MISSISSIPPI LEGISLATURE

2021 Regular Session

To: Judiciary B

By: Representative Eubanks

House Bill 338

AN ACT TO AMEND SECTION 97-3-3, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT ANY PERSON WHO WILLFULLY CAUSES AN ABORTION SHALL BE GUILTY OF A FELONY; TO AMEND SECTION 97-3-4, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT IT SHALL BE UNLAWFUL FOR ANY PHYSICIAN TO  PERFORM AN ABORTION OR TO PERFORM AN ABORTION THAT RESULTS IN THE DELIVERY OF A LIVING CHILD AND TO INTENTIONALLY ALLOW OR CAUSE THE CHILD TO DIE; TO AMEND SECTION 97-3-5, MISSISSIPPI CODE OF 1972, TO INCREASE THE PENALTY FOR A PERSON WHO ADVERTISES FOR MEDICINE OR TOOLS THAT CAN BE USED IN AN UNLAWFUL ABORTION; TO AMEND SECTIONS 41-41-39 AND 41-41-73, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT ANY PERSON WHO PERFORMS OR INDUCES ANY ABORTION SHALL BE GUILTY OF MURDER; TO AMEND SECTION 41-41-91, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT NO PUBLIC FUNDS MAY BE PROVIDED TO ANY FACILITY PERFORMING AN ABORTION; TO AMEND SECTION 41-41-99, MISSISSIPPI CODE OF 1972, TO PROHIBIT ABORTION COVERAGE BY A QUALIFIED HEALTH PLAN OFFERED THROUGH THE STATE HEALTH PLAN; TO AMEND SECTION 41-41-107, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT ANY PERSON WHO KNOWINGLY GIVES ABORTION INDUCING DRUGS TO A PREGNANT WOMAN SHALL BE GUILTY OF A FELONY; TO AMEND SECTIONS 97-3-37, 97-5-51, 41-41-113, 41-41-115, 41-75-1, 41-75-3, 41-75-5, 41-75-13 AND 73-25-29, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTIONS; TO REPEAL SECTIONS 41-41-31, 41-41-33, 41-41-34, 41-41-35, 41-41-37, 41-41-45, 41-41-51, 41-41-53, 41-41-55, 41-41-57, 41-41-59, 41-41-61, 41-41-63, 41-41-71, 41-41-80, 41-41-109, 41-41-111, 41-75-16, 41-75-18, 41-75-26 AND 41-75-29, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR LAWFUL ABORTIONS, PARTIAL BIRTH ABORTIONS AND ABORTION FACILITIES; TO BRING FORWARD SECTIONS 41-41-151, 41-41-153, 41-41-155, 41-41-157, 41-41-159, 41-41-161, 41-41-163, 41-41-165, 41-41-167 AND 41-41-169, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR THE MISSISSIPPI UNBORN CHILD PROTECTION FROM DISMEMBERMENT ABORTION ACT, FOR PURPOSES OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.

     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  Section 97-3-3, Mississippi Code of 1972, is amended as follows:

     97-3-3.  * * *(1) Any person * * * wilfully willfully and knowingly causing, by means of any instrument, medicine, drug or other means whatever, any woman pregnant with child to abort or miscarry, or attempts to procure or produce an abortion or miscarriage shall be guilty of a felony * * *unless the same were done by a duly licensed, practicing physician: and, upon conviction, be imprisoned for not less than one (1) year nor more than ten (10) years in the State Penitentiary and fined not more than Fifty Thousand Dollars ($50,000.00) but not less than Twenty-five Thousand Dollars ($25,000.00).

 * * *  (a)  Where necessary for the preservation of the mother's life;

  (b)  Where pregnancy was caused by rape.

Said person shall, upon conviction, be imprisoned in the State Penitentiary not less than one (1) year nor more than ten (10) years; provided, however, if the death of the mother results therefrom, the person procuring, causing or attempting to procure or cause the illegal abortion or miscarriage shall be guilty of murder.

(2)  No act prohibited in subsection (1) of this section shall be considered exempt under the provisions of * * *subparagrah paragraph (a) thereof unless performed upon the prior advice in writing, of two (2) reputable licensed physicians.

(3)  The license of any physician or nurse shall be automatically revoked upon conviction under the provisions of this section.

(4)  Nothing in this section shall be construed as conflicting with Section 41‑41‑73.

     SECTION 2.  Section 97-3-4, Mississippi Code of 1972, is amended as follows:

     97-3-4.  (1)  It shall be unlawful for any physician * * *performing to perform an abortion or to perform an abortion that results in the delivery of a living child and to intentionally allow or cause the child to die.

     (2)  If the child is viable, such child shall be immediately provided appropriate medical care and comfort care necessary to sustain life.  If the child is not viable, such child shall be provided comfort care.  The provision of this section shall include, but not be limited to, a child born with physical or mental handicapping conditions which, in the opinion of the parent, the physician or other persons, diminishes the quality of the child's life, a child born alive during the course of an attempted abortion and a child not wanted by the parent.

     (3)  As used in this section, the term "child" includes every infant member of the species homo sapiens who is born alive at any stage of development.

     (4)  Any person who violates this section shall be guilty of a felony and, upon conviction, be imprisoned for not less than one (1) year nor more than ten (10) years in the State Penitentiary and fined not more than Fifty Thousand Dollars ($50,000.00) but not less than Twenty-five Thousand Dollars ($25,000.00).

     SECTION 3.  Section 97-3-5, Mississippi Code of 1972, is amended as follows:

     97-3-5.  A person who sells, lends, gives away, or in any manner exhibits, or offers to sell, lend, or give away, or has in his or her possession with intent to sell, lend, or give away, or advertises or offers for sale, loan or distribution any instrument or article, or any drug or medicine, for causing unlawful abortion; or who writes or prints, or causes to be written or printed, a card, circular, pamphlet, advertisement, or notice of any kind, or gives information orally, stating when, where, how, of whom, or by what means such article or medicine can be purchased or obtained, or who manufactures any such article or medicine, is guilty of a * * *misdemeanor, and, on conviction, shall be punished by fine not less than Twenty‑five Dollars ($25.00) nor more than Two Hundred Dollars ($200.00), and by imprisonment in the county jail not exceeding three (3) months felony and, upon conviction, be imprisoned for not less than one (1) year nor more than ten (10) years in the State Penitentiary and fined not more than Fifty Thousand Dollars ($50,000.00) but not less than Twenty-five Thousand Dollars ($25,000.00).

     SECTION 4.  Section 41-41-39, Mississippi Code of 1972, is amended as follows:

     41-41-39.  Anyone who purposefully, knowingly or recklessly performs or attempts to perform or induce an abortion * * *without complying with Sections 41‑41‑31 through 41‑41‑37 shall, upon conviction, be guilty of a misdemeanor and shall be punished by a fine of One Thousand Dollars ($1,000.00), by imprisonment in the county jail for a period of time not to exceed six (6) months or both such fine and imprisonment shall be guilty of murder and punished as provided by law for such crime.

     SECTION 5.  Section 41-41-73, Mississippi Code of 1972, is amended as follows:

     41-41-73.  * * *(1) Any physician who knowingly performs a partial-birth abortion and thereby kills a human fetus shall be guilty * * *of a felony and, upon conviction thereof, shall be fined not more than Twenty‑five Thousand Dollars ($25,000.00) or imprisoned in the State Penitentiary for not more than two (2) years, or both.  This subsection shall not apply to a partial‑birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, illness, or injury if no other medical procedure would suffice for that purpose of murder.

 * * * (2)  (a)  As used in this section, "partial‑birth abortion" means an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.

  (b)  As used in this section, "physician" means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the State of Mississippi.  However, any individual who is not a physician but who nevertheless directly performs a partial‑birth abortion shall be subject to the provisions of this section.

(3)  (a)  The husband of a mother at the time she receives a partial‑birth abortion procedure, and if the mother has not attained the age of eighteen (18) years at the time of the abortion, the mother's parents may in a civil action obtain appropriate relief, unless the pregnancy resulted from the plaintiff's criminal conduct or the plaintiff consented to the abortion.

  (b)  Such relief shall include:

   (i)  Money damages for all injuries, psychological and physical, occasioned by the violation of this section; and

   (ii)  Statutory damages equal to three (3) times the cost of the partial‑birth abortion.

(4)  A woman upon whom a partial‑birth abortion is performed may not be prosecuted under this section for a conspiracy to violate this section.

     SECTION 6.  Section 41-41-91, Mississippi Code of 1972, is amended as follows:

     41-41-91.  Notwithstanding any other provision of law to the contrary, no public funds that are made available to any institution, board, commission, department, agency, official, or employee of the State of Mississippi, or of any local political subdivision of the state, whether those funds are made available by the government of the United States, the State of Mississippi, or a local governmental subdivision, or from any other public source, shall be used in any way for, to assist in, or to provide facilities for abortion * * *, except:.

 * * *  (a)  When the abortion is medically necessary to prevent the death of the mother; or

  (b)  When the abortion is being sought to terminate a pregnancy resulting from an alleged act of rape or incest; or

  (c)  When there is a fetal malformation that is incompatible with the baby being born alive.

     SECTION 7.  Section 41-41-99, Mississippi Code of 1972, is amended as follows:

     41-41-99.  Opt-Out.  * * *(1) No abortion coverage may be provided by a qualified health plan offered through an exchange created pursuant to the federal Patient Protection and Affordable Care Act within the State of Mississippi.

 * * *(2)  This limitation shall not apply to an abortion performed (a) when the life of the mother is endangered by a physical disorder, physical illness or physical injury, including a life‑endangering physical condition caused by or arising from the pregnancy itself, or (b) when the pregnancy is the result of an alleged act of rape or incest.  The physician is required to maintain sufficient documentation in the medical record that supports the medical necessity for the abortion for one (1) of the reasons outlined in this subsection (2).

     SECTION 8.  Section 41-41-107, Mississippi Code of 1972, is amended as follows:

     41-41-107.  * * *(1) It shall be unlawful to knowingly give, sell, dispense, administer or otherwise provide or prescribe any abortion-inducing drug to a pregnant woman for the purpose of inducing an abortion in that pregnant woman, or enabling another person to induce an abortion in a pregnant woman * * *, unless the person who gives, sells, dispenses, administers or otherwise provides or prescribes the abortion‑inducing drug is a physician, and the provision or prescription of the abortion‑inducing drug satisfies the standard of care

 * * *(2)  Because the failure and complications from medical abortion increase with increasing gestational age, because the physical symptoms of medical abortion can be identical to the symptoms of ectopic pregnancy, and because abortion‑inducing drugs do not treat ectopic pregnancies but rather are contraindicated in ectopic pregnancies, the physician giving, selling, dispensing, administering or otherwise providing or prescribing the abortion‑inducing drug must first physically examine the woman and document in the woman's medical chart the gestational age and intrauterine location of the pregnancy before giving, selling, dispensing, administering or otherwise providing or prescribing the abortion‑inducing drug.

(3)  When any drug or chemical is used for the purpose of inducing an abortion, the drug or chemical must be administered in the same room and in the physical presence of the physician who gave, sold, dispensed or otherwise provided or prescribed the drug or chemical to the patient.

(4)  Every pregnant woman to whom a physician gives, sells, dispenses, administers or otherwise provides or prescribes any abortion‑inducing drug shall be provided with a copy of the drug's final printed label or FPL.

(5)  If the physician giving, selling, dispensing, administering or otherwise providing or prescribing any abortion‑inducing drug is unable to provide follow‑up care, the physician must have a signed contract with a physician who agrees to provide follow‑up care and produce that signed contract if requested by the patient or by the department.  The contract shall include the name and contact information of the follow‑up physician.  The contract follow‑up physician must have active hospital admitting privileges and gynecological/surgical privileges.

(6)  The physician giving, selling, dispensing, administering or otherwise providing or prescribing any abortion‑inducing drug, or an agent of the physician, must schedule a follow‑up visit for the woman at approximately fourteen (14) days after administration of the abortion‑inducing drug to provide treatment that meets the standard of care.

     Any person who intentionally, knowingly or recklessly violates any provision of this section shall be guilty of a felony and, upon conviction, be imprisoned for not less than one (1) year nor more than ten (10) years in the State Penitentiary and fined not more than Fifty Thousand Dollars ($50,000.00) but not less than Twenty-five Thousand Dollars ($25,000.00).

     SECTION 9.  Section 97-3-37, Mississippi Code of 1972, is amended as follows:

     97-3-37.  (1)  For purposes of the offenses enumerated in this subsection (1), the term "human being" includes an unborn child at every stage of gestation from conception until live birth and the term "unborn child" means a member of the species homo sapiens, at any stage of development, who is carried in the womb:

          (a)  Section 97-3-7, simple and aggravated assault and domestic violence;

          (b)  Section 97-3-15, justifiable homicide;

          (c)  Section 97-3-17, excusable homicide;

          (d)  Section 97-3-19, murder, capital murder;

          (e)  Section 97-3-27, homicide while committing a felony;

          (f)  Section 97-3-29, homicide while committing a misdemeanor;

          (g)  Section 97-3-33, killing a trespasser unnecessarily;

          (h)  Section 97-3-35, killing without malice in the heat of passion;

          (i)  Section 97-3-45, homicide by means of a dangerous animal;

          (j)  Section 97-3-47, all other homicides;

          (k)  Section 97-3-61, poisoning with intent to kill or injure.

     (2)  A person who intentionally injures a pregnant woman is guilty of a crime as follows:

          (a)  If the conduct results in a miscarriage or stillbirth by that individual, a felony punishable by imprisonment for not more than twenty (20) years or a fine of not more than Seven Thousand Five Hundred Dollars ($7,500.00), or both.

          (b)  If the conduct results in serious physical injury to the embryo or fetus, a felony punishable by imprisonment for not more than twenty (20) years or a fine of not more than Five Thousand Dollars ($5,000.00), or both.

          (c)  If the conduct results in minor physical injury to the embryo or fetus, a misdemeanor punishable by imprisonment for not more than six (6) months or a fine of not more than One Thousand Dollars ($1,000.00), or both.

     (3)  The provisions of this section shall not apply to any legal medical procedure performed by a licensed physician or other licensed medical professional * * *, including legal abortions, when done at the request of a mother of an unborn child or the mother's legal guardian, or to the lawful dispensing or administration of lawfully prescribed medication.

     (4)  Nothing contained in this section shall be construed to prohibit prosecution of an offender pursuant to the provisions of any other applicable statute.

     SECTION 10.  Section 97-5-51, Mississippi Code of 1972, is amended as follows:

     97-5-51.  (1)  Definitions.  For the purposes of this section:

          (a)  "Sex crime against a minor" means any offense under at least one (1) of the following statutes when committed by an adult against a minor who is under the age of sixteen (16): 

              (i)  Section 97-3-65 relating to rape;

              (ii)  Section 97-3-71 relating to rape and assault with intent to ravish;

              (iii)  Section 97-3-95 relating to sexual battery;

              (iv)  Section 97-5-23 relating to the touching of a child, mentally defective or incapacitated person or physically helpless person for lustful purposes;

              (v)  Section 97-5-41 relating to the carnal knowledge of a stepchild, adopted child or child of a cohabiting partner;

              (vi)  Section 97-5-33 relating to exploitation of children;

              (vii)  Section 97-3-54.1(1)(c) relating to procuring sexual servitude of a minor;

              (viii)  Section 43-47-18 relating to sexual abuse of a vulnerable person;

              (ix)  Section 97-1-7 relating to the attempt to commit any of the offenses listed in this subsection;

              (x)  Section 97-29-51 relating to procuring sexual services of a minor; and

              (xi)  Section 43-47-18 and Section 43-47-19 relating to sexual battery abuse of a vulnerable person who is a minor.

          (b)  "Mandatory reporter" means any of the following individuals performing their occupational duties:  health care practitioner, clergy member, teaching or child care provider, law enforcement officer, or commercial image processor.

          (c)  "Health care practitioner" means any individual who provides health care services, including a physician, surgeon, physical therapist, psychiatrist, psychologist, medical resident, medical intern, hospital staff member, licensed nurse, midwife and emergency medical technician or paramedic.

          (d)  "Clergy member" means any priest, rabbi or duly ordained deacon or minister.

          (e)  "Teaching or child care provider" means anyone who provides training or supervision of a minor under the age of sixteen (16), including a teacher, teacher's aide, principal or staff member of a public or private school, social worker, probation officer, foster home parent, group home or other child care institutional staff member, personnel of residential home facilities, a licensed or unlicensed day care provider.

          (f)  "Commercial image processor" means any person who, for compensation:  (i) develops exposed photographic film into negatives, slides or prints; (ii) makes prints from negatives or slides; or (iii) processes or stores digital media or images from any digital process, including, but not limited to, website applications, photography, live streaming of video, posting, creation of power points or any other means of intellectual property communication or media including conversion or manipulation of still shots or video into a digital show stored on a photography site or a media storage site.

          (g)  "Caretaker" means any person legally obligated to provide or secure adequate care for a minor under the age of sixteen (16), including a parent, guardian, tutor, legal custodian or foster home parent.

     (2)  (a)  Mandatory reporter requirement.  A mandatory reporter shall make a report if it would be reasonable for the mandatory reporter to suspect that a sex crime against a minor has occurred.

          (b)  Failure to file a mandatory report shall be punished as provided in this section.

          (c)  Reports made under this section and the identity of the mandatory reporter are confidential except when the court determines the testimony of the person reporting to be material to a judicial proceeding or when the identity of the reporter is released to law enforcement agencies and the appropriate prosecutor.  The identity of the reporting party shall not be disclosed to anyone other than law enforcement or prosecutors except under court order; violation of this requirement is a misdemeanor.  Reports made under this section are for the purpose of criminal investigation and prosecution only and information from these reports is not a public record.  Disclosure of any information by the prosecutor shall conform to the Mississippi Uniform Rules of Circuit and County Court Procedure.

          (d)  Any mandatory reporter who makes a required report under this section or participates in a judicial proceeding resulting from a mandatory report shall be presumed to be acting in good faith.  Any person or institution reporting in good faith shall be immune from any liability, civil or criminal, that might otherwise be incurred or imposed, except any person performing or attempting to perform an illegal abortion.

     (3)  (a)  Mandatory reporting procedure.  A report required under subsection (2) must be made immediately to the law enforcement agency in whose jurisdiction the reporter believes the sex crime against the minor occurred.  Except as otherwise provided in this subsection (3), a mandatory reporter may not delegate to any other person the responsibility to report, but shall make the report personally.

              (i)  The reporting requirement under this subsection (3) is satisfied if a mandatory reporter in good faith reports a suspected sex crime against a minor to the Department of Child Protection Services under Section 43-21-353.

              (ii)  The reporting requirement under this subsection (3) is satisfied if a mandatory reporter reports a suspected sex crime against a minor by following a reporting procedure that is imposed:

                   1.  By state agency rule as part of licensure of any person or entity holding a state license to provide services that include the treatment or education of abused or neglected children; or

                   2.  By statute.

          (b)  Contents of the report.  The report shall identify, to the extent known to the reporter, the following:

              (i)  The name and address of the minor victim;

              (ii)  The name and address of the minor's caretaker;

              (iii)  Any other pertinent information known to the reporter.

     (4)  A law enforcement officer who receives a mandated report under this section shall file an affidavit against the offender on behalf of the State of Mississippi if there is probable cause to believe that the offender has committed a sex crime against a minor.

     (5)  Collection of forensic samples.  (a)  (i)  When an abortion is performed on a minor who is less than fourteen (14) years of age at the time of the abortion procedure, fetal tissue extracted during the abortion shall be collected in accordance with rules and regulations adopted pursuant to this section if it would be reasonable to suspect that the pregnancy being terminated is the result of a sex crime against a minor.

              (ii)  When a minor who is under sixteen (16) years of age gives birth to an infant, umbilical cord blood shall be collected, if possible, in accordance with rules and regulations adopted pursuant to this section if it would be reasonable to suspect that the minor's pregnancy resulted from a sex crime against a minor.

              (iii)  It shall be reasonable to suspect that a sex crime against a minor has occurred if the mother of an infant was less than sixteen (16) years of age at the time of conception and at least one (1) of the following conditions also applies:

                   1.  The mother of the infant will not identify the father of the infant;

                   2.  The mother of the infant lists the father of the infant as unknown;

                   3.  The person the mother identifies as the father of the infant disputes his fatherhood;

                   4.  The person the mother identifies as the father of the infant is twenty-one (21) years of age or older; or

                   5.  The person the mother identifies as the father is deceased.

          (b)  The State Medical Examiner shall adopt rules and regulations consistent with Section 99-49-1 that prescribe:

              (i)  The amount and type of fetal tissue or umbilical cord blood to be collected pursuant to this section;

              (ii)  Procedures for the proper preservation of the tissue or blood for the purpose of DNA testing and examination;

              (iii)  Procedures for documenting the chain of custody of such tissue or blood for use as evidence;

              (iv)  Procedures for proper disposal of fetal tissue or umbilical cord blood collected pursuant to this section;

              (v)  A uniform reporting instrument mandated to be utilized, which shall include the complete residence address and name of the parent or legal guardian of the minor who is the subject of the report required under this subsection (5); and

              (vi)  Procedures for communication with law enforcement agencies regarding evidence and information obtained pursuant to this section.

     (6)  Penalties.  (a)  A person who is convicted of a first offense under this section shall be guilty of a misdemeanor and fined not more than Five Hundred Dollars ($500.00).

          (b)  A person who is convicted of a second offense under this section shall be guilty of a misdemeanor and fined not more than One Thousand Dollars ($1,000.00), or imprisoned for not more than thirty (30) days, or both.

          (c)  A person who is convicted of a third or subsequent offense under this section shall be guilty of a misdemeanor and fined not more than Five Thousand Dollars ($5,000.00), or imprisoned for not more than one (1) year, or both.

     (7)  A health care practitioner or health care facility shall be immune from any penalty, civil or criminal, for good-faith compliance with any rules and regulations adopted pursuant to this section.

     SECTION 11.  Section 41-41-113, Mississippi Code of 1972, is amended as follows:

     41-41-113.  (1)  All remedies under the statutory laws of this state are available if there is failure to comply with the requirements of Sections 41-41-101 through 41-41-117.

     (2)  No civil liability may be assessed against the pregnant woman upon whom the drug-induced abortion is performed, except as otherwise provided by law.

     (3)  In any legal action for failure to comply with the requirements of Sections 41-41-101 through 41-41-117, the court, when requested, shall allow a woman to proceed using solely her initials or a pseudonym and may close any proceedings in the case and enter other protective orders to preserve the privacy of the woman upon whom the drug-induced abortion was performed.

     SECTION 12.  Section 41-41-115, Mississippi Code of 1972, is amended as follows:

     41-41-115.  (1)  Nothing in Sections 41-41-101 through 41-41-117 shall be construed as creating or recognizing a right to abortion.

     (2)  It is not the intention of Sections 41-41-101 through 41-41-117 to make lawful * * *an any abortion that is currently unlawful.

     SECTION 13.  Section 41-75-1, Mississippi Code of 1972, is amended as follows:

     41-75-1.  For the purpose of this chapter:

          (a)  "Ambulatory surgical facility" means a publicly or privately owned institution that is primarily organized, constructed, renovated or otherwise established for the purpose of providing elective surgical treatment of "outpatients" whose recovery, under normal and routine circumstances, will not require "inpatient" care.  The facility defined in this paragraph does not include the offices of private physicians or dentists, whether practicing individually or in groups, but does include organizations or facilities primarily engaged in that outpatient surgery, whether using the name "ambulatory surgical facility" or a similar or different name.  That organization or facility, if in any manner considered to be operated or owned by a hospital or a hospital holding, leasing or management company, either for profit or not for profit, is required to comply with all licensing agency ambulatory surgical licensure standards governing a "hospital affiliated" facility as adopted under Section 41-9-1 et seq., provided that the organization or facility does not intend to seek federal certification as an ambulatory surgical facility as provided for at 42 CFR, Parts 405 and 416.  If the organization or facility is to be operated or owned by a hospital or a hospital holding, leasing or management company and intends to seek federal certification as an ambulatory facility, then the facility is considered to be "freestanding" and must comply with all licensing agency ambulatory surgical licensure standards governing a "freestanding" facility.

     If the organization or facility is to be owned or operated by an entity or person other than a hospital or hospital holding, leasing or management company, then the organization or facility must comply with all licensing agency ambulatory surgical facility standards governing a "freestanding" facility.

          (b)  "Hospital affiliated" ambulatory surgical facility  means a separate and distinct organized unit of a hospital or a building owned, leased, rented or utilized by a hospital and located in the same county in which the hospital is located, for the primary purpose of performing ambulatory surgery procedures.  The facility is not required to be separately licensed under this chapter and may operate under the hospital's license in compliance with all applicable requirements of Section 41-9-1 et seq.

          (c)  "Freestanding" ambulatory surgical facility means a separate and distinct facility or a separate and distinct organized unit of a hospital owned, leased, rented or utilized by a hospital or other persons for the primary purpose of performing ambulatory surgery procedures.  The facility must be separately licensed as defined in this section and must comply with all licensing standards promulgated by the licensing agency under this chapter regarding a "freestanding" ambulatory surgical facility.  Further, the facility must be a separate, identifiable entity and must be physically, administratively and financially independent and distinct from other operations of any other health facility, and shall maintain a separate organized medical and administrative staff.  Furthermore, once licensed as a "freestanding" ambulatory surgical facility, the facility shall not become a component of any other health facility without securing a certificate of need to do that.

          (d)  "Ambulatory surgery" means surgical procedures that are more complex than office procedures performed under local anesthesia, but less complex than major procedures requiring prolonged postoperative monitoring and hospital care to ensure safe recovery and desirable results.  General anesthesia is used in most cases.  The patient must arrive at the facility and expect to be discharged on the same day.  Ambulatory surgery shall only be performed by physicians or dentists licensed to practice in the State of Mississippi.

          (e)  "Abortion" means the use or prescription of any instrument, medicine, drug or any other substances or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth or to remove a dead fetus.  * * *Abortion procedures after the first trimester shall only be performed at a Level I abortion facility or an ambulatory surgical facility or hospital licensed to perform that service.

          (f)  "Abortion facility" means a facility operating substantially for the purpose of performing abortions and is a separate identifiable legal entity from any other health care facility.  * * * Abortions shall only be performed by physicians licensed to practice in the State of Mississippi.  All physicians associated with the abortion facility must have admitting privileges at a local hospital and staff privileges to replace local hospital on‑staff physicians.  All physicians associated with an abortion facility must be board certified or eligible in obstetrics and gynecology, and a staff member trained in CPR shall always be present at the abortion facility when it is open.  The term "abortion facility" includes physicians' offices that are used substantially for the purpose of performing abortions.  An abortion facility operates substantially for the purpose of performing abortions if any of the following conditions are met:

 * * *(i)  The abortion facility is a provider for performing ten (10) or more abortion procedures per calendar month during any month of a calendar year, or one hundred (100) or more in a calendar year.

   (ii)  The abortion facility, if operating less than twenty (20) days per calendar month, is a provider for performing ten (10) or more abortion procedures, or performing a number of abortion procedures that would be equivalent to ten (10) procedures per month, if the facility were operating twenty (20) or more days per calendar month, in any month of a calendar year.

   (iii)  The abortion facility holds itself out to the public as an abortion provider by advertising by any public means, such as newspaper, telephone directory, magazine or electronic media, that it performs abortions.

   (iv)  The facility applies to the licensing agency for licensure as an abortion facility.

          (g)  "Licensing agency" means the State Department of Health.

          (h)  "Operating" an abortion facility means that the facility is open for any period of time during a day * * *and has on site at the facility or on call a physician licensed to practice in the State of Mississippi available to provide abortions.

 * * *An abortion facility may apply to be licensed as a Level I facility or a Level II facility by the licensing agency.  Level II abortion facilities shall be required to meet minimum standards for abortion facilities as established by the licensing agency.  Level I abortion facilities shall be required to meet minimum standards for abortion facilities and minimum standards for ambulatory surgical facilities as established by the licensing agency.

Any abortion facility that begins operation after June 30, 1996, shall not be located within one thousand five hundred (1,500) feet from the property on which any church, school or kindergarten is located.  An abortion facility shall not be in violation of this paragraph if it is in compliance with this paragraph on the date it begins operation and the property on which a church, school or kindergarten is located within one thousand five hundred (1,500) feet from the facility.

          (i)  "Freestanding emergency room" is a facility open twenty-four (24) hours a day for the treatment of urgent and emergent medical conditions which is not located on a hospital campus.  In order to be eligible for licensure under this chapter, the freestanding emergency room shall be located at least fifteen (15) miles from the nearest hospital-based emergency room in any rural community where the federal CMMS had previously designated a rural hospital as a critical access hospital and that designation has been revoked.

          (j)  "Post-acute residential brain injury rehabilitation facility" is a facility containing no more than twelve (12) beds providing medically directed long-term but nonacute rehabilitation to patients who have acquired brain injury.  In order to be eligible for licensure under this chapter, the post-acute residential brain injury rehabilitation facility shall be located at least twenty-five (25) miles from the nearest acute care rehabilitation hospital and at least five (5) miles from the boundaries of any municipality having a population of ten thousand (10,000) or more, according to the most recent federal decennial census, at the time that facility is established.

     SECTION 14.  Section 41-75-3, Mississippi Code of 1972, is amended as follows:

     41-75-3.  The purpose of this chapter is to protect and promote the public welfare by providing for the development, establishment and enforcement of certain standards in the maintenance and operation of ambulatory surgical facilities * * * and abortion facilities and freestanding emergency rooms and post-acute residential brain injury rehabilitation facilities, which will ensure safe, sanitary, and reasonably adequate care of individuals in such facilities.

     SECTION 15.  Section 41-75-5, Mississippi Code of 1972, is amended as follows:

     41-75-5.  No person as defined in Section 41-7-173, acting severally or jointly with any other person, shall establish, conduct, operate or maintain an ambulatory surgical facility * * * or an abortion facility or a freestanding emergency room or a post-acute residential brain injury rehabilitation facility in this state without a license under this chapter.

     In order to receive a license for a post-acute residential brain injury rehabilitation facility under this chapter, the recipient of the license must agree in writing that the facility will not at any time participate in the Medicaid program (Section 43-13-101 et seq.) or admit or keep any patients in the facility who are participating in the Medicaid program.  This written agreement by the recipient of the license shall be fully binding on any later owner of the facility, if the ownership of the facility is transferred at any time after the issuance of the license.  Agreement that the facility will not participate in the Medicaid program shall be a condition of the issuance of a license for a post-acute residential brain injury rehabilitation facility to any person under this chapter, and if such facility at any time after the issuance of the license, regardless of the ownership of the facility, participates in the Medicaid program or admits or keeps any patients in the facility who are participating in the Medicaid program, the licensing agency shall revoke the license of the facility, at the time that the department determines, after a hearing complying with due process, that the facility has failed to comply with any of the conditions upon which the license was issued, as provided in this section and in the written agreement by the recipient of the license.

     SECTION 16.  Section 41-75-13, Mississippi Code of 1972, is amended as follows:

     41-75-13.  The licensing agency shall adopt, amend, promulgate and enforce rules, regulations and standards, including classifications, with respect to ambulatory surgical facilities and * * *abortion facilities, freestanding emergency rooms and post-acute residential brain injury rehabilitation facilities licensed, or which may be licensed, to further the accomplishment of the purpose of this chapter in protecting and promoting the health, safety and welfare of the public by ensuring adequate care of individuals receiving services from such facilities.  * * * The licensing agency also shall adopt, amend, promulgate and enforce rules, regulations and standards with respect to the enforcement of the informed consent requirements of Sections 41‑41‑31 through 41‑41‑39 at abortion facilities.  Such The rules, regulations and standards for freestanding emergency rooms shall include a patient transfer policy under which the freestanding emergency room enters into an agreement with a general hospital for a protocol for patient transfers.  * * *Such The rules, regulations and standards shall be adopted and promulgated by the licensing agency in accordance with the provisions of Section 25-43-1 et seq., and shall be recorded and indexed in a book to be maintained by the licensing agency in its main office in the State of Mississippi, entitled "Rules and Regulations for Operation of Ambulatory Surgical Facilities * * *and Abortion Facilities, Freestanding Emergency Room Facilities and Post-Acute Residential Brain Injury Rehabilitation Facilities."  The book shall be open and available to all ambulatory surgical facilities and * * *abortion facilities, freestanding emergency rooms and post-acute residential brain injury rehabilitation facilities and the public during regular business hours.

     SECTION 17.  Section 73-25-29, Mississippi Code of 1972, is amended as follows:

     73-25-29.  The grounds for the nonissuance, suspension, revocation or restriction of a license or the denial of reinstatement or renewal of a license are:

          (1)  Habitual personal use of narcotic drugs, or any other drug having addiction-forming or addiction-sustaining liability.

          (2)  Habitual use of intoxicating liquors, or any beverage, to an extent which affects professional competency.

          (3)  Administering, dispensing or prescribing any narcotic drug, or any other drug having addiction-forming or addiction-sustaining liability otherwise than in the course of legitimate professional practice.

          (4)  Conviction of violation of any federal or state law regulating the possession, distribution or use of any narcotic drug or any drug considered a controlled substance under state or federal law, a certified copy of the conviction order or judgment rendered by the trial court being prima facie evidence thereof, notwithstanding the pendency of any appeal.

          (5)  Procuring, or attempting to procure, or aiding in, an abortion  * * *that is not medically indicated.

          (6)  Conviction of a felony or misdemeanor involving moral turpitude, a certified copy of the conviction order or judgment rendered by the trial court being prima facie evidence thereof, notwithstanding the pendency of any appeal.

          (7)  Obtaining or attempting to obtain a license by fraud or deception.

          (8)  Unprofessional conduct, which includes, but is not limited to:

              (a)  Practicing medicine under a false or assumed name or impersonating another practitioner, living or dead.

              (b)  Knowingly performing any act which in any way assists an unlicensed person to practice medicine.

              (c)  Making or willfully causing to be made any flamboyant claims concerning the licensee's professional excellence.

              (d)  Being guilty of any dishonorable or unethical conduct likely to deceive, defraud or harm the public.

              (e)  Obtaining a fee as personal compensation or gain from a person on fraudulent representation of a disease or injury condition generally considered incurable by competent medical authority in the light of current scientific knowledge and practice can be cured or offering, undertaking, attempting or agreeing to cure or treat the same by a secret method, which he refuses to divulge to the board upon request.

              (f)  Use of any false, fraudulent or forged statement or document, or the use of any fraudulent, deceitful, dishonest or immoral practice in connection with any of the licensing requirements, including the signing in his professional capacity any certificate that is known to be false at the time he makes or signs such certificate.

              (g)  Failing to identify a physician's school of practice in all professional uses of his name by use of his earned degree or a description of his school of practice.

          (9)  The refusal of a licensing authority of another state or jurisdiction to issue or renew a license, permit or certificate to practice medicine in that jurisdiction or the revocation, suspension or other restriction imposed on a license, permit or certificate issued by such licensing authority which prevents or restricts practice in that jurisdiction, a certified copy of the disciplinary order or action taken by the other state or jurisdiction being prima facie evidence thereof, notwithstanding the pendency of any appeal.

          (10)  Surrender of a license or authorization to practice medicine in another state or jurisdiction or surrender of membership on any medical staff or in any medical or professional association or society while under disciplinary investigation by any of those authorities or bodies for acts or conduct similar to acts or conduct which would constitute grounds for action as defined in this section.

          (11)  Final sanctions imposed by the United States Department of Health and Human Services, Office of Inspector General or any successor federal agency or office, based upon a finding of incompetency, gross misconduct or failure to meet professionally recognized standards of health care; a certified copy of the notice of final sanction being prima facie evidence thereof.  As used in this paragraph, the term "final sanction" means the written notice to a physician from the United States Department of Health and Human Services, Officer of Inspector General or any successor federal agency or office, which implements the exclusion.

          (12)  Failure to furnish the board, its investigators or representatives information legally requested by the board.

          (13)  Violation of any provision(s) of the Medical Practice Act or the rules and regulations of the board or of any order, stipulation or agreement with the board.

          (14)  Violation(s) of the provisions of Sections 41-121-1 through 41-121-9 relating to deceptive advertisement by health care practitioners.

          (15)  Performing or inducing an abortion on a woman * * *in violation of any provision of Sections 41‑41‑131 through 41‑41‑145.

          (16)  Performing an abortion on a pregnant woman after determining that the unborn human individual that the pregnant woman is carrying has a detectable fetal heartbeat as provided in Section 41-41-34.1.

     In addition to the grounds specified above, the board shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153.  The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be.  If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.

     SECTION 18.  Sections 41-41-31, 41-41-33, 41-41-34, 41-41-35, 41-41-37, 41-41-45, 41-41-51, 41-41-53, 41-41-55, 41-41-57, 41-41-59, 41-41-61, 41-41-63, 41-41-71, 41-41-80, 41-41-109, 41-41-111, 41-75-16, 41-75-18, 41-75-26 and 41-75-29, Mississippi Code of 1972, which provide for lawful abortions, partial birth abortions and abortion facilities are repealed.

     SECTION 19.  Section 41-41-151, Mississippi Code of 1972, is brought forward as follows:

     41-41-151.  Sections 41-41-151 through 41-41-169 may be cited as the "Mississippi Unborn Child Protection from Dismemberment Abortion Act."

     SECTION 20.  Section 41-41-153, Mississippi Code of 1972, is brought forward as follows:

     41-41-153.  For the purposes of Sections 41-41-151 through 41-41-169, the following terms shall be defined as provided in this section:

          (a)  "Abortion" means the use or prescription of any instrument, medicine, drug, or any other substance or device:

              (i)  To purposely kill the unborn child of a woman known to be pregnant; or

              (ii)  To purposely terminate the pregnancy of a woman known to be pregnant, with a purpose other than:

                   1.  After viability to produce a live birth and preserve the life and health of the child born alive; or

                   2.  To remove a dead unborn child.

          (b)  "Attempt to perform an abortion" means to do or omit to do anything that, under the circumstances as the actor believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in oneself performing an abortion.  Such substantial steps include, but are not limited to:

              (i)  Agreeing with an individual to perform an abortion on that individual or on some other person, whether or not the term "abortion" is used in the agreement, and whether or not the agreement is contingent on another factor such as receipt of payment or a determination of pregnancy; or

              (ii)  Scheduling or planning a time to perform an abortion on an individual, whether or not the term "abortion" is used, and whether or not the performance is contingent on another factor such as receipt of payment or a determination of pregnancy.

     This definition shall not be construed to require that an abortion procedure actually must be initiated for an attempt to occur.

          (c)  "Dismemberment abortion" means, with the purpose of causing the death of an unborn child, purposely to dismember a living unborn child and extract him or her one piece at a time from the uterus through use of clamps, grasping forceps, tongs, scissors or similar instruments that, through the convergence of two rigid levers, slice, crush, and/or grasp a portion of the unborn child's body to cut or rip it off.

     The term "dismemberment abortion" does not include an abortion that uses suction to dismember the body of the unborn child by sucking fetal parts into a collection container, although it does include an abortion in which a dismemberment abortion is used to cause the death of an unborn child but suction is subsequently used to extract fetal parts after the death of the unborn child.

          (d)  "Physician" means a person licensed to practice medicine and surgery or osteopathic medicine and surgery, or otherwise legally authorized to perform an abortion.

          (e)  "Purposely" means the following:  A person acts purposely with respect to a material element of an offense when:

              (i)  If the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and

              (ii)  If the element involves the attendant circumstances, he is aware of the existence of those circumstances or he believes or hopes that they exist.

          (f)  "Serious health risk to the unborn child's mother" means that in reasonable medical judgment, she has a condition that so complicates her medical condition that it necessitates the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions.  No such condition may be determined to exist if it is based on a claim or diagnosis that the woman will engage in conduct that she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.

          (g)  "Woman" means a female human being whether or not she has reached the age of majority.

     SECTION 21.  Section 41-41-155, Mississippi Code of 1972, is brought forward as follows:

     41-41-155.  (1)  Notwithstanding any other provision of law, it shall be unlawful for any person to purposely perform or attempt to perform a dismemberment abortion and thereby kill an unborn child unless necessary to prevent serious health risk to the unborn child's mother.

     (2)  A person accused in any proceeding of unlawful conduct under subsection (1) of this section may seek a hearing before the State Board of Medical Licensure on whether the dismemberment abortion was necessary to prevent serious health risk to the unborn child's mother.  The board's findings are admissible on that issue at any trial in which the unlawful conduct is alleged.  Upon a motion of the person accused, the court shall delay the beginning of the trial for not more than thirty (30) days to permit such a hearing to take place.

     (3)  No woman upon whom an abortion is performed or attempted to be performed shall be thereby liable for performing or attempting to perform a dismemberment abortion.  No nurse, technician, secretary, receptionist or other employee or agent who is not a physician but who acts at the direction of a physician, and no pharmacist or other individual who is not a physician but who fills a prescription or provides instruments or materials used in an abortion at the direction of or to a physician shall be thereby liable for performing or attempting to perform a dismemberment abortion.

     (4)  Sections 41-41-151 through 41-41-169 does not prevent abortion for any reason, including rape and incest by any other method.

     SECTION 22.  Section 41-41-157, Mississippi Code of 1972, is brought forward as follows:

     41-41-157.  (1)  Civil and criminal penalties for violations of Sections 41-41-151 through 41-41-169 may be imposed under the following priority:

          (a)  Injunctive relief;

          (b)  Civil cause of action; and

          (c)  Criminal action.

     (2)  A cause of action for injunctive relief against a person who has performed or attempted to perform a dismemberment abortion in violation of Section 41-41-155 may be maintained as a priority action by:

          (a)  A woman upon whom such a dismemberment abortion was performed or attempted to be performed;

          (b)  A person who is the spouse, parent or guardian of, or a current or former licensed health care provider of, a woman upon whom such a dismemberment abortion was performed or attempted to be performed; or

          (c)  A prosecuting attorney with appropriate jurisdiction.

     (3)  The injunction shall prevent the defendant from performing or attempting to perform further dismemberment abortions in violation of Section 41-41-155 in this state.

     SECTION 23.  Section 41-41-159, Mississippi Code of 1972, is brought forward as follows:

     41-41-159.  (1)  Only in the event a cause of action for injunctive relief under Section 41-41-157 has been denied by a court of competent jurisdiction, a cause of action for civil damages against a person who has performed a dismemberment abortion in violation of Section 41-41-155 may be maintained by:

          (a)  Any woman upon whom a dismemberment abortion has been performed in violation of Section 41-41-155;

          (b)  The father of the unborn child, if married to the woman at the time the dismemberment abortion was performed; or

          (c)  If the woman had not attained the age of eighteen (18) years at the time of the dismemberment abortion or has died as a result of the abortion, the maternal grandparents of the unborn child.

     (2)  No damages may be awarded a plaintiff if the pregnancy resulted from the plaintiff's criminal conduct.

     (3)  Damages awarded in such an action shall include:

          (a)  Money damages for all injuries, psychological and physical, occasioned by the dismemberment abortion; and

          (b)  Statutory damages equal to three (3) times the cost of the dismemberment abortion.

     SECTION 24.  Section 41-41-161, Mississippi Code of 1972, is brought forward as follows:

     41-41-161.  (1)  If judgment is rendered in favor of the plaintiff in an action described in Section 41-41-157 or 41-41-159, the court shall also render judgment for a reasonable attorney's fee in favor of the plaintiff against the defendant.

     (2)  If judgment is rendered in favor of the defendant in an action described in Section 41-41-157 or 41-41-159 and the court finds that the plaintiff's suit was frivolous and brought in bad faith, the court shall render judgment for a reasonable attorney's fee in favor of the defendant against the plaintiff.

     (3)  No attorney's fee may be assessed against the woman upon whom a dismemberment abortion was performed or attempted to be performed except in accordance with subsection (2) of this section.

     SECTION 25.  Section 41-41-163, Mississippi Code of 1972, is brought forward as follows:

     41-41-163.  Only in the event a judgment is rendered in favor of the defendant in an action described in Section 41-41-157 or 41-41-159, a district attorney with jurisdiction may bring an indictment for criminal punishment under this section.  Any person who violates Section 41-41-155 is guilty of a felony and, upon conviction, shall be punished by a fine not more than Ten Thousand Dollars ($10,000.00), or commitment to the custody of the Department of Corrections for not more than two (2) years, or both.

     SECTION 26.  Section 41-41-165, Mississippi Code of 1972, is brought forward as follows:

     41-41-165.  In every civil, criminal, or administrative proceeding or action brought under Sections 41-41-151 through 41-41-169, the court shall rule whether the anonymity of any woman upon whom a dismemberment abortion has been performed or attempted to be performed shall be preserved from public disclosure if she does not give her consent to the disclosure.  The court, upon motion or sua sponte, shall make such a ruling and, upon determining that her anonymity should be preserved, shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity from public disclosure.  Each such order shall be accompanied by specific written findings explaining why the anonymity of the woman should be preserved from public disclosure, why the order is essential to that end, how the order is narrowly tailored to serve that interest, and why no reasonable less restrictive alternative exists.  In the absence of written consent of the woman upon whom a dismemberment abortion has been performed or attempted to be performed, anyone other than a public official who brings an action under Section 41-41-157 or 41-41-159 shall do so under a pseudonym.  This section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant or from attorneys for the defendant.

     SECTION 27.  Section 41-41-167, Mississippi Code of 1972, is brought forward as follows:

     41-41-167.  Nothing in Sections 41-41-151 through 41-41-169 shall be construed as creating or recognizing a right to abortion, nor a right to a particular method of abortion.

     SECTION 28.  Section 41-41-169, Mississippi Code of 1972, is brought forward as follows:

     41-41-169.  If any one or more provisions, sections, subsections, sentences, clauses, phrases or words of Sections 41-41-151 through 41-41-169 or the application thereof to any person or circumstance is found to be unconstitutional, the same is declared to be severable and the balance of Sections 41-41-151 through 41-41-169 shall remain effective notwithstanding such unconstitutionality.  The Legislature declares that it would have passed Sections 41-41-151 through 41-41-169, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one or more provisions, sections, subsections, sentences, clauses, phrases or words be declared unconstitutional.

     SECTION 29.  This act shall take effect and be in force from and after July 1, 2021.