HB 839

1
A bill to be entitled
2An act relating to abortion; providing a short title;
3providing legislative findings; amending s. 390.011,
4F.S.; providing definitions; amending s. 390.0111,
5F.S.; requiring a physician performing or inducing an
6abortion to first make a determination of the probable
7postfertilization age of the unborn child; providing
8an exception; providing for disciplinary action
9against noncompliant physicians; prohibiting an
10abortion if the probable postfertilization age of the
11woman's unborn child is 20 or more weeks; providing an
12exception; providing recordkeeping and reporting
13requirements for physicians; providing for rulemaking;
14requiring an annual report by the Department of
15Health; providing financial penalties for late
16reports; providing for civil actions to require
17reporting; providing for disciplinary action against
18noncompliant physicians; providing criminal penalties
19for intentional or reckless falsification of a report;
20providing criminal penalties for any person who
21intentionally or recklessly performs or attempts to
22perform an abortion in violation of specified
23provisions; providing that a penalty may not be
24assessed against a woman involved in such an abortion
25or attempt; providing for civil actions by certain
26persons for intentional or reckless violations;
27providing for actions for injunctive relief by certain
28persons for intentional violations; providing for
29award of attorney fees in certain circumstances;
30requiring that in every civil or criminal proceeding
31or action brought under the court rule on whether the
32anonymity of any woman upon whom an abortion was
33performed or attempted shall be preserved from public
34disclosure if she does not give her consent to such
35disclosure; requiring specified findings if a court
36determines that the anonymity of the woman should be
37preserved from public disclosure; conforming cross-
38references; amending s. 765.113, F.S.; conforming a
39cross-reference; requiring rulemaking by the
40Department of Health by a specified date; providing an
41effective date.
42
43Be It Enacted by the Legislature of the State of Florida:
44
45     Section 1.  This act may be cited as the "Pain-Capable
46Unborn Child Protection Act."
47     Section 2.  The Legislature finds that:
48     (1)  By 20 weeks after fertilization there is substantial
49evidence that an unborn child has the physical structures
50necessary to experience pain.
51     (2)  There is substantial evidence that, by 20 weeks after
52fertilization, unborn children seek to evade certain stimuli in
53a manner that in an infant or an adult would be interpreted as a
54response to pain.
55     (3)  Anesthesia is routinely administered to unborn
56children who have developed 20 weeks or more past fertilization
57who undergo prenatal surgery.
58     (4)  Even before 20 weeks after fertilization, unborn
59children have been observed to exhibit hormonal stress responses
60to painful stimuli. Such responses were reduced when pain
61medication was administered directly to such unborn children.
62     (5)  This state has a compelling state interest in
63protecting the lives of unborn children from the stage at which
64substantial medical evidence indicates that they are capable of
65feeling pain.
66     Section 3.  Section 390.011, Florida Statutes, is amended
67to read:
68     390.011  Definitions.-As used in this chapter, the term:
69     (1)  "Abortion" means the termination of human pregnancy
70with an intention other than to produce a live birth or to
71remove a dead fetus.
72     (2)  "Abortion clinic" or "clinic" means any facility in
73which abortions are performed. The term does not include:
74     (a)  A hospital; or
75     (b)  A physician's office, provided that the office is not
76used primarily for the performance of abortions.
77     (3)  "Agency" means the Agency for Health Care
78Administration.
79     (4)  "Attempt to perform or induce an abortion" means an
80act, or an omission of a statutorily required act, that, under
81the circumstances as the person believes them to be, constitutes
82a substantial step in a course of conduct planned to culminate
83in the performance or induction of an abortion.
84     (5)(4)  "Department" means the Department of Health.
85     (6)  "Fertilization" means the fusion of a human
86spermatozoon with a human ovum.
87     (7)(5)  "Hospital" means a facility as defined in s.
88395.002(12) and licensed under chapter 395 and part II of
89chapter 408.
90     (8)  "Medical emergency" means a condition that, in
91reasonable medical judgment, so complicates the medical
92condition of the pregnant woman as to necessitate the immediate
93termination of her pregnancy to avert her death or for which a
94delay will create a serious risk of substantial and irreversible
95physical impairment of a major bodily function. A condition is
96not a medical emergency if it is based on a claim or diagnosis
97that the woman will engage in conduct that would result in her
98death or in substantial and irreversible physical impairment of
99a major bodily function.
100     (9)(6)  "Partial-birth abortion" means a termination of
101pregnancy in which the physician performing the termination of
102pregnancy partially vaginally delivers a living fetus before
103killing the fetus and completing the delivery.
104     (10)(7)  "Physician" means a physician licensed under
105chapter 458 or chapter 459 or a physician practicing medicine or
106osteopathic medicine in the employment of the United States.
107     (11)  "Postfertilization age" means the age of an unborn
108child as calculated from the fertilization of the human ovum.
109     (12)  "Probable postfertilization age of the unborn child"
110means what, in reasonable medical judgment, will with reasonable
111probability be the postfertilization age of the unborn child at
112the time an abortion is planned to be performed.
113     (13)  "Reasonable medical judgment" means a medical
114judgment that would be made by a reasonably prudent physician,
115knowledgeable about the case and the treatment possibilities
116with respect to the medical conditions involved.
117     (14)(8)  "Third trimester" means the weeks of pregnancy
118after the 24th week of pregnancy.
119     (15)  "Unborn child" or "fetus" means an individual
120organism of the species homo sapiens from fertilization until
121live birth.
122     Section 4.  A new subsection (1) is added to section
123390.0111, Florida Statutes, subsections (1) through (13) of that
124section are renumbered as subsections (2) through (14),
125respectively, and present subsection (10) and paragraph (b) of
126present subsection (11) of that section are amended, to read:
127     390.0111  Termination of pregnancies.-
128     (1)  PAIN-CAPABLE UNBORN CHILD PROTECTION.-
129     (a)1.  Except in the case of a medical emergency that
130prevents compliance with this subsection, an abortion may not be
131performed or induced or be attempted to be performed or induced
132unless the physician performing or inducing it has first made a
133determination of the probable postfertilization age of the
134unborn child or relied upon such a determination made by another
135physician. In making such a determination, a physician shall
136make such inquiries of the pregnant woman and perform or cause
137to be performed such medical examinations and tests as a
138reasonably prudent physician, knowledgeable about the case and
139the medical conditions involved, would consider necessary to
140perform in making an accurate diagnosis with respect to
141postfertilization age.
142     2.  Failure by any physician to conform to any requirement
143of this paragraph constitutes grounds for disciplinary action
144under s. 458.331 or s. 459.015.
145     (b)  A person may not perform or induce or attempt to
146perform or induce an abortion upon a woman when it has been
147determined, by the physician performing or inducing the abortion
148or by another physician upon whose determination that physician
149relies, that the probable postfertilization age of the woman's
150unborn child is 20 or more weeks unless, in reasonable medical
151judgment she has a condition that so complicates her medical
152condition as to necessitate the abortion of her pregnancy to
153avert her death or to avert serious risk of substantial and
154irreversible physical impairment of a major bodily function.
155Such a condition may not be deemed to exist if it is based on a
156claim or diagnosis that the woman will engage in conduct that
157would result in her death or in substantial and irreversible
158physical impairment of a major bodily function. With respect to
159this exception, the physician shall terminate the pregnancy in
160the manner that, in reasonable medical judgment, provides the
161best opportunity for the unborn child to survive, unless, in
162reasonable medical judgment, termination of the pregnancy in
163that manner would pose a greater risk either of the death of the
164pregnant woman or of the substantial and irreversible physical
165impairment of a major bodily function of the woman than would
166another available method. Such greater risk may not be deemed to
167exist if it is based on a claim or diagnosis that the woman will
168engage in conduct that would result in her death or in
169substantial and irreversible physical impairment of a major
170bodily function.
171     (c)  Any physician who performs or induces or attempts to
172perform or induce an abortion shall report to the department, on
173a schedule and in accordance with forms and rules and
174regulations adopted by the department, the following:
175     1.  If a determination of probable postfertilization age
176was made, the probable postfertilization age determined and the
177method and basis of the determination.
178     2.  If a determination of probable postfertilization age
179was not made, the basis of the determination that a medical
180emergency existed.
181     3.  If the probable postfertilization age was determined to
182be 20 or more weeks, the basis of the determination that the
183pregnant woman had a condition that so complicated her medical
184condition as to necessitate the abortion of her pregnancy to
185avert her death or to avert serious risk of substantial and
186irreversible physical impairment of a major bodily function, or
187the basis of the determination that it was necessary to preserve
188the life of an unborn child.
189     4.  The method used for the abortion and, in the case of an
190abortion performed when the probable postfertilization age was
191determined to be 20 or more weeks, whether the method of
192abortion used was one that, in reasonable medical judgment,
193provided the best opportunity for the unborn child to survive
194or, if such a method was not used, the basis of the
195determination that termination of the pregnancy in that manner
196would pose a greater risk either of the death of the pregnant
197woman or of the substantial and irreversible physical impairment
198of a major bodily function of the woman than would other
199available methods.
200     (d)  By June 30 of each year, the department shall issue a
201public report providing statistics for the previous calendar
202year compiled from all of the reports covering that year
203submitted in accordance with paragraph (c). Each such report
204shall also provide the statistics for all previous calendar
205years during which this subsection was in effect, adjusted to
206reflect any additional information from late or corrected
207reports. The department shall take care to ensure that none of
208the information included in the public reports could reasonably
209lead to the identification of any pregnant woman upon whom an
210abortion was performed.
211     (e)  Any physician who fails to submit a report under
212paragraph (c) by the end of 30 days after the due date shall be
213subject to a late fee of $500 for each additional 30-day period
214or portion of a 30-day period the report is overdue. Any
215physician required to report in accordance with this subsection
216who has not submitted a report, or has submitted only an
217incomplete report, more than 1 year after the due date, may be
218directed by a court of competent jurisdiction to submit a
219complete report within a time period stated by court order or be
220subject to civil contempt. Failure by any physician to conform
221to any requirement of this subsection constitutes grounds for
222disciplinary action under s. 458.331 or s. 459.015. Intentional
223or reckless falsification of any report required under paragraph
224(c) is a misdemeanor of the second degree, punishable as
225provided in s. 775.082 or s. 775.083.
226     (f)  Any person who intentionally or recklessly performs or
227attempts to perform an abortion in violation of paragraph (b)
228commits a felony of the third degree, punishable as provided in
229s. 775.082, s. 775.083, or s. 775.084. A penalty may not be
230assessed against the woman upon whom the abortion was performed
231or attempted to be performed.
232     (g)1.  Any woman upon whom an abortion was performed in
233violation of this subsection or the father of the unborn child
234who was the subject of such an abortion may maintain an action
235against the person who performed the abortion in an intentional
236or a reckless violation of this subsection for actual damages.
237Any woman upon whom an abortion was attempted in violation of
238this subsection may maintain an action against the person who
239attempted to perform the abortion in an intentional or a
240reckless violation of this subsection for actual damages.
241     2.  The woman upon whom an abortion was performed or
242attempted in violation of this subsection has a cause of action
243for injunctive relief against any person who has intentionally
244violated this subsection. Such a cause of action may also be
245maintained by a spouse, parent, sibling, guardian, or current or
246former licensed health care provider of such a woman or by the
247Attorney General or a state attorney with appropriate
248jurisdiction. An injunction granted under this subparagraph
249shall prevent the violator from performing or attempting more
250abortions in violation of this subsection in this state.
251     3.  If judgment is rendered in favor of the plaintiff in an
252action described in this section, the court shall also render
253judgment for reasonable attorney fees in favor of the plaintiff
254against the defendant.
255     4.  If judgment is rendered in favor of the defendant and
256the court finds that the plaintiff's suit was frivolous and
257brought in bad faith, the court shall also render judgment for
258reasonable attorney fees in favor of the defendant against the
259plaintiff.
260     5.  Neither damages nor attorney fees may be assessed
261against the woman upon whom an abortion was performed or
262attempted except as provided in subparagraph 4.
263     (h)  In every civil or criminal proceeding or action
264brought under this subsection, the court shall rule whether the
265anonymity of any woman upon whom an abortion was performed or
266attempted shall be preserved from public disclosure if she does
267not give her consent to such disclosure. The court, upon motion
268or sua sponte, shall make such a ruling and, upon determining
269that her anonymity should be preserved, shall issue orders to
270the parties, witnesses, and counsel and direct the sealing of
271the record and exclusion of individuals from courtrooms or
272hearing rooms to the extent necessary to safeguard her identity
273from public disclosure. Each such order shall be accompanied by
274specific written findings explaining why the anonymity of the
275woman should be preserved from public disclosure, why the order
276is essential to that end, how the order is narrowly tailored to
277serve that interest, and why no reasonable less restrictive
278alternative exists. In the absence of written consent of the
279woman upon whom an abortion was performed or attempted, anyone,
280other than a public official, who brings an action under
281paragraph (g) shall do so under a pseudonym. This paragraph does
282not require the concealment of the identity of the plaintiff or
283of witnesses from the defendant or from attorneys for the
284defendant.
285     (11)(10)  PENALTIES FOR VIOLATION.-Except as provided in
286subsections (1), (4), (3) and (8) (7):
287     (a)  Any person who willfully performs, or actively
288participates in, a termination of pregnancy procedure in
289violation of the requirements of this section commits a felony
290of the third degree, punishable as provided in s. 775.082, s.
291775.083, or s. 775.084.
292     (b)  Any person who performs, or actively participates in,
293a termination of pregnancy procedure in violation of the
294provisions of this section which results in the death of the
295woman commits a felony of the second degree, punishable as
296provided in s. 775.082, s. 775.083, or s. 775.084.
297     (12)(11)  CIVIL ACTION PURSUANT TO PARTIAL-BIRTH ABORTION;
298RELIEF.-
299     (b)  In a civil action under this section, appropriate
300relief includes:
301     1.  Monetary damages for all injuries, psychological and
302physical, occasioned by the violation of subsection (6) (5).
303     2.  Damages equal to three times the cost of the partial-
304birth abortion.
305     Section 5.  Subsection (2) of section 765.113, Florida
306Statutes, is amended to read:
307     765.113  Restrictions on providing consent.-Unless the
308principal expressly delegates such authority to the surrogate in
309writing, or a surrogate or proxy has sought and received court
310approval pursuant to rule 5.900 of the Florida Probate Rules, a
311surrogate or proxy may not provide consent for:
312     (2)  Withholding or withdrawing life-prolonging procedures
313from a pregnant patient prior to viability as defined in s.
314390.0111(5)(4).
315     Section 6.  Notwithstanding any other provision of law,
316within 90 days after the effective date of this act the
317Department of Health shall adopt rules to assist in compliance
318with s. 390.0111(1)(c), (d), and (e), Florida Statutes, as
319created by this act.
320     Section 7.  This act shall take effect July 1, 2012.


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