Florida Senate - 2019                                     SB 792
       
       
        
       By Senator Baxley
       
       
       
       
       
       12-01265-19                                            2019792__
    1                        A bill to be entitled                      
    2         An act relating to abortion; amending s. 390.011,
    3         F.S.; providing and revising definitions; amending s.
    4         390.0111, F.S.; requiring a physician to perform an
    5         examination for, and inform a woman obtaining an
    6         abortion of the presence of, a detectable fetal
    7         heartbeat; requiring the physician to review the
    8         results of such examination with the patient before
    9         the woman gives informed consent for the abortion
   10         procedure; requiring that a woman who declines to
   11         review the results certify in writing that she did so
   12         of her own free will and without undue influence;
   13         providing criminal penalties; amending s. 390.01112,
   14         F.S.; prohibiting the termination of a pregnancy when
   15         a fetal heartbeat is detected; providing exceptions;
   16         requiring a physician to perform certain examinations
   17         to detect a fetal heartbeat; requiring the physician
   18         to document such findings in the woman’s medical file;
   19         providing the standard of care for the termination of
   20         a pregnancy when a fetal heartbeat exists; amending s.
   21         390.012, F.S.; conforming terminology; providing an
   22         effective date.
   23  
   24         WHEREAS, as many as 30 percent of natural pregnancies end
   25  in spontaneous miscarriage, and
   26         WHEREAS, fewer than 5 percent of all natural pregnancies
   27  end in spontaneous miscarriage after the detection of fetal
   28  cardiac activity, and
   29         WHEREAS, more than 90 percent of in vitro pregnancies do
   30  not survive the first trimester when cardiac activity is not
   31  detected in the gestational sac, and
   32         WHEREAS, a fetal heartbeat, therefore, is a key medical
   33  predictor that an unborn human being will reach live birth, and
   34         WHEREAS, cardiac activity begins at a biologically
   35  identifiable moment in time, normally when the fetal heart is
   36  formed in the gestational sac, and
   37         WHEREAS, the State of Florida has a legitimate interest
   38  from the outset of a pregnancy in protecting the health of the
   39  woman and the life of the unborn human being who may be born,
   40  and
   41         WHEREAS, in order to make an informed choice about whether
   42  to continue her pregnancy, the pregnant woman has a legitimate
   43  interest in knowing the likelihood of the unborn human being
   44  surviving to full-term birth based upon the presence of cardiac
   45  activity, NOW, THEREFORE,
   46  
   47  Be It Enacted by the Legislature of the State of Florida:
   48  
   49         Section 1. Present subsections (6), (7), (8), (9), (10),
   50  (11), (12), and (13) of section 390.011, Florida Statutes, are
   51  renumbered as subsections (7), (9), (10), (11), (12), (13),
   52  (14), and (16), respectively, present subsections (1), (6), (8),
   53  (11), and (13) are amended, and new subsections (6), (8), and
   54  (15) are added to that section, to read:
   55         390.011 Definitions.—As used in this chapter, the term:
   56         (1) “Abortion” means the termination of human pregnancy
   57  with an intention other than to produce a live birth or to
   58  remove a dead unborn human being fetus.
   59         (6)“Fetal heartbeat” means cardiac activity or the steady
   60  and repetitive rhythmic contraction of the fetal heart within
   61  the gestational sac.
   62         (7)(6) “Gestation” means the development of a human embryo
   63  or an unborn human being fetus between fertilization and birth.
   64         (8)“Gestational sac” means the structure that comprises
   65  the extraembryonic membranes that envelop the unborn human being
   66  and that is typically visible by ultrasound after the fourth
   67  week of pregnancy.
   68         (10)(8) “Partial-birth abortion” means a termination of
   69  pregnancy in which the physician performing the termination of
   70  pregnancy partially vaginally delivers a living unborn human
   71  being fetus before killing the unborn human being fetus and
   72  completing the delivery.
   73         (13)(11) “Standard medical measure” means the medical care
   74  that a physician would provide based on the particular facts of
   75  the pregnancy, the information available to the physician, and
   76  the technology reasonably available in a hospital, as defined in
   77  s. 395.002, with an obstetrical department, to preserve the life
   78  and health of the unborn human being fetus, with or without
   79  temporary artificial life-sustaining support, if the unborn
   80  human being fetus were born at the same stage of gestational
   81  fetal development.
   82         (15)“Unborn human being” means an individual organism of
   83  the species Homo sapiens from fertilization until live birth.
   84         (16)(13) “Viable” or “viability” means the stage of fetal
   85  development when the life of an unborn human being a fetus is
   86  sustainable outside the womb through standard medical measures.
   87         Section 2. Paragraph (a) of subsection (3), subsections
   88  (4), (6), and (10), paragraph (a) of subsection (11), and
   89  paragraph (a) of subsection (15) of section 390.0111, Florida
   90  Statutes, are amended to read:
   91         390.0111 Termination of pregnancies.—
   92         (3) CONSENTS REQUIRED.—A termination of pregnancy may not
   93  be performed or induced except with the voluntary and informed
   94  written consent of the pregnant woman or, in the case of a
   95  mental incompetent, the voluntary and informed written consent
   96  of her court-appointed guardian.
   97         (a) Except in the case of a medical emergency, consent to a
   98  termination of pregnancy is voluntary and informed only if:
   99         1. The physician who is to perform the procedure, or the
  100  referring physician, has, at a minimum, orally, while physically
  101  present in the same room, and at least 24 hours before the
  102  procedure, informed the woman of:
  103         a. The nature and risks of undergoing or not undergoing the
  104  proposed procedure that a reasonable patient would consider
  105  material to making a knowing and willful decision of whether to
  106  terminate a pregnancy.
  107         b. The probable gestational age of the unborn human being
  108  fetus, verified by an ultrasound, at the time the termination of
  109  pregnancy is to be performed.
  110         (I) The ultrasound must be performed by the physician who
  111  is to perform the abortion or by a person having documented
  112  evidence that he or she has completed a course in the operation
  113  of ultrasound equipment as prescribed by rule and who is working
  114  in conjunction with the physician.
  115         (II) The person performing the ultrasound must offer the
  116  woman the opportunity to view the live ultrasound images and
  117  hear an explanation of them. If the woman accepts the
  118  opportunity to view the images and hear the explanation, a
  119  physician or a registered nurse, licensed practical nurse,
  120  advanced practice registered nurse, or physician assistant
  121  working in conjunction with the physician must contemporaneously
  122  review and explain the images to the woman before the woman
  123  gives informed consent to having an abortion procedure
  124  performed.
  125         (III) The woman has a right to decline to view and hear the
  126  explanation of the live ultrasound images after she is informed
  127  of her right and offered an opportunity to view the images and
  128  hear the explanation. If the woman declines, the woman shall
  129  complete a form acknowledging that she was offered an
  130  opportunity to view and hear the explanation of the images but
  131  that she declined that opportunity. The form must also indicate
  132  that the woman’s decision was not based on any undue influence
  133  from any person to discourage her from viewing the images or
  134  hearing the explanation and that she declined of her own free
  135  will.
  136         (IV) Unless requested by the woman, the person performing
  137  the ultrasound may not offer the opportunity to view the images
  138  and hear the explanation and the explanation may not be given
  139  if, at the time the woman schedules or arrives for her
  140  appointment to obtain an abortion, a copy of a restraining
  141  order, police report, medical record, or other court order or
  142  documentation is presented which provides evidence that the
  143  woman is obtaining the abortion because the woman is a victim of
  144  rape, incest, domestic violence, or human trafficking or that
  145  the woman has been diagnosed as having a condition that, on the
  146  basis of a physician’s good faith clinical judgment, would
  147  create a serious risk of substantial and irreversible impairment
  148  of a major bodily function if the woman delayed terminating her
  149  pregnancy.
  150         c.Whether the unborn human being has a detectable fetal
  151  heartbeat. The physician who performs the examination for the
  152  presence of a fetal heartbeat must offer the woman the
  153  opportunity to view or hear the fetal heartbeat and present the
  154  statistical data regarding the probability of survival. If the
  155  woman declines, the woman shall complete a form acknowledging
  156  that she was offered an opportunity to view and hear the fetal
  157  heartbeat but that she declined that opportunity. The form must
  158  also indicate that the woman’s decision was not based on any
  159  undue influence from any person to discourage her from viewing
  160  or hearing the fetal heartbeat and that she declined of her own
  161  free will.
  162         d.c. The medical risks to the woman and the unborn human
  163  being fetus of carrying the pregnancy to term.
  164  
  165  The physician may provide the information required in this
  166  subparagraph within 24 hours before the procedure if requested
  167  by the woman at the time she schedules or arrives for her
  168  appointment to obtain an abortion and if she presents to the
  169  physician a copy of a restraining order, police report, medical
  170  record, or other court order or documentation evidencing that
  171  she is obtaining the abortion because she is a victim of rape,
  172  incest, domestic violence, or human trafficking.
  173         2. Printed materials prepared and provided by the
  174  department have been provided to the pregnant woman, if she
  175  chooses to view these materials, including:
  176         a. A description of the unborn human being fetus, including
  177  a description of the various stages of development.
  178         b. A list of entities that offer alternatives to
  179  terminating the pregnancy.
  180         c. Detailed information on the availability of medical
  181  assistance benefits for prenatal care, childbirth, and neonatal
  182  care.
  183         3. The woman acknowledges in writing, before the
  184  termination of pregnancy, that the information required to be
  185  provided under this subsection has been provided.
  186  
  187  Nothing in this paragraph is intended to prohibit a physician
  188  from providing any additional information which the physician
  189  deems material to the woman’s informed decision to terminate her
  190  pregnancy.
  191         (4) STANDARD OF MEDICAL CARE TO BE USED IN THIRD
  192  TRIMESTER.—If a termination of pregnancy is performed in the
  193  third trimester, the physician performing the termination of
  194  pregnancy must exercise the same degree of professional skill,
  195  care, and diligence to preserve the life and health of the
  196  unborn human being fetus which the physician would be required
  197  to exercise in order to preserve the life and health of an
  198  unborn human being a fetus intended to be born and not aborted.
  199  However, if preserving the life and health of the unborn human
  200  being fetus conflicts with preserving the life and health of the
  201  pregnant woman, the physician must consider preserving the
  202  woman’s life and health the overriding and superior concern.
  203         (6) EXPERIMENTATION ON UNBORN HUMAN BEING FETUS PROHIBITED;
  204  EXCEPTION.—No person shall use any live unborn human being fetus
  205  or live, premature infant for any type of scientific, research,
  206  laboratory, or other kind of experimentation either prior to or
  207  subsequent to any termination of pregnancy procedure except as
  208  necessary to protect or preserve the life and health of such
  209  unborn human being fetus or premature infant.
  210         (10) PENALTIES FOR VIOLATION.—Except as provided in
  211  subsections (3), (7), and (12):
  212         (a) Any person who willfully performs, or actively
  213  participates in, a termination of pregnancy in violation of the
  214  requirements of this section or s. 390.01112 commits a felony of
  215  the third degree, punishable as provided in s. 775.082, s.
  216  775.083, or s. 775.084.
  217         (b)Any person who knowingly or purposefully performs or
  218  induces an abortion on a pregnant woman with the specific intent
  219  of causing or abetting the termination of the life of the unborn
  220  human being whose fetal heartbeat has been detected pursuant to
  221  sub-subparagraph (3)(a)1.c. commits a felony of the third
  222  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  223  775.084.
  224         (c)(b) Any person who performs, or actively participates
  225  in, a termination of pregnancy in violation of this section or
  226  s. 390.01112 which results in the death of the woman commits a
  227  felony of the second degree, punishable as provided in s.
  228  775.082, s. 775.083, or s. 775.084.
  229         (11) CIVIL ACTION PURSUANT TO PARTIAL-BIRTH ABORTION;
  230  RELIEF.—
  231         (a) The father, if married to the mother at the time she
  232  receives a partial-birth abortion, and, if the mother has not
  233  attained the age of 18 years at the time she receives a partial
  234  birth abortion, the maternal grandparents of the unborn human
  235  being fetus may, in a civil action, obtain appropriate relief,
  236  unless the pregnancy resulted from the plaintiff’s criminal
  237  conduct or the plaintiff consented to the abortion.
  238         (15) USE OF PUBLIC FUNDS RESTRICTED.—A state agency, a
  239  local governmental entity, or a managed care plan providing
  240  services under part IV of chapter 409 may not expend funds for
  241  the benefit of, pay funds to, or initiate or renew a contract
  242  with an organization that owns, operates, or is affiliated with
  243  one or more clinics that are licensed under this chapter and
  244  perform abortions unless one or more of the following applies:
  245         (a) All abortions performed by such clinics are:
  246         1. On unborn human beings fetuses that are conceived
  247  through rape or incest; or
  248         2. Are medically necessary to preserve the life of the
  249  pregnant woman or to avert a serious risk of substantial and
  250  irreversible physical impairment of a major bodily function of
  251  the pregnant woman, other than a psychological condition.
  252         Section 3. Section 390.01112, Florida Statutes, is amended
  253  to read:
  254         390.01112 Termination of pregnancies during viability or
  255  after fetal heartbeat is detected.—
  256         (1) No termination of pregnancy shall be performed on any
  257  woman human being if the physician determines that, in
  258  reasonable medical judgment, the unborn human being fetus has
  259  achieved viability or has a detectable fetal heartbeat, unless:
  260         (a) Two physicians certify in writing that, in reasonable
  261  medical judgment, the termination of the pregnancy is necessary
  262  to save the pregnant woman’s life or avert a serious risk of
  263  substantial and irreversible physical impairment of a major
  264  bodily function of the pregnant woman other than a psychological
  265  condition; or
  266         (b) The physician certifies in writing that, in reasonable
  267  medical judgment, there is a medical necessity for legitimate
  268  emergency medical procedures for termination of the pregnancy to
  269  save the pregnant woman’s life or avert a serious risk of
  270  imminent substantial and irreversible physical impairment of a
  271  major bodily function of the pregnant woman other than a
  272  psychological condition, and another physician is not available
  273  for consultation.
  274         (2) Before performing a termination of pregnancy, a
  275  physician must determine whether if the unborn human being:
  276         (a)fetus Is viable by, at a minimum, performing a medical
  277  examination of the pregnant woman and, to the maximum extent
  278  possible through reasonably available tests and the ultrasound
  279  required under s. 390.0111(3), an examination of the unborn
  280  human being fetus.
  281         (b)Has a detectable fetal heartbeat.
  282  
  283  The physician must document in the pregnant woman’s medical file
  284  the physician’s determination and the method, equipment, fetal
  285  measurements, and any other information used to determine the
  286  viability of the unborn human being and whether the unborn human
  287  being has a detectable fetal heartbeat fetus.
  288         (3) If a termination of pregnancy is performed during
  289  viability or after a fetal heartbeat has been detected, the
  290  physician performing the termination of pregnancy must exercise
  291  the same degree of professional skill, care, and diligence to
  292  preserve the life and health of the unborn human being fetus
  293  that the physician would be required to exercise in order to
  294  preserve the life and health of an unborn human being a fetus
  295  intended to be born and not aborted. However, if preserving the
  296  life and health of the unborn human being fetus conflicts with
  297  preserving the life and health of the woman, the physician must
  298  consider preserving the woman’s life and health the overriding
  299  and superior concern.
  300         Section 4. Paragraphs (d), (e), (f), and (h) of subsection
  301  (3) and subsections (6) and (7) of section 390.012, Florida
  302  Statutes, are amended to read:
  303         390.012 Powers of agency; rules; disposal of fetal
  304  remains.—
  305         (3) For clinics that perform or claim to perform abortions
  306  after the first trimester of pregnancy, the agency shall adopt
  307  rules pursuant to ss. 120.536(1) and 120.54 to implement the
  308  provisions of this chapter, including the following:
  309         (d) Rules relating to the medical screening and evaluation
  310  of each abortion clinic patient. At a minimum, these rules shall
  311  require:
  312         1. A medical history including reported allergies to
  313  medications, antiseptic solutions, or latex; past surgeries; and
  314  an obstetric and gynecological history.
  315         2. A physical examination, including a bimanual examination
  316  estimating uterine size and palpation of the adnexa.
  317         3. The appropriate laboratory tests, including:
  318         a. Urine or blood tests for pregnancy performed before the
  319  abortion procedure.
  320         b. A test for anemia.
  321         c. Rh typing, unless reliable written documentation of
  322  blood type is available.
  323         d. Other tests as indicated from the physical examination.
  324         4. An ultrasound evaluation for all patients. The rules
  325  shall require that if a person who is not a physician performs
  326  an ultrasound examination, that person shall have documented
  327  evidence that he or she has completed a course in the operation
  328  of ultrasound equipment as prescribed in rule. The rules shall
  329  require clinics to be in compliance with s. 390.0111.
  330         5. That the physician is responsible for estimating the
  331  gestational age of the unborn human being fetus based on the
  332  ultrasound examination and obstetric standards in keeping with
  333  established standards of care regarding the estimation of the
  334  gestational fetal age of the unborn human being as defined in
  335  rule and shall write the estimate in the patient’s medical
  336  history. The physician shall keep original prints of each
  337  ultrasound examination of a patient in the patient’s medical
  338  history file.
  339         (e) Rules relating to the abortion procedure. At a minimum,
  340  these rules shall require:
  341         1. That a physician, registered nurse, licensed practical
  342  nurse, advanced practice registered nurse, or physician
  343  assistant is available to all patients throughout the abortion
  344  procedure.
  345         2. Standards for the safe conduct of abortion procedures
  346  that conform to obstetric standards in keeping with established
  347  standards of care regarding the estimation of the gestational
  348  fetal age of the unborn human being as defined in rule.
  349         3. Appropriate use of general and local anesthesia,
  350  analgesia, and sedation if ordered by the physician.
  351         4. Appropriate precautions, such as the establishment of
  352  intravenous access at least for patients undergoing post-first
  353  trimester abortions.
  354         5. Appropriate monitoring of the vital signs and other
  355  defined signs and markers of the patient’s status throughout the
  356  abortion procedure and during the recovery period until the
  357  patient’s condition is deemed to be stable in the recovery room.
  358         (f) Rules that prescribe minimum recovery room standards.
  359  At a minimum, these rules must require that:
  360         1. Postprocedure recovery rooms be supervised and staffed
  361  to meet the patients’ needs.
  362         2. Immediate postprocedure care consist of observation in a
  363  supervised recovery room for as long as the patient’s condition
  364  warrants.
  365         3. A registered nurse, licensed practical nurse, advanced
  366  practice registered nurse, or physician assistant who is trained
  367  in the management of the recovery area and is capable of
  368  providing basic cardiopulmonary resuscitation and related
  369  emergency procedures remain on the premises of the abortion
  370  clinic until all patients are discharged.
  371         4. A physician sign the discharge order and be readily
  372  accessible and available until the last patient is discharged to
  373  facilitate the transfer of emergency cases if hospitalization of
  374  the patient or the unborn human being viable fetus is necessary.
  375         5. A physician discuss Rho(D) immune globulin with each
  376  patient for whom it is indicated and ensure that it is offered
  377  to the patient in the immediate postoperative period or will be
  378  available to her within 72 hours after completion of the
  379  abortion procedure. If the patient refuses the Rho(D) immune
  380  globulin, she and a witness must sign a refusal form approved by
  381  the agency which must be included in the medical record.
  382         6. Written instructions with regard to postabortion coitus,
  383  signs of possible problems, and general aftercare which are
  384  specific to the patient be given to each patient. The
  385  instructions must include information regarding access to
  386  medical care for complications, including a telephone number for
  387  use in the event of a medical emergency.
  388         7. A minimum length of time be specified, by type of
  389  abortion procedure and duration of gestation, during which a
  390  patient must remain in the recovery room.
  391         8. The physician ensure that, with the patient’s consent, a
  392  registered nurse, licensed practical nurse, advanced practice
  393  registered nurse, or physician assistant from the abortion
  394  clinic makes a good faith effort to contact the patient by
  395  telephone within 24 hours after surgery to assess the patient’s
  396  recovery.
  397         9. Equipment and services be readily accessible to provide
  398  appropriate emergency resuscitative and life support procedures
  399  pending the transfer of the patient or the unborn human being
  400  viable fetus to the hospital.
  401         (h) Rules to prescribe minimum abortion clinic incident
  402  reporting. At a minimum, these rules shall require that:
  403         1. The abortion clinic records each incident that results
  404  in serious injury to a patient or an unborn human being a viable
  405  fetus at an abortion clinic and shall report an incident in
  406  writing to the agency within 10 days after the incident occurs.
  407  For the purposes of this paragraph, “serious injury” means an
  408  injury that occurs at an abortion clinic and that creates a
  409  serious risk of substantial impairment of a major bodily organ.
  410         2. If a patient’s death occurs, other than the a fetal
  411  death of an unborn human being properly reported pursuant to
  412  law, the abortion clinic reports it to the department not later
  413  than the next department workday.
  414         (6) The agency may adopt and enforce rules, in the interest
  415  of protecting the public health, to ensure the prompt and proper
  416  disposal of fetal remains and tissue resulting from pregnancy
  417  termination.
  418         (7) If an owner, operator, or employee of an abortion
  419  clinic fails to dispose of fetal remains and tissue in a
  420  sanitary manner pursuant to s. 381.0098, rules adopted
  421  thereunder, and rules adopted by the agency pursuant to this
  422  section, the license of such clinic may be suspended or revoked,
  423  and such person commits a misdemeanor of the first degree,
  424  punishable as provided in s. 775.082 or s. 775.083.
  425         Section 5. This act shall take effect July 1, 2019.