Bill Text: MN SF649 | 2011-2012 | 87th Legislature | Engrossed
Bill Title: Pain-Capable Unborn Child Protection Act
Sponsorship: Bipartisan Bill
Status: (Introduced - Dead) 2011-05-10 - HF substituted on General Orders HF936 [SF649 Detail]
Download: Minnesota-2011-SF649-Engrossed.html
1.2relating to health; prohibiting abortions at or after 20 weeks gestational age
1.3unless certain exceptions apply; providing civil and criminal penalties;amending
1.4Minnesota Statutes 2010, section 145.4131, subdivision 1; proposing coding for
1.5new law in Minnesota Statutes, chapters 8; 145.
1.6BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.7 Section 1. SHORT TITLE.
1.8This act may be cited as the "Pain-Capable Unborn Child Protection Act."
1.9 Sec. 2. [8.40] LITIGATION DEFENSE FUND.
1.10(a) There is created in the special revenue fund an account entitled the Pain-Capable
1.11Unborn Child Protection Act litigation account for the purpose of providing funds to pay
1.12for any costs and expenses incurred by the state attorney general in relation to actions
1.13surrounding defense of sections 145.4141 to 145.4148.
1.14(b) The account shall be maintained by the commissioner of management and budget.
1.15(c) The litigation account shall consist of:
1.16(1) appropriations made to the account by the legislature; and
1.17(2) any donations, gifts, or grants made to the account by private citizens or entities.
1.18(d) The litigation account shall retain the interest income derived from the money
1.19credited to the account.
1.20(e) Any funds in the litigation account are appropriated to the attorney general for
1.21the purposes described in paragraph (a).
1.22 Sec. 3. Minnesota Statutes 2010, 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 her medical condition as to necessitate the abortion of her pregnancy to
3.16avert her death or to avert serious risk of substantial and irreversible physical impairment
3.17of a major bodily function, not including psychological or emotional conditions.
3.18 Sec. 4. [145.4141] DEFINITIONS.
3.19 Subdivision 1. Scope. For purposes of sections 145.4141 to 145.4148, the following
3.20terms have the meanings given them.
3.21 Subd. 2. Abortion. "Abortion" means the use or prescription of any instrument,
3.22medicine, drug, or any other substance or device to terminate the pregnancy of a woman
3.23known to be pregnant, with an intention other than to increase the probability of a live
3.24birth; to preserve the life or health of the child after live birth; or to remove a dead unborn
3.25child who died as the result of natural causes in utero, accidental trauma, or a criminal
3.26assault on the pregnant woman or her unborn child; and which causes the premature
3.27termination of the pregnancy.
3.28 Subd. 3. Attempt to perform or induce an abortion. "Attempt to perform or
3.29induce an abortion" means an act, or an omission of a statutorily required act, that, under
3.30the circumstances as the actor believes them to be, constitutes a substantial step in a
3.31course of conduct planned to culminate in the performance or induction of an abortion in
3.32this state in violation of sections 145.4141 to 145.4148.
3.33 Subd. 4. Fertilization. "Fertilization" means the fusion of a human spermatozoon
3.34with a human ovum.
4.1 Subd. 5. Medical emergency. "Medical emergency" means a condition that,
4.2in reasonable medical judgment, so complicates the medical condition of the pregnant
4.3woman that it necessitates the immediate abortion of her pregnancy without first
4.4determining postfertilization age to avert her death or for which the delay necessary to
4.5determine postfertilization age will create serious risk of substantial and irreversible
4.6physical impairment of a major bodily function not including psychological or emotional
4.7conditions. No condition shall be deemed a medical emergency if based on a claim or
4.8diagnosis that the woman will engage in conduct which she intends to result in her 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, in reasonable medical judgment,
4.16will with reasonable probability be the postfertilization age of the unborn child at the time
4.17the 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 she
4.25has 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
5.6when 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.
5.32Except in the case of a medical emergency, no abortion shall be performed or induced
5.33or be attempted to be performed or induced unless the physician performing or inducing
5.34it has first made a determination of the probable postfertilization age of the unborn
5.35child or relied upon such a determination made by another physician. In making such a
6.1determination, the physician shall make those inquiries of the woman and perform or cause
6.2to be performed those medical examinations and tests that a reasonably prudent physician,
6.3knowledgeable about the case and the medical conditions involved, would consider
6.4necessary to perform in making an accurate diagnosis with respect to postfertilization age.
6.5 Sec. 7. [145.4144] ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS
6.6POSTFERTILIZATION AGE PROHIBITED; CAPABLE OF FEELING PAIN.
6.7 Subdivision 1. Abortion prohibition; exemption. No person shall perform or
6.8induce or attempt to perform or induce an abortion upon a woman when it has been
6.9determined, by the physician performing or inducing or attempting to perform or induce
6.10the abortion, or by another physician upon whose determination that physician relies,
6.11that the probable postfertilization age of the woman's unborn child is 20 or more weeks
6.12unless, in reasonable medical judgment, she has a condition which so complicates her
6.13medical condition as to necessitate the abortion of her pregnancy to avert her death or to
6.14avert serious risk of substantial and irreversible physical impairment of a major bodily
6.15function, not including psychological or emotional conditions. No such condition shall
6.16be deemed to exist if it is based on a claim or diagnosis that the woman will engage in
6.17conduct which she intends to result in her death or in substantial and irreversible physical
6.18impairment of a major bodily function.
6.19 Subd. 2. When abortion not prohibited. When an abortion upon a woman whose
6.20unborn child has been determined to have a probable postfertilization age of 20 or more
6.21weeks is not prohibited by this section, the physician shall terminate the pregnancy in
6.22the manner which, in reasonable medical judgment, provides the best opportunity for
6.23the unborn child to survive unless, in reasonable medical judgment, termination of the
6.24pregnancy in that manner would pose a greater risk either of the death of the pregnant
6.25woman or of the substantial and irreversible physical impairment of a major bodily
6.26function, not including psychological or emotional conditions, of the woman than would
6.27other available methods. No such greater risk shall be deemed to exist if it is based on a
6.28claim or diagnosis that the woman will engage in conduct which she intends to result in
6.29her death or in substantial and irreversible physical impairment of a major bodily function.
6.30 Sec. 8. [145.4145] ENFORCEMENT.
6.31 Subdivision 1. Criminal penalties. A person who intentionally or recklessly
6.32performs or induces or attempts to perform or induce an abortion in violation of sections
6.33145.4141 to 145.4148 shall be guilty of a felony. No penalty may be assessed against the
7.1woman upon whom the abortion is performed or induced or attempted to be performed or
7.2induced.
7.3 Subd. 2. Civil remedies. (a) A woman upon whom an abortion has been performed
7.4or induced in violation of sections 145.4141 to 145.4148, or the father of the unborn
7.5child who was the subject of such an abortion, may maintain an action against the person
7.6who performed or induced the abortion in intentional or reckless violation of sections
7.7145.4141 to 145.4148 for damages. A woman upon whom an abortion has been attempted
7.8in violation of sections 145.4141 to 145.4148 may maintain an action against the person
7.9who attempted to perform or induce the abortion in an intentional or reckless violation of
7.10sections 145.4141 to 145.4148 for damages.
7.11(b) A cause of action for injunctive relief against a person who has intentionally
7.12violated sections 145.4141 to 145.4148 may be maintained by the woman upon whom an
7.13abortion was performed or induced or attempted to be performed or induced in violation of
7.14sections 145.4141 to 145.4148; by a person who is the father of the unborn child subject
7.15to an abortion, parent, sibling, or guardian of, or a current or former licensed health
7.16care provider of, the woman upon whom an abortion has been performed or induced or
7.17attempted to be performed or induced in violation of sections 145.4141 to 145.4148; by a
7.18county attorney with appropriate jurisdiction; or by the attorney general. The injunction
7.19shall prevent the abortion provider from performing or inducing or attempting to perform
7.20or induce further abortions in this state in violation of sections 145.4141 to 145.4148.
7.21(c) If judgment is rendered in favor of the plaintiff in an action described in this
7.22section, the court shall also render judgment for reasonable attorney fees in favor of
7.23the plaintiff against the defendant.
7.24(d) If judgment is rendered in favor of the defendant and the court finds that the
7.25plaintiff's suit was frivolous and brought in bad faith, the court shall also render judgment
7.26for reasonable attorney fees in favor of the defendant against the plaintiff.
7.27(e) No damages or attorney fees may be assessed against the woman upon whom
7.28an abortion was performed or induced or attempted to be performed or induced except
7.29according to paragraph (d).
7.30 Sec. 9. [145.4146] PROTECTION OF PRIVACY IN COURT PROCEEDINGS.
7.31In every civil or criminal proceeding or action brought under the Pain-Capable
7.32Unborn Child Protection Act, the court shall rule on whether the anonymity of a woman
7.33upon whom an abortion has been performed or induced or attempted to be performed
7.34or induced shall be preserved from public disclosure if she does not give her consent
7.35to such disclosure. The court, upon motion or sua sponte, shall make such a ruling
8.1and, upon determining that her anonymity should be preserved, shall issue orders to the
8.2parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of
8.3individuals from courtrooms or hearing rooms to the extent necessary to safeguard her
8.4identity from public disclosure. Each such order shall be accompanied by specific written
8.5findings explaining why the anonymity of the woman should be preserved from public
8.6disclosure, why the order is essential to that end, how the order is narrowly tailored to
8.7serve that interest, and why no reasonable, less restrictive alternative exists. In the absence
8.8of written consent of the woman upon whom an abortion has been performed or induced
8.9or attempted to be performed or induced, anyone, other than a public official, who brings
8.10an action under section 145.4145, subdivision 2, shall do so under a pseudonym. This
8.11section may not be construed to conceal the identity of the plaintiff or of witnesses from
8.12the defendant or from attorneys for the defendant.
8.13 Sec. 10. [145.4147] SEVERABILITY.
8.14If any one or more provisions, sections, subsections, sentences, clauses, phrases,
8.15or words of sections 145.4141 to 145.4148, or the application thereof to any person or
8.16circumstance is found to be unconstitutional, the same is hereby declared to be severable
8.17and the balance of sections 145.4141 to 145.4148 shall remain effective notwithstanding
8.18such unconstitutionality. The legislature hereby declares that it would have passed
8.19sections 145.4141 to 145.4148, and each provision, section, subsection, sentence, clause,
8.20phrase, or word thereof, irrespective of the fact that any one or more provisions, sections,
8.21subsections, sentences, clauses, phrases, or words of sections 145.4141 to 145.4148, or the
8.22application of sections 145.4141 to 145.4148, would be declared unconstitutional.
8.23 Sec. 11. [145.4148] SUPREME COURT JURISDICTION.
8.24The Minnesota Supreme Court has original jurisdiction over an action challenging
8.25the constitutionality of sections 145.4141 to 145.4147 and shall expedite the resolution
8.26of the action.
1.3unless certain exceptions apply; providing civil and criminal penalties;amending
1.4Minnesota Statutes 2010, section 145.4131, subdivision 1; proposing coding for
1.5new law in Minnesota Statutes, chapters 8; 145.
1.6BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.7 Section 1. SHORT TITLE.
1.8This act may be cited as the "Pain-Capable Unborn Child Protection Act."
1.9 Sec. 2. [8.40] LITIGATION DEFENSE FUND.
1.10(a) There is created in the special revenue fund an account entitled the Pain-Capable
1.11Unborn Child Protection Act litigation account for the purpose of providing funds to pay
1.12for any costs and expenses incurred by the state attorney general in relation to actions
1.13surrounding defense of sections 145.4141 to 145.4148.
1.14(b) The account shall be maintained by the commissioner of management and budget.
1.15(c) The litigation account shall consist of:
1.16(1) appropriations made to the account by the legislature; and
1.17(2) any donations, gifts, or grants made to the account by private citizens or entities.
1.18(d) The litigation account shall retain the interest income derived from the money
1.19credited to the account.
1.20(e) Any funds in the litigation account are appropriated to the attorney general for
1.21the purposes described in paragraph (a).
1.22 Sec. 3. Minnesota Statutes 2010, 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 her medical condition as to necessitate the abortion of her pregnancy to
3.16avert her death or to avert serious risk of substantial and irreversible physical impairment
3.17of a major bodily function, not including psychological or emotional conditions.
3.18 Sec. 4. [145.4141] DEFINITIONS.
3.19 Subdivision 1. Scope. For purposes of sections 145.4141 to 145.4148, the following
3.20terms have the meanings given them.
3.21 Subd. 2. Abortion. "Abortion" means the use or prescription of any instrument,
3.22medicine, drug, or any other substance or device to terminate the pregnancy of a woman
3.23known to be pregnant, with an intention other than to increase the probability of a live
3.24birth; to preserve the life or health of the child after live birth; or to remove a dead unborn
3.25child who died as the result of natural causes in utero, accidental trauma, or a criminal
3.26assault on the pregnant woman or her unborn child; and which causes the premature
3.27termination of the pregnancy.
3.28 Subd. 3. Attempt to perform or induce an abortion. "Attempt to perform or
3.29induce an abortion" means an act, or an omission of a statutorily required act, that, under
3.30the circumstances as the actor believes them to be, constitutes a substantial step in a
3.31course of conduct planned to culminate in the performance or induction of an abortion in
3.32this state in violation of sections 145.4141 to 145.4148.
3.33 Subd. 4. Fertilization. "Fertilization" means the fusion of a human spermatozoon
3.34with a human ovum.
4.1 Subd. 5. Medical emergency. "Medical emergency" means a condition that,
4.2in reasonable medical judgment, so complicates the medical condition of the pregnant
4.3woman that it necessitates the immediate abortion of her pregnancy without first
4.4determining postfertilization age to avert her death or for which the delay necessary to
4.5determine postfertilization age will create serious risk of substantial and irreversible
4.6physical impairment of a major bodily function not including psychological or emotional
4.7conditions. No condition shall be deemed a medical emergency if based on a claim or
4.8diagnosis that the woman will engage in conduct which she intends to result in her 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, in reasonable medical judgment,
4.16will with reasonable probability be the postfertilization age of the unborn child at the time
4.17the 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 she
4.25has 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
5.6when 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.
5.32Except in the case of a medical emergency, no abortion shall be performed or induced
5.33or be attempted to be performed or induced unless the physician performing or inducing
5.34it has first made a determination of the probable postfertilization age of the unborn
5.35child or relied upon such a determination made by another physician. In making such a
6.1determination, the physician shall make those inquiries of the woman and perform or cause
6.2to be performed those medical examinations and tests that a reasonably prudent physician,
6.3knowledgeable about the case and the medical conditions involved, would consider
6.4necessary to perform in making an accurate diagnosis with respect to postfertilization age.
6.5 Sec. 7. [145.4144] ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS
6.6POSTFERTILIZATION AGE PROHIBITED; CAPABLE OF FEELING PAIN.
6.7 Subdivision 1. Abortion prohibition; exemption. No person shall perform or
6.8induce or attempt to perform or induce an abortion upon a woman when it has been
6.9determined, by the physician performing or inducing or attempting to perform or induce
6.10the abortion, or by another physician upon whose determination that physician relies,
6.11that the probable postfertilization age of the woman's unborn child is 20 or more weeks
6.12unless, in reasonable medical judgment, she has a condition which so complicates her
6.13medical condition as to necessitate the abortion of her pregnancy to avert her death or to
6.14avert serious risk of substantial and irreversible physical impairment of a major bodily
6.15function, not including psychological or emotional conditions. No such condition shall
6.16be deemed to exist if it is based on a claim or diagnosis that the woman will engage in
6.17conduct which she intends to result in her death or in substantial and irreversible physical
6.18impairment of a major bodily function.
6.19 Subd. 2. When abortion not prohibited. When an abortion upon a woman whose
6.20unborn child has been determined to have a probable postfertilization age of 20 or more
6.21weeks is not prohibited by this section, the physician shall terminate the pregnancy in
6.22the manner which, in reasonable medical judgment, provides the best opportunity for
6.23the unborn child to survive unless, in reasonable medical judgment, termination of the
6.24pregnancy in that manner would pose a greater risk either of the death of the pregnant
6.25woman or of the substantial and irreversible physical impairment of a major bodily
6.26function, not including psychological or emotional conditions, of the woman than would
6.27other available methods. No such greater risk shall be deemed to exist if it is based on a
6.28claim or diagnosis that the woman will engage in conduct which she intends to result in
6.29her death or in substantial and irreversible physical impairment of a major bodily function.
6.30 Sec. 8. [145.4145] ENFORCEMENT.
6.31 Subdivision 1. Criminal penalties. A person who intentionally or recklessly
6.32performs or induces or attempts to perform or induce an abortion in violation of sections
6.33145.4141 to 145.4148 shall be guilty of a felony. No penalty may be assessed against the
7.1woman upon whom the abortion is performed or induced or attempted to be performed or
7.2induced.
7.3 Subd. 2. Civil remedies. (a) A woman upon whom an abortion has been performed
7.4or induced in violation of sections 145.4141 to 145.4148, or the father of the unborn
7.5child who was the subject of such an abortion, may maintain an action against the person
7.6who performed or induced the abortion in intentional or reckless violation of sections
7.7145.4141 to 145.4148 for damages. A woman upon whom an abortion has been attempted
7.8in violation of sections 145.4141 to 145.4148 may maintain an action against the person
7.9who attempted to perform or induce the abortion in an intentional or reckless violation of
7.10sections 145.4141 to 145.4148 for damages.
7.11(b) A cause of action for injunctive relief against a person who has intentionally
7.12violated sections 145.4141 to 145.4148 may be maintained by the woman upon whom an
7.13abortion was performed or induced or attempted to be performed or induced in violation of
7.14sections 145.4141 to 145.4148; by a person who is the father of the unborn child subject
7.15to an abortion, parent, sibling, or guardian of, or a current or former licensed health
7.16care provider of, the woman upon whom an abortion has been performed or induced or
7.17attempted to be performed or induced in violation of sections 145.4141 to 145.4148; by a
7.18county attorney with appropriate jurisdiction; or by the attorney general. The injunction
7.19shall prevent the abortion provider from performing or inducing or attempting to perform
7.20or induce further abortions in this state in violation of sections 145.4141 to 145.4148.
7.21(c) If judgment is rendered in favor of the plaintiff in an action described in this
7.22section, the court shall also render judgment for reasonable attorney fees in favor of
7.23the plaintiff against the defendant.
7.24(d) If judgment is rendered in favor of the defendant and the court finds that the
7.25plaintiff's suit was frivolous and brought in bad faith, the court shall also render judgment
7.26for reasonable attorney fees in favor of the defendant against the plaintiff.
7.27(e) No damages or attorney fees may be assessed against the woman upon whom
7.28an abortion was performed or induced or attempted to be performed or induced except
7.29according to paragraph (d).
7.30 Sec. 9. [145.4146] PROTECTION OF PRIVACY IN COURT PROCEEDINGS.
7.31In every civil or criminal proceeding or action brought under the Pain-Capable
7.32Unborn Child Protection Act, the court shall rule on whether the anonymity of a woman
7.33upon whom an abortion has been performed or induced or attempted to be performed
7.34or induced shall be preserved from public disclosure if she does not give her consent
7.35to such disclosure. The court, upon motion or sua sponte, shall make such a ruling
8.1and, upon determining that her anonymity should be preserved, shall issue orders to the
8.2parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of
8.3individuals from courtrooms or hearing rooms to the extent necessary to safeguard her
8.4identity from public disclosure. Each such order shall be accompanied by specific written
8.5findings explaining why the anonymity of the woman should be preserved from public
8.6disclosure, why the order is essential to that end, how the order is narrowly tailored to
8.7serve that interest, and why no reasonable, less restrictive alternative exists. In the absence
8.8of written consent of the woman upon whom an abortion has been performed or induced
8.9or attempted to be performed or induced, anyone, other than a public official, who brings
8.10an action under section 145.4145, subdivision 2, shall do so under a pseudonym. This
8.11section may not be construed to conceal the identity of the plaintiff or of witnesses from
8.12the defendant or from attorneys for the defendant.
8.13 Sec. 10. [145.4147] SEVERABILITY.
8.14If any one or more provisions, sections, subsections, sentences, clauses, phrases,
8.15or words of sections 145.4141 to 145.4148, or the application thereof to any person or
8.16circumstance is found to be unconstitutional, the same is hereby declared to be severable
8.17and the balance of sections 145.4141 to 145.4148 shall remain effective notwithstanding
8.18such unconstitutionality. The legislature hereby declares that it would have passed
8.19sections 145.4141 to 145.4148, and each provision, section, subsection, sentence, clause,
8.20phrase, or word thereof, irrespective of the fact that any one or more provisions, sections,
8.21subsections, sentences, clauses, phrases, or words of sections 145.4141 to 145.4148, or the
8.22application of sections 145.4141 to 145.4148, would be declared unconstitutional.
8.23 Sec. 11. [145.4148] SUPREME COURT JURISDICTION.
8.24The Minnesota Supreme Court has original jurisdiction over an action challenging
8.25the constitutionality of sections 145.4141 to 145.4147 and shall expedite the resolution
8.26of the action.
