Florida Senate - 2017 SB 348
By Senator Steube
23-00215C-17 2017348__
1 A bill to be entitled
2 An act relating to the termination of pregnancy;
3 creating s. 390.301, F.S.; providing a short title;
4 defining terms; prohibiting the attempted or actual
5 performance or induction of an abortion in certain
6 circumstances; providing a parameter to be used in
7 determining the applicability of the prohibition;
8 requiring a physician to make a specified
9 determination before performing or inducing or
10 attempting to perform or induce an abortion; requiring
11 that, except in the case of a medical emergency, the
12 physician performing or inducing an abortion determine
13 the probable postfertilization age of the unborn
14 child; providing parameters for making the
15 determination; requiring a physician to use an
16 abortion method that provides the best opportunity for
17 the unborn child to survive the abortion in specified
18 circumstances; requiring certain physicians to report
19 specified information to the Department of Health
20 containing specified data each time the physician
21 performs or attempts to perform an abortion;
22 prohibiting the reports from including information
23 that would identify the woman whose pregnancy was
24 terminated; requiring the reports to include a unique
25 medical record identification number; requiring the
26 department to publish a summary of data from the
27 physician reports on an annual basis; providing
28 penalties for failure to timely submit physician
29 reports; providing for disciplinary action; requiring
30 the department to adopt rules; providing criminal
31 penalties and civil and criminal remedies; providing
32 for the awarding of attorney fees; requiring a court
33 to rule on the need for the protection, in certain
34 civil and criminal proceedings or actions, of the
35 privacy of a woman on whom an abortion is performed or
36 induced or on whom an abortion is attempted to be
37 performed or induced; requiring that certain actions
38 be brought under a pseudonym; creating a special
39 revenue account to pay for certain costs and expenses
40 incurred by the state in defending the act; providing
41 for funding and retention of interest; providing
42 construction; providing an effective date.
43
44 WHEREAS, pain receptors are present throughout an unborn
45 child’s entire body no later than 16 weeks after fertilization,
46 and nerves link these receptors to the brain’s thalamus and
47 subcortical plate by no later than 20 weeks after fertilization,
48 and
49 WHEREAS, an unborn child reacts to touch by 8 weeks after
50 fertilization, and
51 WHEREAS, 20 weeks after fertilization, an unborn child
52 reacts to stimuli that would be recognized as painful if applied
53 to an adult human, by recoiling or exhibiting other avoidance
54 responses, and
55 WHEREAS, the application of painful stimuli to an unborn
56 child is associated with significant increases in stress
57 hormones in the unborn child, known as the stress response, and
58 WHEREAS, subjection to painful stimuli is associated with
59 long-term harmful neurodevelopmental effects, such as altered
60 pain sensitivity and, possibly, emotional, behavioral, and
61 learning disabilities later in life, and
62 WHEREAS, for purposes of surgery on unborn children, fetal
63 anesthesia is routinely administered and is associated with a
64 decrease in stress hormones compared to their level when painful
65 stimuli are applied without anesthesia, and
66 WHEREAS, the assertion by some medical experts that an
67 unborn child is incapable of experiencing pain until later than
68 20 weeks after fertilization predominately rests on the
69 assumption that the ability to experience pain depends on the
70 cerebral cortex and requires nerve connections between the
71 thalamus and the cerebral cortex, and
72 WHEREAS, recent medical research and analysis, especially
73 since 2007, provides strong support for the conclusion that a
74 functioning cerebral cortex is not necessary to experience pain,
75 and
76 WHEREAS, substantial evidence indicates that children born
77 missing most of the cerebral cortex, a condition known as
78 hydranencephaly, nevertheless experience pain, and
79 WHEREAS, in adults, stimulation or ablation of the cerebral
80 cortex does not alter pain perception, while stimulation or
81 ablation of the thalamus does, and
82 WHEREAS, substantial evidence indicates that neural
83 elements, such as the subcortical plate, available at specific
84 times during the early development of an unborn child serve as
85 pain-processing structures and are different from the neural
86 elements used for pain processing by adults, and
87 WHEREAS, the assertion of some medical experts that an
88 unborn child remains in a coma-like sleep state that precludes
89 it from experiencing pain is inconsistent with the documented
90 reaction of unborn children to painful stimuli and with the
91 experience of fetal surgeons who have found it necessary to
92 sedate an unborn child with anesthesia to prevent it from
93 thrashing about in reaction to invasive surgery, and
94 WHEREAS, the Florida Legislature has the constitutional
95 authority to make the judgment that there is substantial medical
96 evidence that an unborn child is capable of experiencing pain by
97 20 weeks after fertilization, and
98 WHEREAS, the United States Supreme Court has noted, in
99 Gonzales v. Carhart, 550 U.S. 124, 162-164 (2007), that “the
100 Court has given state and federal legislatures wide discretion
101 to pass legislation in areas where there is medical and
102 scientific uncertainty,” that “the law need not give abortion
103 doctors unfettered choice in the course of their medical
104 practice, nor should it elevate their status above other
105 physicians in the medical community,” and that “medical
106 uncertainty does not foreclose the exercise of legislative power
107 in the abortion context any more than it does in other
108 contexts,” and
109 WHEREAS, in Marshall v. United States, 414 U.S. 417, 427
110 (1974) the United States Supreme Court stated that “when
111 Congress undertakes to act in areas fraught with medical and
112 scientific uncertainties, legislative options must be especially
113 broad,” and
114 WHEREAS, the State of Florida asserts a compelling state
115 interest in protecting the lives of unborn children from the
116 stage in their development at which substantial medical evidence
117 indicates that they are capable of feeling pain, and
118 WHEREAS, in enacting this legislation, the State of Florida
119 is not asking the United States Supreme Court to overturn or
120 revise its holding, first articulated in Roe v. Wade and
121 reaffirmed in Planned Parenthood of Southeastern Pennsylvania v.
122 Casey, 505 U.S. 833, 869 (1992), that the state interest in
123 unborn human life, which is “legitimate” throughout pregnancy,
124 becomes “compelling” at the point of fetal viability, but,
125 rather, it asserts a separate and independent state interest in
126 unborn human life which becomes compelling once an unborn child
127 is capable of feeling pain, which is asserted not instead of,
128 but in addition to, the State of Florida’s compelling state
129 interest in protecting the lives of unborn children from the
130 stage of viability, and
131 WHEREAS, the United States Supreme Court, in Planned
132 Parenthood of Southeastern Pennsylvania v. Casey, established
133 that the “constitutional liberty of the woman to have some
134 freedom to terminate her pregnancy . . . is not so unlimited . .
135 . that from the outset the State cannot show its concern for the
136 life of the unborn, and at a later point in fetal development
137 the State’s interest in life has sufficient force so that the
138 right of the woman to terminate the pregnancy can be
139 restricted,” and
140 WHEREAS, the United States Supreme Court decision upholding
141 the federal Partial Birth Abortion Act in Gonzales v. Carhart,
142 550 U.S. 124 (2007) vindicated the dissenting opinion in the
143 earlier decision in Stenberg v. Carhart, 530 U.S. 914, 958-959
144 (2000) (Kennedy, J., dissenting), which had struck down a
145 Nebraska law banning partial-birth abortions, and
146 WHEREAS, the dissenting opinion in Stenberg v. Carhart
147 stated that “we held [in Casey] it was inappropriate for the
148 Judicial Branch to provide an exhaustive list of state interests
149 implicated by abortion,” that “Casey is premised on the States
150 having an important constitutional role in defining their
151 interests in the abortion debate,” that “it is only with this
152 principle in mind that [a state’s] interests can be given proper
153 weight,” that “States also have an interest in forbidding
154 medical procedures which, in the State’s reasonable
155 determination, might cause the medical profession or society as
156 a whole to become insensitive, even disdainful, to life,
157 including life in the human fetus,” and that “a State may take
158 measures to ensure the medical profession and its members are
159 viewed as healers, sustained by a compassionate and rigorous
160 ethic and cognizant of the dignity and value of human life, even
161 life which cannot survive without the assistance of others,” and
162 WHEREAS, mindful of Leavitt v. Jane L., 518 U.S. 137
163 (1996), in which, in the context of determining the severability
164 of a state statute regulating abortion, the United States
165 Supreme Court noted that an explicit statement of legislative
166 intent specifically made applicable to a particular statute is
167 of greater weight than a general savings or severability clause,
168 the Legislature intends that if any one or more provisions,
169 sections, subsections, sentences, clauses, phrases, or words of
170 this act or the application thereof to any person or
171 circumstance is found to be unconstitutional, the same is hereby
172 declared to be severable, and the balance of the act shall
173 remain effective notwithstanding such unconstitutionality, and
174 WHEREAS, the Legislature of the State of Florida declares,
175 moreover, that it would have passed this act, and each
176 provision, section, subsection, sentence, clause, phrase, or
177 word thereof, irrespective of the fact that any one or more
178 provisions, sections, subsections, sentences, clauses, phrases,
179 or words, or any of their applications, were to be declared
180 unconstitutional, NOW, THEREFORE,
181
182 Be It Enacted by the Legislature of the State of Florida:
183
184 Section 1. Section 390.301, Florida Statutes, is created to
185 read:
186 390.301 Florida Pain-Capable Unborn Child Protection Act.—
187 (1) SHORT TITLE.—This act may be cited as the “Florida
188 Pain-Capable Unborn Child Protection Act.”
189 (2) DEFINITIONS.—As used in this section, the term:
190 (a) “Abortion” means the use or prescription of any
191 instrument, medicine, or drug, or any other substance or device,
192 to intentionally kill the unborn child of a woman known to be
193 pregnant or to intentionally terminate the pregnancy of a woman
194 known to be pregnant with a purpose other than to produce a live
195 birth and preserve the life and health of the child born alive
196 or to remove a dead unborn child.
197 (b) “Attempt to perform or induce an abortion” means an
198 act, or an omission of a statutorily required act, which, under
199 the circumstances as perceived by the actor, constitutes a
200 substantial step in a course of conduct planned to culminate in
201 the performance or induction of an abortion in this state in
202 violation of this section.
203 (c) “Fertilization” means the fusion of a human sperm with
204 a human egg.
205 (d) “Medical emergency” means a determination, using
206 reasonable medical judgment, that the pregnant woman’s medical
207 condition necessitates the immediate abortion of her pregnancy
208 before determining the postfertilization age of the unborn child
209 in order to avert the pregnant woman’s death or a serious risk
210 to the pregnant woman of a substantial and irreversible physical
211 impairment of one or more of her major bodily functions, not
212 including psychological or emotional conditions, which may
213 result from the delay necessary to determine the
214 postfertilization age of the unborn child. A condition may not
215 be determined to be a medical emergency if it is based on a
216 claim or diagnosis that the pregnant woman will engage in
217 conduct that she intends to result in her death or in a
218 substantial and irreversible physical impairment of one or more
219 of her major bodily functions.
220 (e) “Postfertilization age” means the age of the unborn
221 child as calculated from the fusion of the human spermatozoon
222 with the human ovum.
223 (f) “Probable postfertilization age of the unborn child”
224 means the probable postfertilization age, in weeks, of the
225 unborn child at the time the abortion of the unborn child is
226 planned to be performed or induced as determined through the use
227 of reasonable medical judgment.
228 (g) “Serious health risk to the unborn child’s mother”
229 means that the unborn child’s mother is at risk of death or a
230 substantial and irreversible physical impairment of one or more
231 of her major bodily functions, not including psychological or
232 emotional conditions, due to her pregnancy as determined through
233 the use of reasonable medical judgment. Such a determination may
234 not be made if it is based on a claim or diagnosis that the
235 unborn child’s mother will engage in conduct that she intends to
236 result in her death or in the substantial and irreversible
237 physical impairment of one or more of her major bodily
238 functions.
239 (h) “Unborn child” or “fetus” means an individual organism
240 of the species Homo sapiens from fertilization until live birth.
241 (i) “Unborn child’s mother” means a pregnant female of the
242 species Homo sapiens regardless of whether she has reached 18
243 years of age.
244 (j) “Woman” means a female of the species Homo sapiens
245 regardless of whether she has reached 18 years of age.
246 (3) PROTECTION FROM ABORTION OF AN UNBORN CHILD CAPABLE OF
247 FEELING PAIN.—
248 (a) A person may not perform or induce, or attempt to
249 perform or induce, the abortion of an unborn child capable of
250 feeling pain unless it is necessary to prevent a serious health
251 risk to the unborn child’s mother.
252 (b) An unborn child shall be deemed capable of feeling pain
253 if it has been determined by the physician performing or
254 inducing, or attempting to perform or induce, an abortion of the
255 unborn child, or by another physician upon whose determination
256 such physician relies, that the probable postfertilization age
257 of the unborn child is 20 or more weeks.
258 (c) Except in the case of a medical emergency, an abortion
259 may not be performed or induced, or be attempted to be performed
260 or induced, unless the physician performing or inducing, or
261 attempting to perform or induce, the abortion has first made a
262 determination of the probable postfertilization age of the
263 unborn child or relied upon such a determination made by another
264 physician. In making this determination, the physician shall
265 inquire of the unborn child’s mother and perform or cause to be
266 performed such medical examinations and tests as a reasonably
267 prudent physician, knowledgeable about the case and the medical
268 conditions involved, would consider necessary in making an
269 accurate determination of the probable postfertilization age of
270 the unborn child.
271 (d) When an abortion of an unborn child capable of feeling
272 pain is necessary to prevent a serious health risk to the unborn
273 child’s mother, the physician shall terminate the pregnancy
274 through or by the method that, using reasonable medical
275 judgment, provides the best opportunity for the unborn child to
276 survive, unless, using reasonable medical judgment, termination
277 of the pregnancy in that manner would pose a more serious health
278 risk to the unborn child’s mother than would other available
279 methods. Such a determination may not be made if the
280 determination is based on a claim or diagnosis that the unborn
281 child’s mother will engage in conduct that she intends to result
282 in her death or in the substantial and irreversible physical
283 impairment of one or more of her major bodily functions.
284 (4) REPORTING.—
285 (a) Beginning January 1, 2018, a physician who performs or
286 induces, or attempts to perform or induce, an abortion shall
287 report all of the following to the department on forms, and in
288 accordance with schedules and other requirements, adopted by
289 department rule:
290 1. The probable postfertilization age of the unborn child
291 and whether ultrasound was employed in making the determination,
292 and, if a determination of probable postfertilization age was
293 not made, the basis of the determination that a medical
294 emergency existed;
295 2. The method of abortion, including, but not limited to,
296 one or more of the following, by or through which the abortion
297 was performed or induced:
298 a. Medication, including, but not limited to, an abortion
299 induced by mifepristone/misoprostol or methotrexate/misoprostol;
300 b. Manual vacuum aspiration;
301 c. Electrical vacuum aspiration;
302 d. Dilation and evacuation;
303 e. Induction, combined with dilation and evacuation;
304 f. Induction with prostaglandins;
305 g. Induction with intra-amniotic instillation, including,
306 but not limited to, saline or urea; or
307 h. Intact dilation and extraction, otherwise known as
308 partial-birth;
309 3. Whether an intra-fetal injection, including, but not
310 limited to, intra-fetal potassium chloride or digoxin, was used
311 in an attempt to induce the death of the unborn child;
312 4. The age and race of the unborn child’s mother;
313 5. If the unborn child was deemed capable of experiencing
314 pain under paragraph (3)(b), the basis of the determination that
315 the pregnancy was a serious health risk to the unborn child’s
316 mother; and
317 6. If the unborn child was deemed capable of experiencing
318 pain under paragraph (3)(b), whether the method of abortion used
319 was the method that, using reasonable medical judgment, provided
320 the best opportunity for the unborn child to survive and, if
321 such method was not used, the basis of the determination that
322 termination of the pregnancy using that method would pose a more
323 serious health risk to the unborn child’s mother than would
324 other available methods.
325 (b) Reports required by paragraph (a) may not contain the
326 name or the address of the woman whose pregnancy was terminated,
327 and may not contain any other information identifying the woman
328 whose pregnancy was terminated; however, each report must
329 contain a unique medical record identification number that
330 allows the report to be matched to the medical records of the
331 woman whose pregnancy was terminated.
332 (c) Beginning on June 30, 2018, and each June 30
333 thereafter, the department shall publish in paper form and on
334 its website a summary providing statistics for the previous
335 calendar year compiled from all of the reports required by
336 paragraph (a) for that year. The summary must provide a
337 tabulation of data for all of the items required by paragraph
338 (a) to be reported and include each of the summaries from all
339 previous calendar years for which reports have been filed,
340 adjusted to reflect any additional data from late-filed or
341 corrected reports. The department shall ensure that the
342 information included in the summary cannot reasonably lead to
343 the identification of any pregnant woman upon whom an abortion
344 was performed, induced, or attempted.
345 (d) The department may assess a late fee of $1,000 for each
346 30-day period or portion thereof that a report is overdue upon a
347 physician who fails to submit a report required by this
348 subsection by the end of the 30th day following the due date
349 established by department rule. If, more than 6 months following
350 the due date, a physician still has failed to submit such a
351 report or has submitted an incomplete report, the department may
352 bring an action against the physician requesting a court of
353 competent jurisdiction to order the physician to submit a
354 complete report within a specified timeframe or be subject to
355 civil contempt. The intentional or reckless failure by a
356 physician to comply with this section, other than the late
357 filing of a report, or the intentional or reckless failure by a
358 physician to submit a complete report in accordance with a court
359 order, constitutes unprofessional conduct and is grounds for
360 disciplinary action pursuant to s. 458.331 or s. 459.015, as
361 applicable. A physician who intentionally or recklessly
362 falsifies a report required under this section commits a
363 misdemeanor of the first degree, punishable as provided in s.
364 775.082 or s. 775.083.
365 (5) RULEMAKING.—The department shall adopt rules, including
366 forms for the reports required by subsection (4), as necessary
367 to implement this section, by January 1, 2018.
368 (6) CRIMINAL PENALTIES.—A person who intentionally or
369 recklessly performs, or induces or attempts to perform or
370 induce, an abortion in violation of this section commits a
371 felony of the third degree, punishable as provided in s.
372 775.082, s. 775.083, or s. 775.084. A penalty may not be
373 assessed against the woman upon whom the abortion is performed
374 or induced or upon whom an abortion is attempted to be performed
375 or induced.
376 (7) CIVIL AND CRIMINAL REMEDIES.—
377 (a) A woman upon whom an abortion has been performed or
378 induced in intentional or reckless violation of this section, or
379 the father of an unborn child aborted in intentional or reckless
380 violation of this section, may maintain a civil action for
381 actual and punitive damages against the person who performed or
382 induced the abortion. A woman upon whom an abortion has been
383 attempted in intentional or reckless violation of this section
384 may maintain a civil action for actual and punitive damages
385 against the person who attempted to perform or induce the
386 abortion.
387 (b) An injunction may be obtained against a person who has
388 intentionally or recklessly violated this section to prevent him
389 or her from performing or inducing, or attempting to perform or
390 induce, further abortions in violation of this section. A cause
391 of action for injunctive relief against a person who has
392 intentionally or recklessly violated this section may be
393 maintained by one or more of the following:
394 1. The woman upon whom an abortion was performed or
395 induced, or upon whom an abortion was attempted to be performed
396 or induced, in violation of this section;
397 2. The spouse, parent, sibling, or guardian of, or a
398 current or former licensed health care provider of, the woman
399 upon whom an abortion was performed or induced, or upon whom an
400 abortion was attempted to be performed or induced, in violation
401 of this section;
402 3. A state attorney with jurisdiction; or
403 4. The Office of the Attorney General.
404 (c) If a judgment is entered in favor of the plaintiff in
405 an action brought under this section, the court shall award
406 reasonable attorney fees to the plaintiff.
407 (d) If a judgment is entered in favor of the defendant in
408 an action brought under this section and the court finds that
409 the plaintiff’s suit was frivolous and brought in bad faith, the
410 court shall award reasonable attorney fees to the defendant.
411 (e) Damages or attorney fees may not be assessed against a
412 woman upon whom an abortion was performed or induced, or upon
413 whom an abortion was attempted to be performed or induced,
414 except in accordance with paragraph (d).
415 (8) PROTECTION OF PRIVACY IN COURT PROCEEDINGS.—In each
416 civil or criminal proceeding or action brought under this
417 section, the court shall rule on whether the anonymity of a
418 woman upon whom an abortion has been performed or induced, or
419 upon whom an abortion has been attempted to be performed or
420 induced, must be preserved from public disclosure if the woman
421 does not give her consent to such disclosure. The court, upon
422 its own motion or the motion of a party, shall make such a
423 ruling and, if it determines that anonymity should be preserved,
424 shall issue an order to preserve the woman’s anonymity to the
425 parties, witnesses, and counsel and shall direct the sealing of
426 the record and the exclusion of individuals from courtrooms or
427 hearing rooms to the extent necessary to safeguard the woman’s
428 identity from public disclosure. Each such order shall be
429 accompanied by specific written findings explaining why the
430 anonymity of the woman should be preserved; why the order is
431 essential to that end; how the order is narrowly tailored to
432 serve that interest; and why a reasonable, less restrictive
433 alternative does not exist. In the absence of the written
434 consent of the woman upon whom an abortion has been performed or
435 induced or upon whom an abortion has been attempted to be
436 performed or induced, anyone, other than a public official, who
437 brings an action under paragraph (7)(a) or paragraph (7)(b)
438 shall do so under a pseudonym. This section may not be construed
439 to conceal the identity of the plaintiff or any witness from the
440 defendant or from attorneys for the defendant.
441 (9) LITIGATION DEFENSE FUND.—
442 (a) A special revenue account known as the Florida Pain
443 Capable Unborn Child Protection Act Litigation Account is
444 created in the Operating Trust Fund within the Department of
445 Legal Affairs for the purpose of providing funds to pay costs
446 and expenses incurred by the Attorney General in relation to
447 actions taken to defend this act.
448 (b) The account shall:
449 1. Be administered by the Department of Legal Affairs;
450 2. Consist of any appropriations made to the account by the
451 Legislature and any private donations, gifts, or grants made to
452 the account; and
453 3. Retain any interest income derived.
454 (10) CONSTRUCTION.—This section may not be construed to
455 repeal, by implication or otherwise, s. 390.01112 or any other
456 applicable provision of state law regulating or restricting
457 abortion. An abortion that complies with this section but
458 violates s. 390.01112 or any other applicable provision of state
459 law shall be deemed unlawful. An abortion that complies with s.
460 390.01112 or any other state law regulating or restricting
461 abortion but violates this section shall be deemed unlawful. If
462 this act, or any portion thereof, is temporarily or permanently
463 restrained or enjoined by judicial order, all other state laws
464 regulating or restricting abortion shall be enforced as though
465 the restrained or enjoined provisions had not been adopted;
466 however, if such temporary or permanent restraining order or
467 injunction is stayed or dissolved or otherwise ceases to have
468 effect, such provisions shall have full force and effect.
469 Section 2. This act shall take effect July 1, 2017.