Bill Text: MS SB2159 | 2018 | Regular Session | Introduced


Bill Title: Use of public or grant funds for abortion or family planning services; strictly prohibit.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2018-01-30 - Died In Committee [SB2159 Detail]

Download: Mississippi-2018-SB2159-Introduced.html

MISSISSIPPI LEGISLATURE

2018 Regular Session

To: Public Health and Welfare

By: Senator(s) Watson

Senate Bill 2159

AN ACT TO AMEND SECTION 41-41-91, MISSISSIPPI CODE OF 1972, TO SPECIFICALLY PROHIBIT THE USE OF PUBLIC FUNDS, WHETHER BY DIRECT APPROPRIATION BY THE LEGISLATURE, BY GRANT FUNDING, BY STUDENT TUITION OR FEES, OR BY THE USE OF PUBLIC FACILITIES, FOR AN ABORTION OR FOR TRAINING TO PERFORM AN ABORTION OR FOR FAMILY PLANNING SERVICES; AND FOR RELATED PURPOSES.

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

     SECTION 1.  Section 41-41-91, Mississippi Code of 1972, is amended as follows:

     41-41-91.  (1)  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.

     (2)  (a)  Title.  This subsection (2) may be known and cited as the "Defunding the Abortion Industry Act."

          (b)  Legislative findings and purposes.

              (i)  The Legislature of the State of Mississippi finds that:

                   1.  The State of Mississippi voluntarily participates in several federal programs that provide funds for family planning services.  Among these programs are Title X of the Public Health Service Act which provides project grants to public and private agencies for family planning services and Title XX of the Social Security Act which provides block grants to the states for social services, including family planning.

                   2.  Title X specifies that funds may not be used to finance abortions or abortion-related activity.  Specifically, Title X provides that "none of the funds appropriated...shall be used in programs where abortion is a method of family planning" (42 USC Section 300a-6).

                   3.  Title XX funds may not be used for the provision of medical care.  Moreover, any Title XX funds used to match Title X funds may not be used to finance abortions or abortion-related activity.

                   4.  In addition to federal family planning funds, the State of Mississippi does not provide state-originated funds for family planning.

                   5.  Section 41-41-91 prohibits the use of public funds for abortions performed in cases not involving threats to the life of the mother.

                   6.  Left unrestricted or unregulated, federal and any state funds for family planning services can, in some cases, effectively and indirectly subsidize contractors, individuals, organizations, or entities performing or inducing abortions, referring for abortions, or counseling in favor of abortions through shared administrative costs, overhead, employee salaries, rent, utilities, and various other expenses.

                   7.  When the federal or a state government appropriates public funds to establish a program, it is entitled to define the limits of that program.  Rust v. Sullivan, 500 U.S. 173, 194 (1991).

                   8.  The decision not to fund abortion places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy.  Rust v. Sullivan, 500 U.S. 173, 201 (1991).

                   9.  The government may rationally distinguish between abortion and other medical procedures because "no other procedure involves the purposeful termination of a potential life."  Harris v. McRae, 448 U.S. 297, 325 (1980).

                   10.  It is permissible for the State of Mississippi to engage in unequal subsidization of abortion and other medical services to encourage alternative activity deemed in the public interest.  Rust v. Sullivan, 500 U.S. 173, 201 (1991).

                   11.  Requiring abortion-related activity to be completely separate from other activities that receive federal and/or state funding in no way denies any right to engage in abortion-related activities.  Rust v. Sullivan, 500 U.S. 173, 198 (1991).

                   12.  Women are best served by family planning providers who can address their comprehensive health care needs.  Some family planning providers are not equipped to address these needs.  For example, Planned Parenthood's internal surveys show that approximately seventy percent (70%) of women who visit their clinics do not follow-up with referrals to other medical facilities to have important health needs addressed.

              (ii)  Based on the findings in subparagraph (i) of this paragraph, the purposes of this subsection (2) are to:

                   1.  Advance the state's policy that normal childbirth is in the best interests of the well-being and common good of Mississippi's citizens and should be given preference, encouragement and support by law and state action;

                   2.  Ensure that public funds are not used to subsidize abortions directly or indirectly;

                   3.  Ensure that no federal family planning funds appropriated or dispersed by the state are used to pay the direct or indirect costs (including, but not limited to, administrative costs or expenses, overhead, employee salaries, rent, and telephone and other utilities) of abortion procedures, abortion referrals, or abortion counseling provided by family planning contractors;

                   4.  Ensure recipients of federal family planning funds that, as permitted by current law, affiliate with an independent, unsubsidized entity that performs or provides abortions, abortion referrals, or abortion counseling, do not use public funds to subsidize, either directly or indirectly, the provision of abortions, abortion counseling, or abortion referrals; and

                   5.  Guarantee that no state family planning funds shall be appropriated or dispersed to individuals, organizations, entities, or affiliates of individuals, organizations, or entities that perform, induce, refer for, or counsel on behalf of elective abortions.

          (c)  Definitions.  As used in this subsection (2) only:

                                    (i)  "Abortion" means the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the clinically diagnosable pregnancy of a woman with the knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child.  Such use, prescription or means is not an abortion if done with the intent to:

                   1.  Save the life or preserve the health of the unborn child;

                   2.  Remove a dead unborn child caused by spontaneous abortion; or

                   3.  Remove an ectopic pregnancy.

              (ii)  "Affiliate" means an organization that owns or controls or is owned or controlled, in whole or in part, by the other; related by shareholdings or other means of control; or a subsidiary, parent, or sibling corporation.

              (iii)  "Facility" or "medical facility" means any public or private hospital, clinic, center, medical school, medical training institution, health care facility, physician's office, infirmary, dispensary, ambulatory surgical treatment center, or other institution or location wherein medical care is provided to any person.

              (iv)  "Family planning contractor" and "contractor" mean an individual, organization, or entity that enters into a contract or agreement with the Mississippi Department of Health or other responsible department or agency to receive funds for and to provide family planning services.

              (v)  "Family planning services" means a range of acceptable methods to prevent, delay, space, or otherwise time pregnancy, including, but not limited to, natural family planning methods and infertility services.  Family planning services do not include abortion, abortion referrals, or counseling in favor of abortion.

              (vi)  "Federal family planning funds" means any federal money appropriated or dispersed by any state official, branch, department or agency, in whole or in part, for family planning services, including, but not limited to, funds under Title X and Title XX or other federal money accepted by the state, in whole or in part, for family planning services.

              (vii)  "Human cloning" means human asexual reproduction accomplished by 1. introducing the genetic material from one or more human somatic or embryonic cells into a fertilized or unfertilized oocyte whose nuclear material has been removed or inactivated before or after introduction, so as to produce an organism at any stage of development with a human or predominantly human genetic constitution; 2. artificially subdividing a human embryo at any time from the two-cell stage onward, such that more than one (1) human organism results; or 3. introducing pluripotent cells from any source into a human embryo, nonhuman embryo, or artificially manufactured human embryo or trophoblast, under conditions where the introduced cells generate all or most of the body tissues of the developing organism.

              (viii)  "Physician" means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the state in which the doctor performs such activity or any other individual legally authorized by the state to perform abortions.

                                    (ix)  "Prohibited human research" means:

                   1.  Any medical procedures, scientific or laboratory research, or other kinds of investigation that kill or injure the human subject, at any stage of development, of such research; or

                   2.  Any scientific or laboratory research or other kinds of investigation conducted on fetal tissue obtained from an abortion, unless the research is done to obtain evidence in a rape or incest investigation.

     "Prohibited human research" does not include:

                        a.  In vitro fertilization and accompanying embryo transfer to a woman's body;

                                                            b.  Research in the use of nuclear transfer or other cloning techniques to produce molecules; deoxyribonucleic acid; or cells other than human embryos, tissues, organs, plants, or animals other than humans; or

                        c.  Any diagnostic procedure that benefits the human subject to such tests.

              (x)  "Unborn child" means the offspring of human beings from conception until birth.

          (d)  Comprehensive prohibition on the use of public funds.

              (i)  Notwithstanding any other provision of law to the contrary, no public funds made available to any institution, board, commission, department, agency, official, or employee of the State of Mississippi, or of any local political subdivision thereof, whether such funds are made available by the government of the United States, the State of Mississippi, or a local governmental subdivision or are from any other public source, or monies paid by students as part of tuition or fees to a state university or a community college shall be used in any way for, to assist in, or to provide facilities for an abortion or for training to perform an abortion.

              (ii)  It shall be unlawful for any person employed by the state or any agency or political subdivision thereof, within the scope of the person's employment, to perform or assist in an abortion.

              (iii)  No fund or committee authorized by the state or any agency thereof for the special protection of women or children shall be authorized to use or distribute public funds for the payment of abortions, abortion referrals, abortion counseling, or abortion-related services.

              (iv)  No organization that receives funds authorized or appropriated by the state may use those funds to perform or promote abortions, provide counseling in favor of abortion, or to make referrals for abortions.

              (v)  The limitations in subparagraphs (i) through (iv) of this paragraph shall not apply to an abortion performed 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.

          (e)  Use of public facilities prohibited.

              (i)  It shall be unlawful for any public institution, public facility, public equipment, or other physical asset owned, leased, or controlled by the state or any agency or political subdivision thereof to be used for the purpose of performing or assisting an abortion.  This limitation shall not apply to an abortion performed 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.

              (ii)  It shall be unlawful for any public institution or facility to lease or sell its facilities to or property or permit the subleasing of its facilities or property to any physician or health facility for use in the provision or performance of abortion.  This limitation shall not apply to an abortion performed 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.

          (f)  Use of education-related fees prohibited.  No applicant, student, teacher or employee of any public school or university shall be required to pay any fees that would, in whole or in part, fund an abortion or insurance coverage for an abortion for any other applicant, stu­dent, teacher or employee of that school.

          (g)  Contracts with abortion providers prohibited/restricted.  No hospital, clinic, or other health facility owned or operated by the state, a county, a city, or other governmental entity shall enter into any contract with any physician or health facility under the terms of which such physician or health facility agrees to provide or perform abortions, except 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.

          (h)  Research grants restricted.

              (i)  Public funds shall not be expended, paid, or granted to or on behalf of an existing or proposed research project that involves the performance of abortion, human cloning, or prohibited human research.

              (ii)  No monies derived from an award of public funds shall be passed through to any other research project, person, or entity involved with the provision or performance of abortion, human cloning, or prohibited human research.

              (iii)  A research project that receives an award of public funds shall maintain financial records that demonstrate strict compliance with this subsection (2).

              (iv)  Any audit conducted pursuant to any grant or contract awarding public funds shall also certify whether there is compliance with this subsection (2) and shall note any noncompliance as a material audit finding.

          (i)  School-based health clinics.

              (i)  No facility operated on public school property or operated by a public school district and no employee of any such facility acting within the scope of such employee's employment shall provide any of the following services to public school students:

                   1.  Provision or performance of an abortion;

                   2.  Counseling in favor of an abortion;

                   3.  Referral for an abortion; or

                   4.  Dispensing drugs classified as "emergency contraception" by the federal Food and Drug Administration (FDA).

              (ii)  The State Department of Education and local school districts are prohibited from utilizing state funds for the procurement of abortions or distribution of drugs classified as "emergency contraception" by the federal Food and Drug Administration (FDA).

          (j)  Legal funds restricted.  No federal or any state funds which are appropriated by the state for the provision of legal services by private agencies, as authorized by statute previously or subsequently enacted, may be used, directly or indirectly, to:

              (i)  Advocate for a legal "right" to abortion;

              (ii)  Provide legal assistance with respect to any proceeding or litigation which seeks to procure any abortion, or to procure public funding for any abortion; or

              (iii)  Provide legal assistance with respect to any proceeding or litigation which seeks to compel the performance or assistance in the performance of any abortion, or the provision of facilities for the performance of any abortion.

          (k)  IOLTA accounts restricted.  No Interest on Lawyer Trust Accounts (IOLTA) funds may be used, directly or indirectly, to do any of the following:

              (i)  Advocate for a legal "right" to abortion;

              (ii)  Provide legal assistance with respect to any proceeding or litigation which seeks to procure or procure public funding for any abortion; or

              (iii)  Provide legal assistance with respect to any proceeding or litigation which seeks to compel the performance or assistance in the performance of any abortion or the provision of facilities for the performance of any abortion.

          (l)  Prohibitions on use of contract funds.

              (i)  No federal or state family planning funds shall be used by contractors of the Department of Health or other department or agency to pay the direct or indirect costs, including, but not limited to, administrative costs and expenses, overhead, employee salaries, rent, and telephone and other utilities of performing, inducing, referring for, or counseling in favor of abortions.

              (ii)  No state family planning funds shall be granted, appropriated, or distributed to individuals or organizations that perform, induce, refer for abortion, or counsel in favor of abortions, or that have affiliates that perform, induce, refer for, or counsel in favor of abortions.

              (iii)  A family planning contractor, individual, organization, or entity applying for federal family planning funds administered or distributed by the Department of Health or other appropriate department or agency must certify in writing on forms provided by the Department of Health or other appropriate department or agency that it will not, directly or indirectly, use the funds to perform, induce, refer for abortion, or counsel in favor of abortions.  Recipients of federal family planning funds administered or distributed through the Department of Health or other appropriate department or agency will annually submit a written certification of continued compliance.  Funds shall not be granted to any family planning contractor, individual, organization, or entity until the required certification has been received.

              (iv)  A family planning contractor, individual, organization, or entity applying for state family planning funds must certify in writing on forms provided by the Department of Health or other appropriate department or agency that it will not perform, induce, refer for, or counsel in favor of abortions, and that it does not have affiliates that perform, induce, refer for, or counsel in favor of abortions.  Recipients of state family planning funds through the Department of Health or other appropriate department or agency will submit an annual written certification of continued compliance.  Funds shall not be granted to any family planning contractor, individual, organization, or entity until required certification has been received.

              (v)  The Department of Health or other appropriate department or agency shall include in its financial audit a review of the use of appropriated federal and any state family planning funds to ensure compliance with this subsection (2).

          (m)  Failure to comply, recoupment of funds, and civil penalties.

              (i)  A family planning contractor that receives any federal and/or state family planning funds and is found not to be in compliance with the requirements of this subsection (2) will be enjoined from receiving any future federal and/or state family planning funds and will be liable to return to the state the full amount of federal and/or state family planning funds received within thirty (30) days.

              (ii)  Any violation of this subsection (2) may subject the family planning contractor to a civil penalty or fine up to One Thousand Dollars ($1,000.00) per day imposed by the Department of Health or other appropriate department or agency.

              (iii)  Both the Office of the Attorney General and the office of the district attorney for the county in which the violation occurred may institute legal action to enforce:

                   1.  Recoupment, collection or reimbursement of federal and/or state family planning funds; and

                   2.  Collection of civil penalties or fines.

          (n)  Construction.

              (i)  Nothing in this subsection (2) shall be construed as creating or recognizing a right to abortion.

              (ii)  Nothing in this subsection (2) shall be construed as creating or recognizing a right to federal and/or state funds for family planning services.

     SECTION 2.  This act shall take effect and be in force from and after July 1, 2018.


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