HB 321

1
A bill to be entitled
2An act relating to abortion; providing a short title;
3providing legislative findings; amending s. 390.011, F.S.;
4providing definitions; amending s. 390.0111, F.S.;
5requiring a physician performing or inducing an abortion
6to first make a determination of the probable
7postfertilization age of the unborn child; providing an
8exception; providing for disciplinary action against
9noncompliant physicians; prohibiting an abortion if the
10probable postfertilization age of the woman's unborn child
11is 20 or more weeks; providing exceptions; providing
12recordkeeping and reporting requirements for physicians;
13providing for rulemaking; requiring an annual report by
14the Department of Health; providing financial penalties
15for late reports; providing for civil actions to require
16reporting; providing for disciplinary action against
17noncompliant physicians; providing criminal penalties for
18intentional or reckless falsification of a report;
19providing criminal penalties for any person who
20intentionally or recklessly performs or attempts to
21perform an abortion in violation of specified provisions;
22providing that a penalty may not be assessed against a
23woman involved in such an abortion or attempt; providing
24for civil actions by certain persons for intentional or
25reckless violations; providing for actions for injunctive
26relief by certain persons for intentional violations;
27providing for award of attorney's fees in certain
28circumstances; requiring that in every civil or criminal
29proceeding or action brought under the court rule on
30whether the anonymity of any woman upon whom an abortion
31was performed or attempted shall be preserved from public
32disclosure if she does not give her consent to such
33disclosure; requiring specified findings if a court
34determines that the anonymity of the woman should be
35preserved from public disclosure; conforming cross-
36references; amending s. 765.113, F.S.; conforming a cross-
37reference; requiring rulemaking by the Department of
38Health by a specified date; providing an effective date.
39
40Be It Enacted by the Legislature of the State of Florida:
41
42     Section 1.  This act may be cited as the "Pain-Capable
43Unborn Child Protection Act."
44     Section 2.  The Legislature finds that:
45     (1)  By 20 weeks after fertilization there is substantial
46evidence that an unborn child has the physical structures
47necessary to experience pain.
48     (2)  There is substantial evidence that, by 20 weeks after
49fertilization, unborn children seek to evade certain stimuli in
50a manner that in an infant or an adult would be interpreted as a
51response to pain.
52     (3)  Anesthesia is routinely administered to unborn
53children who have developed 20 weeks or more past fertilization
54who undergo prenatal surgery.
55     (4)  Even before 20 weeks after fertilization, unborn
56children have been observed to exhibit hormonal stress responses
57to painful stimuli. Such responses were reduced when pain
58medication was administered directly to such unborn children.
59     (5)  This state has a compelling state interest in
60protecting the lives of unborn children from the stage at which
61substantial medical evidence indicates that they are capable of
62feeling pain.
63     Section 3.  Section 390.011, Florida Statutes, is amended
64to read:
65     390.011  Definitions.-As used in this chapter, the term:
66     (1)  "Abortion" means the termination of human pregnancy
67with an intention other than to produce a live birth or to
68remove a dead fetus.
69     (2)  "Abortion clinic" or "clinic" means any facility in
70which abortions are performed. The term does not include:
71     (a)  A hospital; or
72     (b)  A physician's office, provided that the office is not
73used primarily for the performance of abortions.
74     (3)  "Agency" means the Agency for Health Care
75Administration.
76     (4)  "Attempt to perform or induce an abortion" means an
77act, or an omission of a statutorily required act, that, under
78the circumstances as the person believes them to be, constitutes
79a substantial step in a course of conduct planned to culminate
80in the performance or induction of an abortion.
81     (5)(4)  "Department" means the Department of Health.
82     (6)  "Fertilization" means the fusion of a human
83spermatozoon with a human ovum.
84     (7)(5)  "Hospital" means a facility as defined in s.
85395.002(12) and licensed under chapter 395 and part II of
86chapter 408.
87     (8)  "Medical emergency" means a condition that, in
88reasonable medical judgment, so complicates the medical
89condition of the pregnant woman as to necessitate the immediate
90termination of her pregnancy to avert her death or for which a
91delay will create a serious risk of substantial and irreversible
92physical impairment of a major bodily function. A condition is
93not a medical emergency if it is based on a claim or diagnosis
94that the woman will engage in conduct that would result in her
95death or in substantial and irreversible physical impairment of
96a major bodily function.
97     (9)(6)  "Partial-birth abortion" means a termination of
98pregnancy in which the physician performing the termination of
99pregnancy partially vaginally delivers a living fetus before
100killing the fetus and completing the delivery.
101     (10)(7)  "Physician" means a physician licensed under
102chapter 458 or chapter 459 or a physician practicing medicine or
103osteopathic medicine in the employment of the United States.
104     (11)  "Postfertilization age" means the age of an unborn
105child as calculated from the fertilization of the human ovum.
106     (12)  "Probable postfertilization age of the unborn child"
107means what, in reasonable medical judgment, will with reasonable
108probability be the postfertilization age of the unborn child at
109the time an abortion is planned to be performed.
110     (13)  "Reasonable medical judgment" means a medical
111judgment that would be made by a reasonably prudent physician,
112knowledgeable about the case and the treatment possibilities
113with respect to the medical conditions involved.
114     (14)(8)  "Third trimester" means the weeks of pregnancy
115after the 24th week of pregnancy.
116     (15)  "Unborn child" or "fetus" means an individual
117organism of the species homo sapiens from fertilization until
118live birth.
119     Section 4.  A new subsection (1) is added to section
120390.0111, Florida Statutes, subsections (1) through (11) of that
121section are renumbered as subsections (2) through (12),
122respectively, and present subsection (10) and paragraph (b) of
123present subsection (11) of that section are amended, to read:
124     390.0111  Termination of pregnancies.-
125     (1)  PAIN-CAPABLE UNBORN CHILD PROTECTION.-
126     (a)1.  Except in the case of a medical emergency that
127prevents compliance with this subsection, an abortion may not be
128performed or induced or be attempted to be performed or induced
129unless the physician performing or inducing it has first made a
130determination of the probable postfertilization age of the
131unborn child or relied upon such a determination made by another
132physician. In making such a determination, a physician shall
133make such inquiries of the pregnant woman and perform or cause
134to be performed such medical examinations and tests as a
135reasonably prudent physician, knowledgeable about the case and
136the medical conditions involved, would consider necessary to
137perform in making an accurate diagnosis with respect to
138postfertilization age.
139     2.  Failure by any physician to conform to any requirement
140of this paragraph constitutes grounds for disciplinary action
141under s. 458.331 or s. 459.015.
142     (b)  A person may not perform or induce or attempt to
143perform or induce an abortion upon a woman when it has been
144determined, by the physician performing or inducing the abortion
145or by another physician upon whose determination that physician
146relies, that the probable postfertilization age of the woman's
147unborn child is 20 or more weeks unless, in reasonable medical
148judgment:
149     1.  She has a condition that so complicates her medical
150condition as to necessitate the abortion of her pregnancy to
151avert her death or to avert serious risk of substantial and
152irreversible physical impairment of a major bodily function; or
153     2.  It is necessary to preserve the life of an unborn
154child.
155
156Such a condition may not be deemed to exist if it is based on a
157claim or diagnosis that the woman will engage in conduct that
158would result in her death or in substantial and irreversible
159physical impairment of a major bodily function. With respect to
160the exceptions in subsections 1. and 2., the physician shall
161terminate the pregnancy in the manner that, in reasonable
162medical judgment, provides the best opportunity for the unborn
163child to survive, unless, in reasonable medical judgment,
164termination of the pregnancy in that manner would pose a greater
165risk either of the death of the pregnant woman or of the
166substantial and irreversible physical impairment of a major
167bodily function of the woman than would another available
168method. Such greater risk may not be deemed to exist if it is
169based on a claim or diagnosis that the woman will engage in
170conduct that would result in her death or in substantial and
171irreversible physical impairment of a major bodily function.
172     (c)  Any physician who performs or induces or attempts to
173perform or induce an abortion shall report to the department, on
174a schedule and in accordance with forms and rules and
175regulations adopted by the department, the following:
176     1.  If a determination of probable postfertilization age
177was made, the probable postfertilization age determined and the
178method and basis of the determination.
179     2.  If a determination of probable postfertilization age
180was not made, the basis of the determination that a medical
181emergency existed.
182     3.  If the probable postfertilization age was determined to
183be 20 or more weeks, the basis of the determination that the
184pregnant woman had a condition that so complicated her medical
185condition as to necessitate the abortion of her pregnancy to
186avert her death or to avert serious risk of substantial and
187irreversible physical impairment of a major bodily function, or
188the basis of the determination that it was necessary to preserve
189the life of an unborn child.
190     4.  The method used for the abortion and, in the case of an
191abortion performed when the probable postfertilization age was
192determined to be 20 or more weeks, whether the method of
193abortion used was one that, in reasonable medical judgment,
194provided the best opportunity for the unborn child to survive
195or, if such a method was not used, the basis of the
196determination that termination of the pregnancy in that manner
197would pose a greater risk either of the death of the pregnant
198woman or of the substantial and irreversible physical impairment
199of a major bodily function of the woman than would other
200available methods.
201     (d)  By June 30 of each year, the department shall issue a
202public report providing statistics for the previous calendar
203year compiled from all of the reports covering that year
204submitted in accordance with paragraph (c). Each such report
205shall also provide the statistics for all previous calendar
206years during which this subsection was in effect, adjusted to
207reflect any additional information from late or corrected
208reports. The department shall take care to ensure that none of
209the information included in the public reports could reasonably
210lead to the identification of any pregnant woman upon whom an
211abortion was performed.
212     (e)  Any physician who fails to submit a report under
213paragraph (c) by the end of 30 days after the due date shall be
214subject to a late fee of $500 for each additional 30-day period
215or portion of a 30-day period the report is overdue. Any
216physician required to report in accordance with this subsection
217who has not submitted a report, or has submitted only an
218incomplete report, more than 1 year after the due date, may be
219directed by a court of competent jurisdiction to submit a
220complete report within a time period stated by court order or be
221subject to civil contempt. Failure by any physician to conform
222to any requirement of this subsection constitutes grounds for
223disciplinary action under s. 458.331 or s. 459.015. Intentional
224or reckless falsification of any report required under paragraph
225(c) is a misdemeanor of the second degree, punishable as
226provided in s. 775.082 or s. 775.083.
227     (f)  Any person who intentionally or recklessly performs or
228attempts to perform an abortion in violation of paragraph (b)
229commits a felony of the third degree, punishable as provided in
230s. 775.082, s. 775.083, or s. 775.084. A penalty may not be
231assessed against the woman upon whom the abortion was performed
232or attempted to be performed.
233     (g)1.  Any woman upon whom an abortion was performed in
234violation of this subsection or the father of the unborn child
235who was the subject of such an abortion may maintain an action
236against the person who performed the abortion in an intentional
237or a reckless violation of this subsection for actual damages.
238Any woman upon whom an abortion was attempted in violation of
239this subsection may maintain an action against the person who
240attempted to perform the abortion in an intentional or a
241reckless violation of this subsection for actual damages.
242     2.  The woman upon whom an abortion was performed or
243attempted in violation of this subsection has a cause of action
244for injunctive relief against any person who has intentionally
245violated this subsection. Such a cause of action may also be
246maintained by a spouse, parent, sibling, guardian, or current or
247former licensed health care provider of such a woman or by the
248Attorney General or a county attorney with appropriate
249jurisdiction. An injunction granted under this subparagraph
250shall prevent the violator from performing or attempting more
251abortions in violation of this subsection in this state.
252     3.  If judgment is rendered in favor of the plaintiff in an
253action described in this section, the court shall also render
254judgment for reasonable attorney's fees in favor of the
255plaintiff against the defendant.
256     4.  If judgment is rendered in favor of the defendant and
257the court finds that the plaintiff's suit was frivolous and
258brought in bad faith, the court shall also render judgment for
259reasonable attorney's fees in favor of the defendant against the
260plaintiff.
261     5.  Neither damages nor attorney's fees may be assessed
262against the woman upon whom an abortion was performed or
263attempted except as provided in subparagraph 4.
264     (h)  In every civil or criminal proceeding or action
265brought under this subsection, the court shall rule whether the
266anonymity of any woman upon whom an abortion was performed or
267attempted shall be preserved from public disclosure if she does
268not give her consent to such disclosure. The court, upon motion
269or sua sponte, shall make such a ruling and, upon determining
270that her anonymity should be preserved, shall issue orders to
271the parties, witnesses, and counsel and direct the sealing of
272the record and exclusion of individuals from courtrooms or
273hearing rooms to the extent necessary to safeguard her identity
274from public disclosure. Each such order shall be accompanied by
275specific written findings explaining why the anonymity of the
276woman should be preserved from public disclosure, why the order
277is essential to that end, how the order is narrowly tailored to
278serve that interest, and why no reasonable less restrictive
279alternative exists. In the absence of written consent of the
280woman upon whom an abortion was performed or attempted, anyone,
281other than a public official, who brings an action under
282paragraph (g) shall do so under a pseudonym. This paragraph does
283not require the concealment of the identity of the plaintiff or
284of witnesses from the defendant or from attorneys for the
285defendant.
286     (11)(10)  PENALTIES FOR VIOLATION.-Except as provided in
287subsections (1), (4), (3) and (8)(7):
288     (a)  Any person who willfully performs, or actively
289participates in, a termination of pregnancy procedure in
290violation of the requirements of this section commits a felony
291of the third degree, punishable as provided in s. 775.082, s.
292775.083, or s. 775.084.
293     (b)  Any person who performs, or actively participates in,
294a termination of pregnancy procedure in violation of the
295provisions of this section which results in the death of the
296woman commits a felony of the second degree, punishable as
297provided in s. 775.082, s. 775.083, or s. 775.084.
298     (12)(11)  CIVIL ACTION PURSUANT TO PARTIAL-BIRTH ABORTION;
299RELIEF.-
300     (b)  In a civil action under this section, appropriate
301relief includes:
302     1.  Monetary damages for all injuries, psychological and
303physical, occasioned by the violation of subsection (6) (5).
304     2.  Damages equal to three times the cost of the partial-
305birth abortion.
306     Section 5.  Subsection (2) of section 765.113, Florida
307Statutes, is amended to read:
308     765.113  Restrictions on providing consent.-Unless the
309principal expressly delegates such authority to the surrogate in
310writing, or a surrogate or proxy has sought and received court
311approval pursuant to rule 5.900 of the Florida Probate Rules, a
312surrogate or proxy may not provide consent for:
313     (2)  Withholding or withdrawing life-prolonging procedures
314from a pregnant patient prior to viability as defined in s.
315390.0111(5)(4).
316     Section 6.  Notwithstanding any other provision of law,
317within 90 days after the effective date of this act the
318Department of Health shall adopt rules to assist in compliance
319with s. 390.0111(1)(c), (d), and (e), Florida Statutes, as
320created by this act.
321     Section 7.  This act shall take effect July 1, 2011.


CODING: Words stricken are deletions; words underlined are additions.