Florida Senate - 2011 SB 1948 By Senator Storms 10-00408-11 20111948__ 1 A bill to be entitled 2 An act relating to abortions; creating s. 390.25, 3 F.S.; creating the “Pain-capable Unborn Child 4 Protection Act”; providing legislative findings; 5 providing definitions; requiring a physician to 6 determine the probable postfertilization age of an 7 unborn child before performing or inducing an abortion 8 or attempting to perform or induce an abortion; 9 requiring the physician to inquire and conduct 10 necessary medical examinations to determine the 11 probable postfertilization age of an unborn child; 12 providing that a physician is subject to disciplinary 13 action for failing to determine the probable 14 postfertilization age of an unborn child before 15 performing or inducing an abortion or attempting to 16 perform or induce an abortion; providing exceptions; 17 requiring a physician who performs or induces or 18 attempts to perform or induce an abortion to report to 19 the Department of Health certain information; 20 requiring the department to issue a public report 21 providing certain statistics; providing penalties and 22 disciplinary action; authorizing certain persons to 23 maintain a cause of action for actual damages against 24 a person who performed an abortion under certain 25 conditions; providing a cause of action for injunctive 26 relief against a person who intentionally violates the 27 act; providing that the injunction prevent the 28 abortion provider from performing further abortions in 29 violation of the act; providing for attorney’s fees; 30 prohibiting damages and attorney’s fees from being 31 assessed against the woman upon whom an abortion was 32 performed or attempted to be performed; providing an 33 exception; requiring the department to adopt rules to 34 administer the act; creating s. 92.551, F.S.; 35 requiring that the confidential and exempt status of 36 the identifying information regarding a woman upon 37 whom an abortion was performed or attempted be 38 maintained in court proceedings under certain 39 conditions; authorizing the defendant to apply to the 40 trial court for an order of disclosure of the 41 confidential and exempt information for the purpose of 42 preparing a defense; prohibiting the defendant from 43 disclosing the woman’s identity to persons other than 44 the defense attorney; providing a penalty for 45 disclosing such confidential and exempt information; 46 requiring the use of a pseudonym instead of the 47 woman’s name in court records and proceedings; 48 providing for a waiver of the confidential and exempt 49 status of the identifying information; authorizing the 50 publication or broadcast of the substance of the trial 51 testimony in a civil proceeding or prosecution for an 52 offense described in the act under certain conditions; 53 providing a penalty; amending ss. 458.331 and 459.015, 54 F.S.; revising the grounds for disciplinary action 55 against a physician or an osteopathic physician; 56 providing for severability; providing an effective 57 date. 58 59 Be It Enacted by the Legislature of the State of Florida: 60 61 Section 1. Section 390.25, Florida Statutes, is created to 62 read: 63 390.25 Pain-capable unborn child protection.— 64 (1) SHORT TITLE.—This section may be cited as the “Pain 65 capable Unborn Child Protection Act.” 66 (2) LEGISLATIVE FINDINGS.—The Legislature finds that: 67 (a) At least by 20 weeks after fertilization there is 68 substantial evidence that an unborn child has the physical 69 structures necessary to experience pain; 70 (b) There is substantial evidence that, by 20 weeks after 71 fertilization, an unborn child seeks to evade certain stimuli in 72 a manner that, in an infant or an adult, would be interpreted as 73 a response to pain; 74 (c) Anesthesia is routinely administered to unborn children 75 who have developed 20 weeks or more past fertilization who 76 undergo prenatal surgery; 77 (d) Even before 20 weeks after fertilization, unborn 78 children have been observed to exhibit hormonal stress responses 79 to painful stimuli. Such responses were reduced when pain 80 medication was administered directly to such unborn children; 81 and 82 (e) It is the intent of the Legislature to assert a 83 compelling state interest in protecting the lives of unborn 84 children during the stage at which substantial medical evidence 85 indicates that they are capable of feeling pain. 86 (3) DEFINITIONS.—As used in this section, the term: 87 (a) “Abortion” means the use or prescription of any 88 instrument, medicine, drug, or other substance or device to 89 terminate the pregnancy of a woman known to be pregnant with an 90 intention other than to increase the probability of a live 91 birth, to preserve the life or health of the child after live 92 birth, or to remove a dead unborn child who dies as the result 93 of natural causes in utero, accidental trauma, or a criminal 94 assault on the pregnant woman or her unborn child, and which 95 causes the premature termination of the pregnancy. 96 (b) “Attempt to perform or induce an abortion” means an 97 act, or an omission of a statutorily required act, that, under 98 the circumstances as the actor believes them to be, constitutes 99 a substantial step in a course of conduct planned to culminate 100 in the performance or induction of an abortion. 101 (c) “Department” means the Department of Health. 102 (d) “Fertilization” means the fusion of a human 103 spermatozoon with a human ovum. 104 (e) “Medical emergency” means a condition that, in 105 reasonable medical judgment, so complicates the medical 106 condition of a pregnant woman as to necessitate the immediate 107 abortion of her pregnancy in order to avert her death or for 108 which a delay will create a serious risk of substantial and 109 irreversible physical impairment of a major bodily function. A 110 condition is a medical emergency if it is based on a claim or 111 diagnosis that the woman will engage in conduct that would 112 result in her death or in substantial and irreversible physical 113 impairment of a major bodily function. 114 (f) “Postfertilization age” means the age of the unborn 115 child as calculated from the fertilization of the human ovum. 116 (g) “Reasonable medical judgment” means a medical judgment 117 that would be made by a reasonably prudent physician who is 118 knowledgeable about the case and the treatment possibilities 119 with respect to the medical conditions involved. 120 (h) “Physician” means any person licensed to practice 121 medicine under chapter 458 or osteopathic medicine under chapter 122 459. 123 (i) “Probable postfertilization age of the unborn child” 124 means the reasonably probable postfertilization age of the 125 unborn child at the time the abortion is planned to be performed 126 based upon a physician’s reasonable medical judgment. 127 (j) “Unborn child” means an individual organism of the 128 species Homo sapiens from fertilization until live birth. 129 (k) “Woman” means a female human being whether or not she 130 has reached the age of majority. 131 (4) PROHIBITION.— 132 (a) Except in the case of a medical emergency that prevents 133 compliance with this section, an abortion may not be performed 134 or induced or be attempted to be performed or induced unless the 135 physician performing or inducing it has first determined the 136 probable postfertilization age of the unborn child or relied 137 upon such a determination made by another physician. In making 138 such a determination, a physician shall make such inquiries of 139 the woman and perform or cause to be performed such medical 140 examinations and tests as a reasonably prudent physician, 141 knowledgeable about the case and the medical conditions 142 involved, would consider necessary to perform in making an 143 accurate diagnosis with respect to postfertilization age. 144 (b) A physician who fails to conform to the requirements of 145 this subsection is subject to disciplinary action under s. 146 458.331 or s. 459.015. 147 (5) EXCEPTIONS.—A person may not perform or induce or 148 attempt to perform or induce an abortion upon a woman when it 149 has been determined, by the physician performing or inducing the 150 abortion or by another physician upon whose determination that 151 physician relies, that the probable postfertilization age of the 152 woman’s unborn child is 20 or more weeks unless, in reasonable 153 medical judgment: 154 (a) It is necessary to preserve the life of the unborn 155 child. 156 (b) The pregnant woman has a condition that so complicates 157 her medical condition as to necessitate the abortion of her 158 pregnancy to avert her death or to avert serious risk of 159 substantial and irreversible physical impairment of a major 160 bodily function. 161 162 Such condition does not exist if it is based on a claim or 163 diagnosis that the woman will engage in conduct that will result 164 in her death or in substantial and irreversible physical 165 impairment of a major bodily function. In such a case, the 166 physician shall terminate the pregnancy in the manner that, in 167 his or her reasonable medical judgment, provides the best 168 opportunity for the unborn child to survive, unless, in the 169 physician’s reasonable medical judgment, termination of the 170 pregnancy in that manner would pose a greater risk of the death 171 of the pregnant woman or of the substantial and irreversible 172 physical impairment of a major bodily function of the woman than 173 would another available method. A greater risk does not exist if 174 it is based on a claim or diagnosis that the woman will engage 175 in conduct that would result in her death or in substantial and 176 irreversible physical impairment of a major bodily function. 177 (6) PHYSICIAN’S REPORTING REQUIREMENTS.—A physician who 178 performs or induces or attempts to perform or induce an abortion 179 shall report to the department within 30 days after the abortion 180 is performed or induced or attempted to be performed or induced 181 in accordance with rules adopted by the department: 182 (a) If a determination of probable postfertilization age 183 was made, the probable postfertilization age determined and the 184 method and basis of the determination. 185 (b) If a determination of probable postfertilization age 186 was not made, the basis of the determination that a medical 187 emergency existed. 188 (c) If the probable postfertilization age was determined to 189 be 20 or more weeks, the basis of the determination that the 190 pregnant woman had a condition that so complicated her medical 191 condition as to necessitate the abortion of her pregnancy to 192 avert her death or to avert serious risk of substantial and 193 irreversible physical impairment of a major bodily function, or 194 the basis of the determination that it was necessary to preserve 195 the life of the unborn child. 196 (d) The method used for the abortion and, in the case of an 197 abortion performed when the probable postfertilization age was 198 determined to be 20 or more weeks, whether the method of 199 abortion used was one that, in the physician’s reasonable 200 medical judgment, provided the best opportunity for the unborn 201 child to survive or, if such a method was not used, the basis of 202 the determination that termination of the pregnancy in that 203 manner would pose a greater risk of the death of the pregnant 204 woman or the substantial and irreversible physical impairment of 205 a major bodily function of the woman than would other available 206 methods. 207 (7) REPORT.—By June 30 of each year, the department shall 208 issue a public report providing statistics for the previous 209 fiscal year compiled from all of the reports covering that year 210 and submitted in accordance with this section for each of the 211 items listed in subsection (6). Each report shall also provide 212 the statistics for all previous years during which this section 213 was in effect, adjusted to reflect any additional information 214 from late or corrected reports. 215 (8) PENALTIES.— 216 (a) A physician who fails to submit a report within 30 days 217 after performing or inducing or attempting to perform or induce 218 an abortion must remit a late fee of $500 to the department, and 219 $500 for each additional 30-day period or portion of a 30-day 220 period that the report is overdue. A physician who is required 221 to report in accordance with this section and who has not 222 submitted a report, or who has submitted an incomplete report 223 more than 1 year after performing or inducing or attempting to 224 perform or induce an abortion, may be directed by a court of 225 competent jurisdiction to submit a complete report within a time 226 period ordered by the court or be subject to civil contempt. A 227 physician who fails to conform to the requirements in this 228 subsection, other than late filing of a report, is subject to 229 disciplinary action under s. 458.331 or s. 459.015. A physician 230 who fails to submit a complete report in accordance with a court 231 order is subject to disciplinary action under s. 458.331 or s. 232 459.015. 233 (b) Intentional or reckless falsification of any report 234 required under subsection (6) is a noncriminal violation, 235 punishable by a fine only as provided in s. 775.082 or s. 236 775.083. 237 (c) Any person who intentionally or recklessly performs or 238 attempts to perform an abortion in violation of subsection (5) 239 commits a felony of the third degree, punishable as provided in 240 s. 775.082, s. 775.083, or s. 775.084. A penalty may not be 241 assessed against a woman upon whom the abortion is performed or 242 attempted to be performed. 243 (9) DAMAGES.— 244 (a) A woman upon whom an abortion has been performed in 245 violation of this section or the father of the unborn child who 246 was the subject of such an abortion may maintain an action for 247 actual damages against the person who performed the abortion in 248 an intentional or a reckless violation of this section. 249 (b) A woman upon whom an abortion has been attempted in 250 violation of this section may maintain an action for actual 251 damages against the person who attempted to perform the abortion 252 in an intentional or a reckless violation of this section. 253 (c) A cause of action for injunctive relief against a 254 person who has intentionally violated this section may be 255 maintained by: 256 1. The woman upon whom an abortion was performed or 257 attempted to be performed in violation of this section. 258 2. A person who is the spouse, parent, sibling, or guardian 259 of, or a current or former licensed health care provider of, the 260 woman upon whom an abortion has been performed or attempted to 261 be performed in violation of this section. 262 3. A state attorney who has appropriate jurisdiction. 263 4. The Attorney General. 264 265 The injunction shall prevent the abortion provider from 266 performing further abortions in violation of this section. 267 (10) ATTORNEY’S FEES.— 268 (a) If judgment is rendered in favor of the plaintiff in an 269 action described in this section, the court shall also render 270 judgment for reasonable attorney’s fees in favor of the 271 plaintiff against the defendant. 272 (b) If judgment is rendered in favor of the defendant and 273 the court finds that the plaintiff’s suit was frivolous and 274 brought in bad faith, the court shall also render judgment for 275 reasonable attorney’s fees in favor of the defendant against the 276 plaintiff. 277 (c) Damages or attorney’s fees may not be assessed against 278 the woman upon whom an abortion was performed or attempted to be 279 performed except as provided in paragraph (b). 280 (11) RULES.—The department shall adopt rules to administer 281 this section by October 1, 2011. 282 Section 2. Section 92.551, Florida Statutes, is created to 283 read: 284 92.551 Judicial proceedings and court records involving a 285 woman upon whom an abortion was performed or attempted.— 286 (1)(a) The confidential and exempt status of information 287 contained in a report created under s. 390.25(7), criminal 288 intelligence information, criminal investigative information, or 289 information in a civil proceeding or action made confidential 290 and exempt pursuant to s. 119.071(2)(k) must be maintained in 291 court records pursuant to s. 119.0714(1)(h) and in court 292 proceedings, including testimony from witnesses and exclusion of 293 certain persons from the criminal or civil proceedings. As used 294 in this section, the term “woman” means the woman upon whom an 295 abortion was performed or attempted under s. 390.25. 296 (b) If a petition for access to such confidential and 297 exempt records is filed with the trial court having jurisdiction 298 over the alleged offense involving the woman upon whom an 299 abortion was performed or attempted under s. 390.25, the 300 confidential and exempt status of such information shall be 301 maintained by the court if the state, the plaintiff, or the 302 woman demonstrates that: 303 1. The identity of the woman is not already known in the 304 community; 305 2. The woman has not voluntarily called public attention to 306 the offense; 307 3. The identity of the woman has not otherwise become a 308 reasonable subject of public concern; 309 4. The disclosure of the woman’s identity would be 310 offensive to a reasonable person; and 311 5. The disclosure of the woman’s identity would: 312 a. Endanger the woman because of the likelihood of 313 retaliation, harassment, or intimidation; 314 b. Cause severe emotional or mental harm to the woman; 315 c. Make the woman unwilling to testify as a witness; or 316 d. Be inappropriate for other good cause shown. 317 (2) A defendant charged with a crime described in s. 318 390.25, may apply to the trial court for an order of disclosure 319 of information in court records held confidential and exempt 320 pursuant to s. 119.0714(1)(h) or maintained as confidential and 321 exempt pursuant to court order under this section. Such 322 identifying information concerning the woman upon whom an 323 abortion was performed or attempted under s. 390.25 may be 324 released to the defendant or his or her attorney in order to 325 prepare the defense. The confidential and exempt status of this 326 information does not prevent the disclosure of the woman’s 327 identity to the defendant; however, the defendant may not 328 disclose the woman’s identity to any person other than the 329 defendant’s attorney or any other person directly involved in 330 the preparation of the defense. A willful and knowing disclosure 331 of the identity of the woman to any other person by the 332 defendant constitutes contempt. 333 (3) The state attorney or a person who brings an action 334 under s. 390.25(9) must use a pseudonym instead of the woman’s 335 name to designate the woman in all court records and records of 336 court proceedings, both civil and criminal. 337 (4) The protection of this section may be waived by the 338 woman of the alleged offense under s. 390.25 in a writing filed 339 with the court, in which the woman consents to the use or 340 release of identifying information during court proceedings and 341 in the records of court proceedings. 342 (5) This section does not prohibit the publication or 343 broadcast of the substance of trial testimony in a civil 344 proceeding or action or a prosecution for an offense described 345 in s. 390.25, but the publication or broadcast may not include 346 an identifying photograph, an identifiable voice, or the name or 347 address of the woman, unless the woman has consented in writing 348 to the publication and filed such consent with the court or 349 unless the court has declared such records not confidential and 350 exempt as provided for in subsection (1). 351 (6) A willful and knowing violation of this section or a 352 willful and knowing failure to obey any court order issued under 353 this section constitutes contempt. 354 Section 3. Paragraphs (rr), (ss), and (tt) are added to 355 subsection (1) of section 458.331, Florida Statutes, to read: 356 458.331 Grounds for disciplinary action; action by the 357 board and department.— 358 (1) The following acts constitute grounds for denial of a 359 license or disciplinary action, as specified in s. 456.072(2): 360 (rr) Performing or inducing or attempting to perform or 361 induce an abortion in violation of the Pain-capable Unborn Child 362 Protection Act. 363 (ss) Failing to submit a report to the Department of Health 364 within 30 days after performing or inducing or attempting to 365 perform or induce an abortion in accordance with the Pain 366 capable Unborn Child Protection Act. 367 (tt) Failing to submit a complete report to the Department 368 of Health in accordance with a court order after performing or 369 inducing or attempting to perform or induce an abortion. 370 Section 4. Paragraphs (tt), (uu), and (vv) are added to 371 subsection (1) of section 459.015, Florida Statutes, to read: 372 459.015 Grounds for disciplinary action; action by the 373 board and department.— 374 (1) The following acts constitute grounds for denial of a 375 license or disciplinary action, as specified in s. 456.072(2): 376 (tt) Performing or inducing or attempting to perform or 377 induce an abortion in violation of the Pain-capable Unborn Child 378 Protection Act. 379 (uu) Failing to submit a report to the Department of Health 380 within 30 days after performing or inducing or attempting to 381 perform or induce an abortion in accordance with the Pain 382 capable Unborn Child Protection Act. 383 (vv) Failing to submit a complete report to the Department 384 of Health in accordance with a court order after performing or 385 inducing or attempting to perform or induce an abortion. 386 Section 5. If any provision of this act or its application 387 to any person or circumstance is held invalid, the invalidity 388 does not affect other provisions or applications of the act 389 which can be given effect without the invalid provision or 390 application, and to this end the provisions of this act are 391 severable. 392 Section 6. This act shall take effect July 1, 2011.