrument,
3.23medicine, drug, or any other substance or device to terminate the pregnancy of a woman
3.24known to be pregnant, with an intention other than to increase the probability of a live
3.25birth; to preserve the life or health of the child after live birth; or to remove a dead unborn
3.26child who died as the result of natural causes in utero, accidental trauma, or a criminal
3.27assault on the pregnant woman or her unborn child; and which causes the premature
3.28termination of the pregnancy.
3.29 Subd. 3. Attempt to perform or induce an abortion. "Attempt to perform or
3.30induce an abortion" means an act, or an omission of a statutorily required act, that, under
3.31the circumstances as the actor believes them to be, constitutes a substantial step in a
3.32course of conduct planned to culminate in the performance or induction of an abortion in
3.33this state in violation of sections 145.4141 to 145.4147.
3.34 Subd. 4. Fertilization. "Fertilization" means the fusion of a human spermatozoon
3.35with a human ovum.
4.1 Subd. 5. Medical emergency. "Medical emergency" means a condition that, in
4.2reasonable medical judgment, so complicates the medical condition of the pregnant woman
4.3that it necessitates the immediate abortion of her pregnancy without first determining
4.4postfertilization age to avert her death or for which the delay necessary to determine
4.5postfertilization age will create serious risk of substantial and irreversible physical
4.6impairment of a major bodily function not including psychological or emotional conditions.
4.7No condition shall be deemed a medical emergency if based on a claim or diagnosis that
4.8the woman will engage in conduct which the woman intends to result in the woman's death
4.9or in substantial and irreversible physical impairment of a major bodily function.
4.10 Subd. 6. Physician. "Physician" means any person licensed to practice medicine
4.11and surgery or osteopathic medicine and surgery in this state.
4.12 Subd. 7. Postfertilization age. "Postfertilization age" means the age of the unborn
4.13child as calculated from the fusion of a human spermatozoon with a human ovum.
4.14 Subd. 8. Probable postfertilization age of the unborn child. "Probable
4.15postfertilization age of the unborn child" means what will, in reasonable medical
4.16judgment, with a reasonable probability be the postfertilization age of the unborn child at
4.17the time the abortion is planned to be performed or induced.
4.18 Subd. 9. Reasonable medical judgment. "Reasonable medical judgment" means a
4.19medical judgment that would be made by a reasonably prudent physician knowledgeable
4.20about the case and the treatment possibilities with respect to the medical conditions
4.21involved.
4.22 Subd. 10. Unborn child or fetus. "Unborn child" or "fetus" means an individual
4.23organism of the species homo sapiens from fertilization until live birth.
4.24 Subd. 11. Woman. "Woman" means a female human being whether or not the
4.25female has reached the age of majority.
4.26 Sec. 5. [145.4142] LEGISLATIVE FINDINGS.
4.27(a) The legislature makes the following findings.
4.28(b) Pain receptors, nociceptors, are present throughout an unborn child's entire body
4.29and nerves link these receptors to the brain's thalamus and subcortical plate by 20 weeks.
4.30(c) By eight weeks after fertilization, an unborn child reacts to touch. After 20
4.31weeks an unborn child reacts to stimuli that would be recognized as painful if applied to
4.32an adult human, for example by recoiling.
4.33(d) In the unborn child, application of such painful stimuli is associated with
4.34significant increases in stress hormones known as the stress response.
5.1(e) Subjection to such painful stimuli is associated with long-term harmful
5.2neurodevelopmental effects, such as altered pain sensitivity and possibly emotional,
5.3behavioral, and learning disabilities later in life.
5.4(f) For the purposes of surgery on an unborn child, fetal anesthesia is routinely
5.5administered and is associated with a decrease in stress hormones compared to the level of
5.6stress hormones when painful stimuli is applied without anesthesia.
5.7(g) The position asserted by some medical experts that an unborn child is incapable
5.8of experiencing pain until a point later in pregnancy than 20 weeks after fertilization
5.9predominately rests on the assumption that the ability to experience pain depends on the
5.10cerebral cortex and requires nerve connections between the thalamus and the cortex.
5.11However, recent medical research and analysis, especially since 2007, provides strong
5.12evidence for the conclusion that a functioning cortex is not necessary to experience pain.
5.13(h) Substantial evidence indicates that children born missing the bulk of the cerebral
5.14cortex, those with hydranencephaly, nevertheless experience pain.
5.15(i) In adults, stimulation or ablation of the cerebral cortex does not alter pain
5.16perception, while stimulation or ablation of the thalamus does.
5.17(j) Substantial evidence indicates that structures used for pain processing in early
5.18development differ from those of adults, using different neural elements available at
5.19specific times during development, such as the subcortical plate, to fulfill the role of
5.20pain processing.
5.21(k) The position asserted by some medical experts that the unborn child remains in a
5.22coma-like sleep state that precludes the unborn child experiencing pain is inconsistent with
5.23the documented reaction of unborn children to painful stimuli and with the experience of
5.24fetal surgeons who have found it necessary to sedate the unborn child with anesthesia to
5.25prevent the unborn child from thrashing about in reaction to invasive surgery.
5.26(l) Consequently, there is substantial medical evidence that an unborn child is
5.27capable of experiencing pain by 20 weeks after fertilization.
5.28(m) It is the purpose of the state to assert a compelling state interest in protecting the
5.29lives of unborn children from the stage at which substantial medical evidence indicates
5.30that they are capable of feeling pain.
5.31 Sec. 6. [145.4143] DETERMINATION OF POSTFERTILIZATION AGE.
5.32 Subdivision 1. Determination of postfertilization age. Except in the case of a
5.33medical emergency, no abortion shall be performed or induced or be attempted to be
5.34performed or induced unless the physician performing or inducing it has first made a
5.35determination of the probable postfertilization age of the unborn child or relied upon
6.1such a determination made by another physician. In making such a determination, the
6.2physician shall make those inquiries of the woman and perform or cause to be performed
6.3those medical examinations and tests that a reasonably prudent physician, knowledgeable
6.4about the case and the medical conditions involved, would consider necessary to perform
6.5in making an accurate diagnosis with respect to postfertilization age.
6.6 Subd. 2. Unprofessional conduct. Failure by any physician to conform to any
6.7requirement of this section constitutes unprofessional conduct under section 147.091,
6.8subdivision 1, paragraph (k).
6.9 Sec. 7. [145.4144] ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS
6.10POSTFERTILIZATION AGE PROHIBITED.
6.11 Subdivision 1. Abortion prohibition; exemption. No person shall perform or
6.12induce or attempt to perform or induce an abortion upon a woman when it has been
6.13determined, by the physician performing or inducing or attempting to perform or induce
6.14the abortion, or by another physician upon whose determination that physician relies, that
6.15the probable postfertilization age of the woman's unborn child is 20 or more weeks unless,
6.16in reasonable medical judgment, she has a condition which so complicates her medical
6.17condition as to necessitate the abortion of the woman's pregnancy to avert the woman's
6.18death or to avert serious risk of substantial and irreversible physical impairment of a major
6.19bodily function, not including psychological or emotional conditions. No such condition
6.20shall be deemed to exist if it is based on a claim or diagnosis that the woman will engage
6.21in conduct which the woman intends to result in the woman's death or in substantial and
6.22irreversible physical impairment of a major bodily function.
6.23 Subd. 2. When abortion not prohibited. When an abortion upon a woman whose
6.24unborn child has been determined to have a probable postfertilization age of 20 or more
6.25weeks is not prohibited by this section, the physician shall terminate the pregnancy in
6.26the manner which, in reasonable medical judgment, provides the best opportunity for
6.27the unborn child to survive unless, in reasonable medical judgment, termination of the
6.28pregnancy in that manner would pose a greater risk either of the death of the pregnant
6.29woman or of the substantial and irreversible physical impairment of a major bodily
6.30function, not including psychological or emotional conditions, of the woman than would
6.31occur with other available methods. No such greater risk shall be deemed to exist if
6.32it is based on a claim or diagnosis that the woman will engage in conduct which the
6.33woman intends to result in the woman's death or in substantial and irreversible physical
6.34impairment of a major bodily function.
7.1 Sec. 8. [145.4145] ENFORCEMENT.
7.2 Subdivision 1. Criminal penalties. A person who intentionally or recklessly
7.3performs or induces or attempts to perform or induce an abortion in violation of sections
7.4145.4141 to 145.4147 shall be guilty of a felony. No penalty may be assessed against the
7.5woman upon whom the abortion is performed or induced or attempted to be performed or
7.6induced.
7.7 Subd. 2. Civil remedies. (a) A woman upon whom an abortion has been performed
7.8or induced in violation of sections 145.4141 to 145.4147, or the father of the unborn
7.9child who was the subject of such an abortion, may maintain an action against the person
7.10who performed or induced the abortion in intentional or reckless violation of sections
7.11145.4141 to 145.4147 for damages. A woman upon whom an abortion has been attempted
7.12in violation of sections 145.4141 to 145.4147 may maintain an action against the person
7.13who attempted to perform or induce the abortion in an intentional or reckless violation of
7.14sections 145.4141 to 145.4147 for damages.
7.15(b) A cause of action for injunctive relief against a person who has intentionally
7.16violated sections 145.4141 to 145.4147 may be maintained by the woman upon whom an
7.17abortion was performed or induced or attempted to be performed or induced in violation of
7.18sections 145.4141 to 145.4147; by a person who is the father of the unborn child subject
7.19to an abortion, parent, sibling, or guardian of, or a current or former licensed health
7.20care provider of, the woman upon whom an abortion has been performed or induced or
7.21attempted to be performed or induced in violation of sections 145.4141 to 145.4147; by a
7.22county attorney with appropriate jurisdiction; or by the attorney general. The injunction
7.23shall prevent the abortion provider from performing or inducing or attempting to perform
7.24or induce further abortions in this state in violation of sections 145.4141 to 145.4147.
7.25(c) If judgment is rendered in favor of the plaintiff in an action described in this
7.26section, the court shall also render judgment for reasonable attorney fees in favor of
7.27the plaintiff against the defendant.
7.28(d) If judgment is rendered in favor of the defendant and the court finds that the
7.29plaintiff's suit was frivolous and brought in bad faith, the court shall also render judgment
7.30for reasonable attorney fees in favor of the defendant against the plaintiff.
7.31(e) No damages or attorney fees may be assessed against the woman upon whom
7.32an abortion was performed or induced or attempted to be performed or induced except
7.33according to paragraph (d).
7.34 Sec. 9. [145.4146] PROTECTION OF PRIVACY IN COURT PROCEEDINGS.
8.1In every civil or criminal proceeding or action brought under the Pain-Capable
8.2Unborn Child Protection Act, the court shall rule on whether the anonymity of a woman
8.3upon whom an abortion has been performed or induced or attempted to be performed or
8.4induced shall be preserved from public disclosure if the woman does not give consent to
8.5such disclosure. The court, upon motion or sua sponte, shall make such a ruling and, upon
8.6determining that the woman's anonymity should be preserved, shall issue orders to the
8.7parties, witnesses, and counsel and shall direct the sealing of the record and exclusion
8.8of individuals from courtrooms or hearing rooms to the extent necessary to safeguard
8.9the woman's identity from public disclosure. Each such order shall be accompanied
8.10by specific written findings explaining why the anonymity of the woman should be
8.11preserved from public disclosure, why the order is essential to that end, how the order is
8.12narrowly tailored to serve that interest, and why no reasonable, less restrictive alternative
8.13exists. In the absence of written consent of the woman upon whom an abortion has been
8.14performed or induced or attempted to be performed or induced, anyone other than a public
8.15official who brings an action under section 145.4145, subdivision 2, shall do so under a
8.16pseudonym. This section may not be construed to conceal the identity of the plaintiff or of
8.17witnesses from the defendant or from attorneys for the defendant.
8.18 Sec. 10. [145.4147] SEVERABILITY.
8.19If any one or more provisions, sections, subdivisions, paragraphs, clauses, items,
8.20phrases, sentences, or words of sections 145.4141 to 145.4146, or the application thereof
8.21to any person or circumstance is found to be unconstitutional, the same is hereby declared
8.22to be severable and the balance of sections 145.4141 to 145.4146 shall remain effective
8.23notwithstanding such unconstitutionality. The legislature hereby declares that it would
8.24have passed sections 145.4141 to 145.4146, and each provision, section, subdivision,
8.25paragraph, clause, item, phrase, sentence, or word thereof, irrespective of the fact that
8.26any one or more provisions, sections, subdivisions, paragraphs, clauses, items, phrases,
8.27sentences, or words of sections 145.4141 to 145.4146, or the application of sections
8.28145.4141 to 145.4146, would be declared unconstitutional.
