Florida Senate - 2019 SB 558
By Senator Gruters
23-00400-19 2019558__
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 the identity of a woman on whom an abortion
36 is performed or induced or on whom an abortion is
37 attempted to be performed or induced; requiring that
38 certain actions be brought under a pseudonym; creating
39 a special revenue account to pay for certain costs and
40 expenses incurred by the state in defending the act;
41 providing for funding and retention of interest;
42 providing construction and severability; providing an
43 effective date.
44
45 WHEREAS, pain receptors are present throughout an unborn
46 child’s entire body no later than 16 weeks after fertilization,
47 and nerves link these receptors to the brain’s thalamus and
48 subcortical plate by no later than 20 weeks after fertilization,
49 and
50 WHEREAS, an unborn child reacts to touch by 8 weeks after
51 fertilization, and
52 WHEREAS, 20 weeks after fertilization, an unborn child
53 reacts to stimuli that would be recognized as painful if applied
54 to an adult human, by recoiling or exhibiting other avoidance
55 responses, and
56 WHEREAS, the application of painful stimuli to an unborn
57 child is associated with significant increases in stress
58 hormones in the unborn child, known as the stress response, and
59 WHEREAS, subjection to painful stimuli is associated with
60 long-term harmful neurodevelopmental effects, such as altered
61 pain sensitivity and, possibly, emotional, behavioral, and
62 learning disabilities later in life, and
63 WHEREAS, for purposes of surgery on unborn children, fetal
64 anesthesia is routinely administered and is associated with a
65 decrease in stress hormones compared to their level when painful
66 stimuli are applied without anesthesia, and
67 WHEREAS, the assertion by some medical experts that an
68 unborn child is incapable of experiencing pain until later than
69 20 weeks after fertilization predominately rests on the
70 assumption that the ability to experience pain depends on the
71 cerebral cortex and requires nerve connections between the
72 thalamus and the cerebral cortex, and
73 WHEREAS, recent medical research and analysis, especially
74 since 2007, provide strong support for the conclusion that a
75 functioning cerebral cortex is not necessary to experience pain,
76 and
77 WHEREAS, substantial evidence indicates that children born
78 missing most of the cerebral cortex, a condition known as
79 hydranencephaly, nevertheless experience pain, and
80 WHEREAS, in adults, stimulation or ablation of the cerebral
81 cortex does not alter pain perception, while stimulation or
82 ablation of the thalamus does, and
83 WHEREAS, substantial evidence indicates that neural
84 elements, such as the subcortical plate, develop at specific
85 times during the early development of an unborn child, serve as
86 pain-processing structures, and are different from the neural
87 elements used for pain processing by adults, and
88 WHEREAS, the assertion of some medical experts that an
89 unborn child remains in a coma-like sleep state that precludes
90 it from experiencing pain is inconsistent with the documented
91 reaction of unborn children to painful stimuli and with the
92 experience of fetal surgeons who have found it necessary to
93 sedate an unborn child with anesthesia to prevent it from
94 thrashing about in reaction to invasive surgery, and
95 WHEREAS, the Florida Legislature has the constitutional
96 authority to make the judgment that there is substantial medical
97 evidence that an unborn child is capable of experiencing pain as
98 soon as 20 weeks after fertilization, and
99 WHEREAS, the United States Supreme Court has noted, in
100 Gonzales v. Carhart, 550 U.S. 124, 162-164 (2007), that “the
101 Court has given state and federal legislatures wide discretion
102 to pass legislation in areas where there is medical and
103 scientific uncertainty,” that “the law need not give abortion
104 doctors unfettered choice in the course of their medical
105 practice, nor should it elevate their status above other
106 physicians in the medical community,” and that “medical
107 uncertainty does not foreclose the exercise of legislative power
108 in the abortion context any more than it does in other
109 contexts,” and
110 WHEREAS, in Marshall v. United States, 414 U.S. 417, 427
111 (1974) the United States Supreme Court stated that “when
112 Congress undertakes to act in areas fraught with medical and
113 scientific uncertainties, legislative options must be especially
114 broad,” and
115 WHEREAS, the State of Florida asserts a compelling state
116 interest in protecting the lives of unborn children beginning at
117 the stage in their development at which substantial medical
118 evidence indicates that they are capable of feeling pain, and
119 WHEREAS, in enacting this legislation, the State of Florida
120 is not asking the United States Supreme Court to overturn or
121 revise its holding, first articulated in Roe v. Wade and
122 reaffirmed in Planned Parenthood of Southeastern Pennsylvania v.
123 Casey, 505 U.S. 833, 869 (1992), that the state interest in
124 unborn human life, which is “legitimate” throughout pregnancy,
125 becomes “compelling” at the point of fetal viability, but,
126 rather, it asserts a separate and independent state interest in
127 unborn human life which becomes compelling once an unborn child
128 is capable of feeling pain, which is asserted not instead of,
129 but in addition to, the State of Florida’s compelling state
130 interest in protecting the lives of unborn children beginning at
131 viability, and
132 WHEREAS, the United States Supreme Court, in Planned
133 Parenthood of Southeastern Pennsylvania v. Casey, established
134 that the “constitutional liberty of the woman to have some
135 freedom to terminate her pregnancy . . . is not so unlimited . .
136 . that from the outset the State cannot show its concern for the
137 life of the unborn, and at a later point in fetal development
138 the State’s interest in life has sufficient force so that the
139 right of the woman to terminate the pregnancy can be
140 restricted,” and
141 WHEREAS, the United States Supreme Court decision upholding
142 the federal Partial Birth Abortion Act in Gonzales v. Carhart,
143 550 U.S. 124 (2007) vindicated the dissenting opinion in the
144 earlier decision in Stenberg v. Carhart, 530 U.S. 914, 958-959
145 (2000) (Kennedy, J., dissenting), which had struck down a
146 Nebraska law banning partial-birth abortions, and
147 WHEREAS, the dissenting opinion in Stenberg v. Carhart
148 stated that “we held [in Casey] it was inappropriate for the
149 Judicial Branch to provide an exhaustive list of state interests
150 implicated by abortion,” that “Casey is premised on the States
151 having an important constitutional role in defining their
152 interests in the abortion debate,” that “it is only with this
153 principle in mind that [a state’s] interests can be given proper
154 weight,” that “States also have an interest in forbidding
155 medical procedures which, in the State’s reasonable
156 determination, might cause the medical profession or society as
157 a whole to become insensitive, even disdainful, to life,
158 including life in the human fetus,” and that “a State may take
159 measures to ensure the medical profession and its members are
160 viewed as healers, sustained by a compassionate and rigorous
161 ethic and cognizant of the dignity and value of human life, even
162 life which cannot survive without the assistance of others,” and
163 WHEREAS, mindful of Leavitt v. Jane L., 518 U.S. 137
164 (1996), in which, in the context of determining the severability
165 of a state statute regulating abortion, the United States
166 Supreme Court noted that an explicit statement of legislative
167 intent specifically made applicable to a particular statute is
168 of greater weight than a general savings or severability clause,
169 the Legislature intends that if any one or more provisions,
170 sections, subsections, sentences, clauses, phrases, or words of
171 this act or the application thereof to any person or
172 circumstance is found to be unconstitutional, the same is hereby
173 declared to be severable, and the balance of the act shall
174 remain effective notwithstanding such unconstitutionality, and
175 WHEREAS, the Legislature of the State of Florida declares,
176 moreover, that it would have passed this act, and each
177 provision, section, subsection, sentence, clause, phrase, or
178 word thereof, irrespective of the fact that any one or more
179 provisions, sections, subsections, sentences, clauses, phrases,
180 or words, or any of their applications, were to be declared
181 unconstitutional, NOW, THEREFORE,
182
183 Be It Enacted by the Legislature of the State of Florida:
184
185 Section 1. Section 390.301, Florida Statutes, is created to
186 read:
187 390.301 Florida Pain-Capable Unborn Child Protection Act.—
188 (1) SHORT TITLE.—This act may be cited as the “Florida
189 Pain-Capable Unborn Child Protection Act.”
190 (2) DEFINITIONS.—As used in this section, the term:
191 (a) “Abortion” means the use or prescription of any
192 instrument, medicine, or drug, or any other substance or device,
193 to intentionally kill the unborn child of a woman known to be
194 pregnant or to intentionally terminate the pregnancy of a woman
195 known to be pregnant with a purpose other than to produce a live
196 birth and preserve the life and health of the child born alive
197 or to remove a dead unborn child.
198 (b) “Attempt to perform or induce an abortion” means an
199 act, or an omission of a statutorily required act, which, under
200 the circumstances as perceived by the actor, constitutes a
201 substantial step in a course of conduct planned to culminate in
202 the performance or induction of an abortion in this state in
203 violation of this section.
204 (c) “Fertilization” means the fusion of a human sperm with
205 a human egg.
206 (d) “Medical emergency” means a determination, using
207 reasonable medical judgment, that the pregnant woman’s medical
208 condition necessitates the immediate abortion of an unborn child
209 before determining the postfertilization age of the unborn child
210 in order to avert the pregnant woman’s death or a serious risk
211 to the pregnant woman of a substantial and irreversible physical
212 impairment of one or more of her major bodily functions, not
213 including psychological or emotional conditions, which may
214 result from the delay necessary to determine the
215 postfertilization age of the unborn child. A condition may not
216 be determined to be a medical emergency if it is based on a
217 claim or diagnosis that the pregnant woman will engage in
218 conduct that she intends to result in her death or in a
219 substantial and irreversible physical impairment of one or more
220 of her major bodily functions.
221 (e) “Postfertilization age” means the age of the unborn
222 child as calculated from the time of fusion of the human sperm
223 with the human egg.
224 (f) “Probable postfertilization age of the unborn child”
225 means the postfertilization age, in weeks, of the unborn child
226 at the time the abortion of the unborn child is planned to be
227 performed or induced as determined through the use of reasonable
228 medical judgment.
229 (g) “Serious health risk to the unborn child’s mother”
230 means that the unborn child’s mother is at risk of death or a
231 substantial and irreversible physical impairment of one or more
232 of her major bodily functions, not including psychological or
233 emotional conditions, due to her pregnancy as determined through
234 the use of reasonable medical judgment. Such a determination may
235 not be made if it is based on a claim or diagnosis that the
236 unborn child’s mother will engage in conduct that she intends to
237 result in her death or in the substantial and irreversible
238 physical impairment of one or more of her major bodily
239 functions.
240 (h) “Unborn child” or “fetus” means an individual organism
241 of the species Homo sapiens from fertilization until live birth.
242 (i) “Unborn child’s mother” means a pregnant woman of the
243 species Homo sapiens regardless of age.
244 (3) PROTECTION FROM ABORTION OF AN UNBORN CHILD CAPABLE OF
245 FEELING PAIN.—
246 (a) A person may not perform or induce, or attempt to
247 perform or induce, the abortion of an unborn child capable of
248 feeling pain unless it is necessary to prevent a serious health
249 risk to the unborn child’s mother.
250 (b) An unborn child shall be deemed capable of feeling pain
251 if it has been determined by the physician performing or
252 inducing, or attempting to perform or induce, an abortion of the
253 unborn child, or by another physician upon whose determination
254 such physician relies, that the probable postfertilization age
255 of the unborn child is 20 or more weeks. For purposes of this
256 subsection, a dead unborn child is not capable of feeling pain.
257 (c) Except in a medical emergency or in the removal of a
258 dead unborn child, an abortion may not be performed or induced,
259 or be attempted to be performed or induced, unless the physician
260 performing or inducing, or attempting to perform or induce, the
261 abortion has first made a determination of the probable
262 postfertilization age of the unborn child or relied upon such a
263 determination made by another physician. In making this
264 determination, the physician shall inquire of the unborn child’s
265 mother and perform or cause to be performed such medical
266 examinations and tests as a reasonably prudent physician,
267 knowledgeable about the case and the medical conditions
268 involved, would consider necessary in making an accurate
269 determination of the probable postfertilization age of the
270 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, 2020, 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 or a determination that the unborn child was
295 dead;
296 2. The method of abortion, including, but not limited to,
297 one or more of the following, by or through which the abortion
298 was performed or induced:
299 a. Medication, including, but not limited to, an abortion
300 induced by mifepristone/misoprostol or methotrexate/misoprostol;
301 b. Manual vacuum aspiration;
302 c. Electrical vacuum aspiration;
303 d. Dilation and evacuation;
304 e. Induction, combined with dilation and evacuation;
305 f. Induction with prostaglandins;
306 g. Induction with intra-amniotic instillation, including,
307 but not limited to, saline or urea; or
308 h. Intact dilation and extraction, otherwise known as
309 partial-birth;
310 3. Whether an intra-fetal injection, including, but not
311 limited to, intra-fetal potassium chloride or digoxin, was used
312 in an attempt to induce the death of the unborn child;
313 4. The age and race of the unborn child’s mother;
314 5. If the unborn child was deemed capable of experiencing
315 pain under paragraph (3)(b), the basis of the determination that
316 the pregnancy was a serious health risk to the unborn child’s
317 mother; and
318 6. If the unborn child was deemed capable of experiencing
319 pain under paragraph (3)(b), whether the method of abortion used
320 was the method that, using reasonable medical judgment, provided
321 the best opportunity for the unborn child to survive and, if
322 such method was not used, the basis of the determination that
323 termination of the pregnancy using that method would pose a more
324 serious health risk to the unborn child’s mother than would
325 other available methods.
326 (b) Reports required by paragraph (a) may not contain the
327 name or the address of the woman whose pregnancy was terminated
328 and may not contain any other information identifying the woman
329 whose pregnancy was terminated; however, each report must
330 contain a unique medical record identification number that
331 allows the report to be matched to the medical records of the
332 woman whose pregnancy was terminated.
333 (c) Beginning on June 30, 2020, and each June 30
334 thereafter, the department shall publish in paper form and on
335 its website a summary providing statistics for the previous
336 calendar year compiled from all of the reports required by
337 paragraph (a) for that year. The summary must provide a
338 tabulation of data for all of the items required by paragraph
339 (a) to be reported and include each of the summaries from all
340 previous calendar years for which reports have been filed,
341 adjusted to reflect any additional data from late-filed reports
342 or corrected reports. The department shall ensure that the
343 information included in the summary cannot reasonably lead to
344 the identification of any pregnant woman upon whom an abortion
345 was performed, induced, or attempted.
346 (d) The department may assess upon a physician who fails to
347 submit a report required by this subsection by the end of the
348 30th day following the due date established by department rule a
349 late penalty of $1,000 for each 30-day period or portion thereof
350 that a report is overdue. If, more than 6 months following the
351 due date, a physician still has failed to submit such a report
352 or has submitted an incomplete report, the department may bring
353 an action against the physician requesting a court of competent
354 jurisdiction to order the physician to submit a complete report
355 within a specified timeframe or be subject to civil contempt.
356 The intentional or reckless failure by a physician to comply
357 with this section, other than the late filing of a report, or
358 the intentional or reckless failure by a physician to submit a
359 complete report in accordance with a court order, constitutes
360 unprofessional conduct and is grounds for disciplinary action
361 pursuant to s. 458.331 or s. 459.015, as applicable. A physician
362 who intentionally or recklessly falsifies a report required
363 under this section commits a misdemeanor of the first degree,
364 punishable as provided in s. 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, 2020.
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 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, 2019.