2021 -- H 5865 | |
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LC001508 | |
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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 | |
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Introduced By: Representatives Place, Quattrocchi, Chippendale, and Nardone | |
Date Introduced: February 24, 2021 | |
Referred To: House Judiciary | |
It is enacted by the General Assembly as follows: | |
1 | SECTION 1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby |
2 | amended by adding thereto the following chapter: |
3 | CHAPTER 95 |
4 | RHODE ISLAND PAIN-CAPABLE UNBORN CHILD PROTECTION ACT |
5 | 23-95-1. Short title. |
6 | This chapter shall be known and may be cited as the “Rhode Island Pain-Capable Unborn |
7 | Child Protection Act”. |
8 | 23-95-2. Legislative findings. |
9 | The general assembly makes the following findings: |
10 | (1) Pain receptors (nociceptors) are present throughout the unborn child's entire body no |
11 | later than sixteen (16) weeks after fertilization and nerves link these receptors to the brain's |
12 | thalamus and subcortical plate by no later than twenty (20) weeks. |
13 | (2) By eight (8) weeks after fertilization, the unborn child reacts to touch. After twenty (20) |
14 | weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult |
15 | human, for example, by recoiling. |
16 | (3) In the unborn child, application of such painful stimuli is associated with significant |
17 | increases in stress hormones known as the stress response. |
18 | (4) Subjection to such painful stimuli is associated with long-term harmful |
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1 | neurodevelopmental effects, such as altered pain sensitivity and, possibly, emotional, behavioral |
2 | and learning disabilities later in life. |
3 | (5) For the purposes of surgery on unborn children, fetal anesthesia is routinely |
4 | administered and is associated with a decrease in stress hormones compared to their level when |
5 | painful stimuli are applied without the anesthesia. |
6 | (6) The position, asserted by some medical experts, that the unborn child is incapable of |
7 | experiencing pain until a point later in pregnancy than twenty (20) weeks after fertilization |
8 | predominately rests on the assumption that the ability to experience pain depends on the cerebral |
9 | cortex and requires nerve collections between the thalamus and the cortex. However, recent medical |
10 | research and analysis, especially since 2007, provides strong evidence for the conclusion that a |
11 | functioning cortex is not necessary to experience pain. |
12 | (7) Substantial evidence indicates that children born missing the bulk of the cerebral cortex, |
13 | those with hydranencephaly, nevertheless experience pain. |
14 | (8) In adults, stimulation or ablation of the cerebral cortex does not alter pain perception, |
15 | while stimulation or ablation of the thalamus does. |
16 | (9) Substantial evidence indicates that structures used for pain processing in early |
17 | development differ from those of adults, using different neural elements available at specific times |
18 | during development, such as the subcortical plate, to fulfill the role of pain processing. |
19 | (10) The position, asserted by some medical experts, that the unborn child remains in a |
20 | coma-like sleep state that precludes the unborn child experiencing pain is inconsistent with the |
21 | documented reaction of unborn children to painful stimuli and with the experience of fetal surgeons |
22 | who have found it necessary to sedate the unborn child with anesthesia to prevent the unborn child |
23 | from thrashing about in reaction to invasive surgery. |
24 | (11) Consequently, there is substantial medical evidence that an unborn child is capable of |
25 | experiencing pain by twenty (20) weeks after fertilization. The general asssembly has the |
26 | constitutional authority to make this judgment. As the United States Supreme Court has noted in |
27 | Gonzales v. Carhart, 550 U.S. 124, 162-64 (2007), "[t]he Court has given state and federal |
28 | legislatures wide discretion to pass legislation in areas where there is medical and scientific |
29 | uncertainty.”; see Marshall v. United States, 414 U.S. 417, 427 (1974) (When Congress undertakes |
30 | to act in areas fraught with medical and scientific uncertainties, legislative options must be |
31 | especially broad.). The law need not give abortion doctors unfettered choice in the course of their |
32 | medical practice, nor should it elevate their status above other physicians in the medical |
33 | community. Medical uncertainly does not foreclose the exercise of legislative power in the abortion |
34 | context any more than it does in other contexts. |
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1 | (12) It is the purpose of the state to assert a compelling state interest in protecting the lives |
2 | of unborn children from the stage at which substantial medical evidence indicates that they are |
3 | capable of feeling pain. |
4 | (13) In enacting this legislation the state of Rhode Island is not asking the Supreme Court |
5 | to overturn or replace its holding, first articulated in Roe v. Wade, and reaffirmed in Planned |
6 | Parenthood of Southeastern Pennsylvania v. Casey, that the state interest in unborn human life, |
7 | which is "legitimate" throughout pregnancy, becomes "compelling" at viability. Rather, it asserts a |
8 | separate and independent compelling state interest in unborn human life that exists once the unborn |
9 | child is capable of feeling pain, which is asserted not in replacement of, but in addition to the state's |
10 | compelling state interest in protecting the lives of unborn children from the stage of viability. |
11 | (14) The United States Supreme Court has established that the "constitutional liberty of the |
12 | woman to have some freedom to terminate her pregnancy ... is not so unlimited . . . that from the |
13 | outset the State cannot show its concern for the life of the unborn, and at a later point in fetal |
14 | development the state's interest in life has sufficient force so that the right of the woman to terminate |
15 | the pregnancy can be restricted." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 |
16 | U.S. 833, 869 (1992). |
17 | (15) The Supreme Court decision upholding the Partial-Birth Abortion Ban Act, Gonzales |
18 | v. Carhart, 550 U.S. 124 (2007) vindicated the dissenting opinion in the earlier decision that had |
19 | struck down Nebraska's Partial-Birth Abortion Ban Act. That opinion stated, "[In Casey] We held |
20 | it was inappropriate for the Judicial Branch to provide an exhaustive list of state interests implicated |
21 | by abortion.” Casey is premised on the states having an important constitutional role in defining |
22 | their interests in the abortion debate. It is only with this principle in mind that [a state's] interests |
23 | can be given proper weight. States also have an interest in forbidding medical procedures which, |
24 | in the state's reasonable determination, might cause the medical profession or society as a whole to |
25 | become insensitive, even disdainful, to life, including life in the human fetus. A state may take |
26 | measures to ensure the medical profession and its members are viewed as healers, sustained by a |
27 | compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life |
28 | which cannot survive without the assistance of others." Stenberg v. Carhart, 350 U.S. 914, 958-59 |
29 | (2000)(Kennedy, J., dissenting). |
30 | (16) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in the context of |
31 | determining the severability of a state statute regulating abortion, the United States Supreme Court |
32 | noted that an explicit statement of legislative intent specifically made applicable to a particular |
33 | statute is of greater weight than a general savings or severability clause, it is the intent of the state |
34 | that if any one or more provisions, sections, subsections, sentences, clauses, phrases or words of |
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1 | this chapter or the application thereof to any person or circumstance is found to be unconstitutional, |
2 | the same is hereby declared to be severable and the balance of this act shall remain effective |
3 | notwithstanding such unconstitutionality. Moreover, the state declares that it would have passed |
4 | this chapter, and each provision, section, subsection, sentence, clause, phrase or word thereof, |
5 | irrespective of the fact that any one or more provisions, sections, subsections, sentences, clauses, |
6 | phrases or words, or any of their applications, were to be declared unconstitutional. |
7 | 23-95-3. Definitions. |
8 | For purposes of this chapter: |
9 | (1) "Abortion" means the use or prescription of any instrument, medicine, drug, or any |
10 | other substance or device to: |
11 | (i) Intentionally kill the unborn child of a woman known to be pregnant; or |
12 | (ii) Intentionally terminate the pregnancy of a woman known to be pregnant, with an |
13 | intention other than: |
14 | (A) After viability to produce a live birth and preserve the life and health of the child born |
15 | alive; or |
16 | (B) To remove a dead unborn child. |
17 | (2) "Attempt to perform or induce an abortion" means an act, or an omission of a statutorily |
18 | required act, that, under the circumstances as the actor believes them to be, constitutes a substantial |
19 | step in a course of conduct planned to culminate in the performance or induction of an abortion in |
20 | this state in violation of this chapter. |
21 | (3) "Department" means the department of health. |
22 | (4) "Fertilization" means the fusion of a human spermatozoon with a human ovum. |
23 | (5) "Medical emergency" means a condition that, in reasonable medical judgment, so |
24 | complicates the medical condition of the pregnant woman that it necessitates the immediate |
25 | abortion of her pregnancy without first determining post-fertilization age to avert her death, or for |
26 | which the delay necessary to determine post-fertilization age will create serious risk of substantial |
27 | and irreversible physical impairment of a major bodily function, not including psychological or |
28 | emotional conditions. No condition may be deemed a medical emergency if based on a claim or |
29 | diagnosis that the woman will engage in conduct which she intends to result in her death or in |
30 | substantial and irreversible physical impairment of a major bodily function. |
31 | (6) "Physician" means any person licensed to practice medicine and surgery, or osteopathic |
32 | medicine and surgery in this state. |
33 | (7) "Post-fertilization age" means the age of the unborn child as calculated from the fusion |
34 | of a human spermatozoon with a human ovum. |
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1 | (8) "Probable post-fertilization age of the unborn child" means what, in reasonable medical |
2 | judgment, will with reasonable probability be the post-fertilization age of the unborn child at the |
3 | time the abortion is planned to be performed or induced. |
4 | (9) "Reasonable medical judgment" means a medical judgment that would be made by a |
5 | reasonably prudent physician, knowledgeable about the case and the treatment possibilities with |
6 | respect to the medical conditions involved. |
7 | (10) "Serious health risk to the unborn child's mother" means that in reasonable medical |
8 | judgment she has a condition that so complicates her medical condition that it necessitates the |
9 | abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible |
10 | physical impairment of a major bodily function, not including psychological or emotional |
11 | conditions. No greater risk may be determined to exist if it is based on a claim or diagnosis that the |
12 | woman will engage in conduct which she intends to result in her death or in substantial and |
13 | irreversible physical impairment of a major bodily function. |
14 | (11) "Unborn child" or "fetus" each mean an individual organism of the species homo |
15 | sapiens from fertilization until live birth. |
16 | (12) "Woman" means a female human being, whether or not she has reached the age of |
17 | majority. |
18 | 23-95-4. Protection of unborn child capable of feeling pain from abortion. |
19 | (a) No person may perform or induce, or attempt to perform or induce, an abortion of an |
20 | unborn child capable of feeling pain, unless necessary to prevent serious health risk to the unborn |
21 | child's mother. |
22 | (b) An unborn child shall be deemed capable of feeling pain when it has been determined, |
23 | by the physician performing or inducing, or attempting to perform or induce the abortion, or by |
24 | another physician upon whose determination that physician relies, that the probable post |
25 | fertilization age of the woman's unborn child is twenty (20) or more weeks. |
26 | (c) Except in the case of a medical emergency, no abortion may be performed or induced, |
27 | or be attempted to be performed or induced, unless the physician performing or inducing it has first |
28 | made a determination of the probable post fertilization age of the unborn child or relied upon such |
29 | a determination made by another physician. In making this determination, the physician shall make |
30 | such inquiries of the woman and perform or cause to be performed such medical examinations and |
31 | tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions |
32 | involved, would consider necessary to perform in making an accurate diagnosis with respect to post |
33 | fertilization age. |
34 | (d) When an abortion of an unborn child capable of feeling pain is necessary to prevent |
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1 | serious health risk to the unborn child's mother, the physician shall terminate the pregnancy in the |
2 | manner which, in reasonable medical judgment, provides the best opportunity for the unborn child |
3 | to survive, unless, in reasonable medical judgment, termination of the pregnancy in that manner |
4 | would pose a greater risk either of the death of the pregnant woman or of the substantial and |
5 | irreversible physical impairment of a major bodily function, not including psychological or |
6 | emotional conditions, of the woman than would other available methods. No greater risk may be |
7 | determined to exist if it is based on a claim or diagnosis that the woman will engage in conduct |
8 | which she intends to result in her death or in substantial and irreversible physical impairment of a |
9 | major bodily function. |
10 | 23-95-5. Reporting. |
11 | (a) Any physician who performs or induces, or attempts to perform or induce, an abortion |
12 | shall report to the department, on a schedule and in accordance with forms and regulations adopted |
13 | and promulgated by the department, that include: |
14 | (1) Post-fertilization age: |
15 | (i) If a determination of probable post-fertilization age was made, whether ultrasound was |
16 | employed in making the determination, and the week of probable post-fertilization age determined; |
17 | (ii) If a determination of probable post-fertilization age was not made, the basis of the |
18 | determination that a medical emergency existed. |
19 | (2) Method of abortion, which of the following was employed: |
20 | (i) Medication abortion (such as, but not limited to, mifepristone/misoprostol or |
21 | methotrexate/misoprostol); |
22 | (ii) Manual vacuum aspiration; |
23 | (iii) Electrical vacuum aspiration; |
24 | (iv) Dilation and evacuation; |
25 | (v) Combined induction abortion and dilation and evacuation; |
26 | (vi) Induction abortion with prostaglandins; |
27 | (vii) Induction abortion with intra-amniotic instillation (such as, but not limited to, saline |
28 | or urea); |
29 | (viii) Induction abortion, other means; |
30 | (ix) Intact dilation and extraction (partial-birth); or |
31 | (x) Method not listed (specify). |
32 | (3) Whether an intra-fetal injection was used in an attempt to induce fetal demise (such as, |
33 | but not limited to, intra-fetal potassium chloride or digoxin). |
34 | (4) Age and race of the patient. |
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1 | (5) If the unborn child was deemed capable of experiencing pain under § 23-95-4(b), the |
2 | basis of the determination that the pregnant woman had a condition which so complicated her |
3 | medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert |
4 | serious risk of substantial and irreversible physical impairment of a major bodily function, not |
5 | including psychological or emotional conditions. |
6 | (6) If the unborn child was deemed capable of experiencing pain under § 23-95-4(b), |
7 | whether or not the method of abortion used was one that, in reasonable medical judgment, provided |
8 | the best opportunity for the unborn child to survive and, if such a method was not used, the basis |
9 | of the determination that termination of the pregnancy in that manner would pose a greater risk |
10 | either of the death of the pregnant woman or of the substantial and irreversible physical impairment |
11 | of a major bodily function, not including psychological or emotional conditions, of the woman than |
12 | would other available methods. |
13 | (b) Reports required by subsection (a) of this section shall not contain the name or the |
14 | address of the patient whose pregnancy was terminated, nor shall the report contain any other |
15 | information identifying the patient, except that each report shall contain a unique medical record |
16 | identifying number, to enable matching the report to the patient's medical records. These reports |
17 | shall be maintained in strict confidence by the department, shall not be available for public |
18 | inspection, and shall not be made available except: |
19 | (1) To the office of attorney general pursuant to a criminal investigation; |
20 | (2) To the office of attorney general pursuant to a civil investigation of the grounds for an |
21 | action under § 23-95-7; or |
22 | (3) Pursuant to court order in an action under § 23-95-7. |
23 | (c) By June 30 of each year the department shall issue a public report providing statistics |
24 | for the previous calendar year compiled from all of the reports covering that year submitted in |
25 | accordance with this section for each of the items listed in subsection (a) of this section. Each report |
26 | shall also provide the statistics for all previous calendar years during which this section was in |
27 | effect, adjusted to reflect any additional information from late or corrected reports. The department |
28 | shall take care to ensure that none of the information included in the public reports could reasonably |
29 | lead to the identification of any pregnant woman upon whom an abortion was performed, induced, |
30 | or attempted. |
31 | (d) Any physician who fails to submit a report by the end of thirty (30) days following the |
32 | due date established by regulation shall be subject to a late fee of one thousand dollars ($1,000) for |
33 | each additional thirty (30) day period or portion of a thirty (30) day period the report is overdue. |
34 | Any physician required to report in accordance with this act who has not submitted a report, or has |
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1 | submitted only an incomplete report, more than six (6) months following the due date, may, in an |
2 | action brought by the department, be directed by a court of competent jurisdiction to submit a |
3 | complete report within a period stated by court order or be subject to civil contempt. Intentional or |
4 | reckless failure by any physician to conform to any requirement of this section, other than late filing |
5 | of a report, constitutes "unprofessional conduct". Intentional or reckless failure by any physician to |
6 | submit a complete report in accordance with a court order constitutes "unprofessional conduct”. |
7 | Intentional or reckless falsification of any report required under this section shall be punishable as |
8 | a misdemeanor. |
9 | (e) Within ninety (90) days of the effective date of this chapter, the department shall adopt |
10 | and promulgate forms and regulations to assist in compliance with this section. Subsection (a) of |
11 | this section shall take effect so as to require reports regarding all abortions performed or induced |
12 | on and after the first day of the first calendar month following the effective date of the rules. |
13 | 23-95-6. Penalties. |
14 | Any person who intentionally or recklessly performs or induces, or attempts to perform or |
15 | induce an abortion in violation of this chapter shall be guilty of a felony. No penalty may be |
16 | assessed against the woman upon whom the abortion is performed or induced, or attempted to be |
17 | performed or induced. |
18 | 23-95-7. Civil remedies. |
19 | (a) Any woman upon whom an abortion has been performed or induced in violation of this |
20 | chapter, or the father of the unborn child who was the subject of such an abortion, may maintain an |
21 | action against the person who performed or induced the abortion in intentional or reckless violation |
22 | of this chapter for actual and punitive damages. Any woman upon whom an abortion has been |
23 | attempted in violation of this chapter may maintain an action against the person who attempted to |
24 | perform or induce the abortion in an intentional or reckless violation of this chapter for actual and |
25 | punitive damages. No damages may be awarded a plaintiff if the pregnancy resulted from the |
26 | plaintiff's criminal conduct. |
27 | (b) A cause of action for injunctive relief against any person who has intentionally or |
28 | recklessly violated this chapter may be maintained: |
29 | (1) By the woman upon whom an abortion was performed or induced, or attempted to be |
30 | performed or induced in violation of this chapter; |
31 | (2) If the woman had not attained the age of eighteen (18) years at the time of the abortion, |
32 | or has died as a result of the abortion, the parent or guardian of the pregnant woman; |
33 | (3) By a prosecuting attorney with appropriate jurisdiction; or |
34 | (4) By the office of attorney general. |
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1 | The injunction shall prevent the abortion provider from performing or inducing, or |
2 | attempting to perform or induce further abortions in violation of this chapter. A cause of action |
3 | may not be maintained by a plaintiff if the pregnancy resulted from the plaintiff's criminal conduct. |
4 | (c) If judgment is rendered in favor of the plaintiff in an action described in this section, |
5 | the court shall render judgment for a reasonable attorneys' fee in favor of the plaintiff against the |
6 | defendant. |
7 | (d) If judgment is rendered in favor of the defendant and the court finds that the plaintiff's |
8 | suit was frivolous and brought in bad faith, the court shall render judgment for a reasonable |
9 | attorneys' fee in favor of the defendant against the plaintiff. |
10 | (e) No damages or attorneys' fee may be assessed against the woman upon whom an |
11 | abortion was performed or induced, or attempted to be performed or induced, except in accordance |
12 | with subsection (d) of this section. |
13 | 23-95-8. Protection of privacy in court proceedings. |
14 | In every civil or criminal proceeding, or any action brought under this chapter, the court |
15 | shall rule whether the anonymity of any woman upon whom an abortion has been performed or |
16 | induced, or attempted to be performed or induced shall be preserved from public disclosure if she |
17 | does not give her consent to the disclosure. The court, upon motion, or sua sponte, shall make a |
18 | ruling and, upon determining that her anonymity should be preserved, shall issue orders to the |
19 | parties, witnesses, and counsel, and shall direct the sealing of the record and exclusion of |
20 | individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity |
21 | from public disclosure. Each order shall be accompanied by specific written findings explaining |
22 | why the anonymity of the woman should be preserved from public disclosure, why the order is |
23 | essential to that end, how the order is narrowly tailored to serve that interest, and why no reasonable |
24 | less restrictive alternative exists. In the absence of written consent of the woman upon whom an |
25 | abortion has been performed or induced, or attempted to be performed or induced, anyone, other |
26 | than a public official, who brings an action under §§ 23-95-7(a) or 23-95-7(b), shall do so under a |
27 | pseudonym. This section shall not be construed to conceal the identity of the plaintiff or of |
28 | witnesses from the defendant or from attorneys for the defendant. |
29 | 23-95-9. Litigation defense fund. |
30 | (a) There is created a restricted revenue account to be known as the “Rhode Island Pain- |
31 | Capable Unborn Child Protection Litigation Fund”. The fund shall be maintained by the general |
32 | treasurer for the purpose of providing funds to pay for any costs and expenses incurred by |
33 | individuals relating to actions surrounding the defense of this law. |
34 | (b) The fund shall consist of: |
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1 | (1) Appropriations made to the account by the general assembly; and |
2 | (2) Any donations, gifts, or grants received by the account. |
3 | (c) The fund shall retain the interest income derived from the monies credited to the fund. |
4 | 23-95-10. Construction. |
5 | (a) This chapter shall not be construed to repeal, by implication or otherwise, any |
6 | applicable law, rule or regulation, regulating or restricting abortion. |
7 | (b) If any provisions or provisions of this chapter, or the application of this chapter to any |
8 | person or circumstance is held invalid by a court of competent authority, that invalidity does not |
9 | affect other provisions or applications of this chapter which can be given effect without that invalid |
10 | provision or provisions or application of the provision or provisions, and to this end the provisions |
11 | of this chapter are declared to be separable and severable. |
12 | 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 | |
*** | |
1 | This act would create the Rhode Island Pain-Capable Unborn Child Protection Act, |
2 | prohibiting the performance or induction of an abortion of an unborn child capable of feeling pain, |
3 | unless necessary to prevent serious health risk to the unborn child’s mother. |
4 | This act would take effect on January 1, 2022. |
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