2021 -- S 0669

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LC000256

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2021

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A N   A C T

RELATING TO HEALTH AND SAFETY -- RHODE ISLAND PAIN-CAPABLE UNBORN

CHILD PROTECTION ACT

     

     Introduced By: Senators de la Cruz, Morgan, and Lombardo

     Date Introduced: March 18, 2021

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby

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amended by adding thereto the following chapter:

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CHAPTER 95

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RHODE ISLAND PAIN-CAPABLE UNBORN CHILD PROTECTION ACT

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     23-95-1. Short title.

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     This chapter shall be known and may be cited as the “Rhode Island Pain-Capable Unborn

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Child Protection Act”.

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     23-95-2. Legislative findings.

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     The general assembly makes the following findings:

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     (1) Pain receptors (nociceptors) are present throughout the unborn child's entire body no

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later than sixteen (16) weeks after fertilization and nerves link these receptors to the brain's

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thalamus and subcortical plate by no later than twenty (20) weeks.

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     (2) By eight (8) weeks after fertilization, the unborn child reacts to touch. After twenty (20)

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weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult

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human, for example, by recoiling.

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     (3) In the unborn child, application of such painful stimuli is associated with significant

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increases in stress hormones known as the stress response.

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     (4) Subjection to such painful stimuli is associated with long-term harmful

 

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neurodevelopmental effects, such as altered pain sensitivity and, possibly, emotional, behavioral

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and learning disabilities later in life.

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     (5) For the purposes of surgery on unborn children, fetal anesthesia is routinely

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administered and is associated with a decrease in stress hormones compared to their level when

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painful stimuli are applied without the anesthesia.

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     (6) The position, asserted by some medical experts, that the unborn child is incapable of

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experiencing pain until a point later in pregnancy than twenty (20) weeks after fertilization

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predominately rests on the assumption that the ability to experience pain depends on the cerebral

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cortex and requires nerve collections between the thalamus and the cortex. However, recent medical

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research and analysis, especially since 2007, provides strong evidence for the conclusion that a

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functioning cortex is not necessary to experience pain.

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     (7) Substantial evidence indicates that children born missing the bulk of the cerebral cortex,

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those with hydranencephaly, nevertheless experience pain.

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     (8) In adults, stimulation or ablation of the cerebral cortex does not alter pain perception,

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while stimulation or ablation of the thalamus does.

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     (9) Substantial evidence indicates that structures used for pain processing in early

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development differ from those of adults, using different neural elements available at specific times

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during development, such as the subcortical plate, to fulfill the role of pain processing.

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     (10) The position, asserted by some medical experts, that the unborn child remains in a

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coma-like sleep state that precludes the unborn child experiencing pain is inconsistent with the

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documented reaction of unborn children to painful stimuli and with the experience of fetal surgeons

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who have found it necessary to sedate the unborn child with anesthesia to prevent the unborn child

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from thrashing about in reaction to invasive surgery.

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     (11) Consequently, there is substantial medical evidence that an unborn child is capable of

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experiencing pain by twenty (20) weeks after fertilization. The general asssembly has the

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constitutional authority to make this judgment. As the United States Supreme Court has noted in

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Gonzales v. Carhart, 550 U.S. 124, 162-64 (2007), "[t]he Court has given state and federal

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legislatures wide discretion to pass legislation in areas where there is medical and scientific

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uncertainty.”; see Marshall v. United States, 414 U.S. 417, 427 (1974) (When Congress undertakes

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to act in areas fraught with medical and scientific uncertainties, legislative options must be

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especially broad.). The law need not give abortion doctors unfettered choice in the course of their

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medical practice, nor should it elevate their status above other physicians in the medical

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community. Medical uncertainly does not foreclose the exercise of legislative power in the abortion

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context any more than it does in other contexts.

 

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     (12) It is the purpose of the state to assert a compelling state interest in protecting the lives

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of unborn children from the stage at which substantial medical evidence indicates that they are

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capable of feeling pain.

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     (13) In enacting this legislation the state of Rhode Island is not asking the Supreme Court

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to overturn or replace its holding, first articulated in Roe v. Wade, and reaffirmed in Planned

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Parenthood of Southeastern Pennsylvania v. Casey, that the state interest in unborn human life,

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which is "legitimate" throughout pregnancy, becomes "compelling" at viability. Rather, it asserts a

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separate and independent compelling state interest in unborn human life that exists once the unborn

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child is capable of feeling pain, which is asserted not in replacement of, but in addition to the state's

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compelling state interest in protecting the lives of unborn children from the stage of viability.

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     (14) The United States Supreme Court has established that the "constitutional liberty of the

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woman to have some freedom to terminate her pregnancy ... is not so unlimited . . . that from the

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outset the State cannot show its concern for the life of the unborn, and at a later point in fetal

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development the state's interest in life has sufficient force so that the right of the woman to terminate

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the pregnancy can be restricted." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505

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U.S. 833, 869 (1992).

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     (15) The Supreme Court decision upholding the Partial-Birth Abortion Ban Act, Gonzales

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v. Carhart, 550 U.S. 124 (2007) vindicated the dissenting opinion in the earlier decision that had

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struck down Nebraska's Partial-Birth Abortion Ban Act. That opinion stated, "[In Casey] We held

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it was inappropriate for the Judicial Branch to provide an exhaustive list of state interests implicated

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by abortion.” Casey is premised on the states having an important constitutional role in defining

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their interests in the abortion debate. It is only with this principle in mind that [a state's] interests

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can be given proper weight. States also have an interest in forbidding medical procedures which,

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in the state's reasonable determination, might cause the medical profession or society as a whole to

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become insensitive, even disdainful, to life, including life in the human fetus. A state may take

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measures to ensure the medical profession and its members are viewed as healers, sustained by a

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compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life

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which cannot survive without the assistance of others." Stenberg v. Carhart, 350 U.S. 914, 958-59

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(2000)(Kennedy, J., dissenting).

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     (16) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in the context of

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determining the severability of a state statute regulating abortion, the United States Supreme Court

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noted that an explicit statement of legislative intent specifically made applicable to a particular

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statute is of greater weight than a general savings or severability clause, it is the intent of the state

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that if any one or more provisions, sections, subsections, sentences, clauses, phrases or words of

 

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this chapter or the application thereof to any person or circumstance is found to be unconstitutional,

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the same is hereby declared to be severable and the balance of this act shall remain effective

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notwithstanding such unconstitutionality. Moreover, the state declares that it would have passed

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this chapter, and each provision, section, subsection, sentence, clause, phrase or word thereof,

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irrespective of the fact that any one or more provisions, sections, subsections, sentences, clauses,

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phrases or words, or any of their applications, were to be declared unconstitutional.

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     23-95-3. Definitions.

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     For purposes of this chapter:

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     (1) "Abortion" means the use or prescription of any instrument, medicine, drug, or any

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other substance or device to:

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      (i) Intentionally kill the unborn child of a woman known to be pregnant; or

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     (ii) Intentionally terminate the pregnancy of a woman known to be pregnant, with an

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intention other than:

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      (A) After viability to produce a live birth and preserve the life and health of the child born

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alive; or

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      (B) To remove a dead unborn child.

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     (2) "Attempt to perform or induce an abortion" means an act, or an omission of a statutorily

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required act, that, under the circumstances as the actor believes them to be, constitutes a substantial

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step in a course of conduct planned to culminate in the performance or induction of an abortion in

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this state in violation of this chapter.

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     (3) "Department" means the department of health.

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     (4) "Fertilization" means the fusion of a human spermatozoon with a human ovum.

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     (5) "Medical emergency" means a condition that, in reasonable medical judgment, so

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complicates the medical condition of the pregnant woman that it necessitates the immediate

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abortion of her pregnancy without first determining post-fertilization age to avert her death, or for

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which the delay necessary to determine post-fertilization age will create serious risk of substantial

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and irreversible physical impairment of a major bodily function, not including psychological or

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emotional conditions. No condition may be deemed a medical emergency if based on a claim or

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diagnosis that the woman will engage in conduct which she intends to result in her death or in

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substantial and irreversible physical impairment of a major bodily function.

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     (6) "Physician" means any person licensed to practice medicine and surgery, or osteopathic

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medicine and surgery in this state.

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     (7) "Post-fertilization age" means the age of the unborn child as calculated from the fusion

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of a human spermatozoon with a human ovum.

 

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     (8) "Probable post-fertilization age of the unborn child" means what, in reasonable medical

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judgment, will with reasonable probability be the post-fertilization age of the unborn child at the

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time the abortion is planned to be performed or induced.

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     (9) "Reasonable medical judgment" means a medical judgment that would be made by a

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reasonably prudent physician, knowledgeable about the case and the treatment possibilities with

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respect to the medical conditions involved.

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     (10) "Serious health risk to the unborn child's mother" means that in reasonable medical

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judgment she has a condition that so complicates her medical condition that it necessitates the

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abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible

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physical impairment of a major bodily function, not including psychological or emotional

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conditions. No greater risk may be determined to exist if it is based on a claim or diagnosis that the

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woman will engage in conduct which she intends to result in her death or in substantial and

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irreversible physical impairment of a major bodily function.

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     (11) "Unborn child" or "fetus" each mean an individual organism of the species homo

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sapiens from fertilization until live birth.

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     (12) "Woman" means a female human being, whether or not she has reached the age of

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majority.

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     23-95-4. Protection of unborn child capable of feeling pain from abortion.

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     (a) No person may perform or induce, or attempt to perform or induce, an abortion of an

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unborn child capable of feeling pain, unless necessary to prevent serious health risk to the unborn

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child's mother.

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     (b) An unborn child shall be deemed capable of feeling pain when it has been determined,

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by the physician performing or inducing, or attempting to perform or induce the abortion, or by

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another physician upon whose determination that physician relies, that the probable post

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fertilization age of the woman's unborn child is twenty (20) or more weeks.

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     (c) Except in the case of a medical emergency, no abortion may be performed or induced,

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or be attempted to be performed or induced, unless the physician performing or inducing it has first

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made a determination of the probable post fertilization age of the unborn child or relied upon such

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a determination made by another physician. In making this determination, the physician shall make

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such inquiries of the woman and perform or cause to be performed such medical examinations and

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tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions

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involved, would consider necessary to perform in making an accurate diagnosis with respect to post

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fertilization age.

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     (d) When an abortion of an unborn child capable of feeling pain is necessary to prevent

 

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serious health risk to the unborn child's mother, the physician shall terminate the pregnancy in the

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manner which, in reasonable medical judgment, provides the best opportunity for the unborn child

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to survive, unless, in reasonable medical judgment, termination of the pregnancy in that manner

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would pose a greater risk either of the death of the pregnant woman or of the substantial and

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irreversible physical impairment of a major bodily function, not including psychological or

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emotional conditions, of the woman than would other available methods. No greater risk may be

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determined to exist if it is based on a claim or diagnosis that the woman will engage in conduct

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which she intends to result in her death or in substantial and irreversible physical impairment of a

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major bodily function.

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     23-95-5. Reporting.

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     (a) Any physician who performs or induces, or attempts to perform or induce, an abortion

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shall report to the department, on a schedule and in accordance with forms and regulations adopted

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and promulgated by the department, that include:

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     (1) Post-fertilization age:

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     (i) If a determination of probable post-fertilization age was made, whether ultrasound was

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employed in making the determination, and the week of probable post-fertilization age determined;

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     (ii) If a determination of probable post-fertilization age was not made, the basis of the

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determination that a medical emergency existed.

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     (2) Method of abortion, which of the following was employed:

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     (i) Medication abortion (such as, but not limited to, mifepristone/misoprostol or

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methotrexate/misoprostol);

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     (ii) Manual vacuum aspiration;

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     (iii) Electrical vacuum aspiration;

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     (iv) Dilation and evacuation;

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     (v) Combined induction abortion and dilation and evacuation;

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     (vi) Induction abortion with prostaglandins;

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     (vii) Induction abortion with intra-amniotic instillation (such as, but not limited to, saline

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or urea);

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     (viii) Induction abortion, other means;

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     (ix) Intact dilation and extraction (partial-birth); or

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     (x) Method not listed (specify).

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     (3) Whether an intra-fetal injection was used in an attempt to induce fetal demise (such as,

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but not limited to, intra-fetal potassium chloride or digoxin).

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     (4) Age and race of the patient.

 

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     (5) If the unborn child was deemed capable of experiencing pain under § 23-95-4(b), the

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basis of the determination that the pregnant woman had a condition which so complicated her

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medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert

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serious risk of substantial and irreversible physical impairment of a major bodily function, not

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including psychological or emotional conditions.

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     (6) If the unborn child was deemed capable of experiencing pain under § 23-95-4(b),

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whether or not the method of abortion used was one that, in reasonable medical judgment, provided

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the best opportunity for the unborn child to survive and, if such a method was not used, the basis

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of the determination that termination of the pregnancy in that manner would pose a greater risk

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either of the death of the pregnant woman or of the substantial and irreversible physical impairment

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of a major bodily function, not including psychological or emotional conditions, of the woman than

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would other available methods.

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     (b) Reports required by subsection (a) of this section shall not contain the name or the

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address of the patient whose pregnancy was terminated, nor shall the report contain any other

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information identifying the patient, except that each report shall contain a unique medical record

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identifying number, to enable matching the report to the patient's medical records. These reports

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shall be maintained in strict confidence by the department, shall not be available for public

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inspection, and shall not be made available except:

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     (1) To the office of attorney general pursuant to a criminal investigation;

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     (2) To the office of attorney general pursuant to a civil investigation of the grounds for an

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action under § 23-95-7; or

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     (3) Pursuant to court order in an action under § 23-95-7.

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     (c) By June 30 of each year the department shall issue a public report providing statistics

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for the previous calendar year compiled from all of the reports covering that year submitted in

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accordance with this section for each of the items listed in subsection (a) of this section. Each report

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shall also provide the statistics for all previous calendar years during which this section was in

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effect, adjusted to reflect any additional information from late or corrected reports. The department

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shall take care to ensure that none of the information included in the public reports could reasonably

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lead to the identification of any pregnant woman upon whom an abortion was performed, induced,

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or attempted.

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     (d) Any physician who fails to submit a report by the end of thirty (30) days following the

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due date established by regulation shall be subject to a late fee of one thousand dollars ($1,000) for

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each additional thirty (30) day period or portion of a thirty (30) day period the report is overdue.

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Any physician required to report in accordance with this act who has not submitted a report, or has

 

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submitted only an incomplete report, more than six (6) months following the due date, may, in an

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action brought by the department, be directed by a court of competent jurisdiction to submit a

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complete report within a period stated by court order or be subject to civil contempt. Intentional or

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reckless failure by any physician to conform to any requirement of this section, other than late filing

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of a report, constitutes "unprofessional conduct". Intentional or reckless failure by any physician to

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submit a complete report in accordance with a court order constitutes "unprofessional conduct”.

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Intentional or reckless falsification of any report required under this section shall be punishable as

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a misdemeanor.

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     (e) Within ninety (90) days of the effective date of this chapter, the department shall adopt

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and promulgate forms and regulations to assist in compliance with this section. Subsection (a) of

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this section shall take effect so as to require reports regarding all abortions performed or induced

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on and after the first day of the first calendar month following the effective date of the rules.

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     23-95-6. Penalties.

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     Any person who intentionally or recklessly performs or induces, or attempts to perform or

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induce an abortion in violation of this chapter shall be guilty of a felony. No penalty may be

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assessed against the woman upon whom the abortion is performed or induced, or attempted to be

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performed or induced.

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     23-95-7. Civil remedies.

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     (a) Any woman upon whom an abortion has been performed or induced in violation of this

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chapter, or the father of the unborn child who was the subject of such an abortion, may maintain an

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action against the person who performed or induced the abortion in intentional or reckless violation

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of this chapter for actual and punitive damages. Any woman upon whom an abortion has been

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attempted in violation of this chapter may maintain an action against the person who attempted to

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perform or induce the abortion in an intentional or reckless violation of this chapter for actual and

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punitive damages. No damages may be awarded a plaintiff if the pregnancy resulted from the

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plaintiff's criminal conduct.

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     (b) A cause of action for injunctive relief against any person who has intentionally or

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recklessly violated this chapter may be maintained:

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      (1) By the woman upon whom an abortion was performed or induced, or attempted to be

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performed or induced in violation of this chapter;

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     (2) If the woman had not attained the age of eighteen (18) years at the time of the abortion,

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or has died as a result of the abortion, the parent or guardian of the pregnant woman;

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     (3) By a prosecuting attorney with appropriate jurisdiction; or

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     (4) By the office of attorney general.

 

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     The injunction shall prevent the abortion provider from performing or inducing, or

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attempting to perform or induce further abortions in violation of this chapter. A cause of action

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may not be maintained by a plaintiff if the pregnancy resulted from the plaintiff's criminal conduct.

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     (c) If judgment is rendered in favor of the plaintiff in an action described in this section,

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the court shall render judgment for a reasonable attorneys' fee in favor of the plaintiff against the

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defendant.

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     (d) If judgment is rendered in favor of the defendant and the court finds that the plaintiff's

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suit was frivolous and brought in bad faith, the court shall render judgment for a reasonable

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attorneys' fee in favor of the defendant against the plaintiff.

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     (e) No damages or attorneys' fee may be assessed against the woman upon whom an

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abortion was performed or induced, or attempted to be performed or induced, except in accordance

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with subsection (d) of this section.

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     23-95-8. Protection of privacy in court proceedings.

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     In every civil or criminal proceeding, or any action brought under this chapter, the court

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shall rule whether the anonymity of any woman upon whom an abortion has been performed or

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induced, or attempted to be performed or induced shall be preserved from public disclosure if she

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does not give her consent to the disclosure. The court, upon motion, or sua sponte, shall make a

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ruling and, upon determining that her anonymity should be preserved, shall issue orders to the

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parties, witnesses, and counsel, and shall direct the sealing of the record and exclusion of

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individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity

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from public disclosure. Each order shall be accompanied by specific written findings explaining

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why the anonymity of the woman should be preserved from public disclosure, why the order is

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essential to that end, how the order is narrowly tailored to serve that interest, and why no reasonable

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less restrictive alternative exists. In the absence of written consent of the woman upon whom an

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abortion has been performed or induced, or attempted to be performed or induced, anyone, other

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than a public official, who brings an action under §§ 23-95-7(a) or 23-95-7(b), shall do so under a

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pseudonym. This section shall not be construed to conceal the identity of the plaintiff or of

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witnesses from the defendant or from attorneys for the defendant.

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     23-95-9. Litigation defense fund.

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     (a) There is created a restricted revenue account to be known as the “Rhode Island Pain-

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Capable Unborn Child Protection Litigation Fund”. The fund shall be maintained by the general

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treasurer for the purpose of providing funds to pay for any costs and expenses incurred by

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individuals relating to actions surrounding the defense of this law.

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     (b) The fund shall consist of:

 

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     (1) Appropriations made to the account by the general assembly; and

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     (2) Any donations, gifts, or grants received by the account.

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     (c) The fund shall retain the interest income derived from the monies credited to the fund.

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     23-95-10. Construction.

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     (a) This chapter shall not be construed to repeal, by implication or otherwise, any

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applicable law, rule or regulation, regulating or restricting abortion.

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     (b) If any provisions or provisions of this chapter, or the application of this chapter to any

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person or circumstance is held invalid by a court of competent authority, that invalidity does not

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affect other provisions or applications of this chapter which can be given effect without that invalid

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provision or provisions or application of the provision or provisions, and to this end the provisions

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of this chapter are declared to be separable and severable.

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     SECTION 2. This act shall take effect on January 1, 2022.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY -- RHODE ISLAND PAIN-CAPABLE UNBORN

CHILD PROTECTION ACT

***

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     This act would create the Rhode Island Pain-Capable Unborn Child Protection Act,

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prohibiting the performance or induction of an abortion of an unborn child capable of feeling pain,

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unless necessary to prevent serious health risk to the unborn child’s mother.

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     This act would take effect on January 1, 2022.

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