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:

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

amended by adding thereto the following chapter:

CHAPTER 95

RHODE ISLAND PAIN-CAPABLE UNBORN CHILD PROTECTION ACT

     23-95-1. Short title.

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

Child Protection Act”.

     23-95-2. Legislative findings.

     The general assembly makes the following findings:

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

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

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

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

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

human, for example, by recoiling.

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

increases in stress hormones known as the stress response.

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

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

and learning disabilities later in life.

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

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

painful stimuli are applied without the anesthesia.

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

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

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

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

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

functioning cortex is not necessary to experience pain.

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

those with hydranencephaly, nevertheless experience pain.

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

while stimulation or ablation of the thalamus does.

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

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

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

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

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

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

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

from thrashing about in reaction to invasive surgery.

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

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

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

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

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

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

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

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

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

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

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

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

capable of feeling pain.

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

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

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

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

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

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

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

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

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

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

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

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

U.S. 833, 869 (1992).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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,

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

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

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

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

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

     23-95-3. Definitions.

     For purposes of this chapter:

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

other substance or device to:

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

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

intention other than:

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

alive; or

      (B) To remove a dead unborn child.

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

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

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

this state in violation of this chapter.

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

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

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

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

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

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

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

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

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

substantial and irreversible physical impairment of a major bodily function.

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

medicine and surgery in this state.

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

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

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

time the abortion is planned to be performed or induced.

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

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

respect to the medical conditions involved.

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

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

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

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

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

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

irreversible physical impairment of a major bodily function.

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

sapiens from fertilization until live birth.

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

majority.

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

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

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

child's mother.

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

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

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

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

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

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

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

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

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

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

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

fertilization age.

     (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

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

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

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

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

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

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

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

major bodily function.

     23-95-5. Reporting.

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

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

and promulgated by the department, that include:

     (1) Post-fertilization age:

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

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

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

determination that a medical emergency existed.

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

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

methotrexate/misoprostol);

     (ii) Manual vacuum aspiration;

     (iii) Electrical vacuum aspiration;

     (iv) Dilation and evacuation;

     (v) Combined induction abortion and dilation and evacuation;

     (vi) Induction abortion with prostaglandins;

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

or urea);

     (viii) Induction abortion, other means;

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

     (x) Method not listed (specify).

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

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

     (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

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

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

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

including psychological or emotional conditions.

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

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

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

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

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

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

would other available methods.

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

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

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

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

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

inspection, and shall not be made available except:

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

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

action under § 23-95-7; or

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

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

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

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

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

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

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

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

or attempted.

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

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

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

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

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

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

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

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

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

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

a misdemeanor.

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

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

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

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

     23-95-6. Penalties.

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

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

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

performed or induced.

     23-95-7. Civil remedies.

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

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

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

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

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

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

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

plaintiff's criminal conduct.

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

recklessly violated this chapter may be maintained:

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

performed or induced in violation of this chapter;

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

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

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

     (4) By the office of attorney general.

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

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

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

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

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

defendant.

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

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

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

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

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

with subsection (d) of this section.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

witnesses from the defendant or from attorneys for the defendant.

     23-95-9. Litigation defense fund.

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

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

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

individuals relating to actions surrounding the defense of this law.

     (b) The fund shall consist of:

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

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

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

     23-95-10. Construction.

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

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

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

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

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

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

of this chapter are declared to be separable and severable.

     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

***

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

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

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

     This act would take effect on January 1, 2022.

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