2013 -- S 0623

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LC01193

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO HEALTH AND SAFETY - PARTIAL - BIRTH ABORTION

     Introduced By: Senator Maryellen Goodwin

     Date Introduced: March 06, 2013

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Chapter 23-4.12 of the General Laws entitled "Partial-Birth Abortion" is

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hereby repealed in its entirety.

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     CHAPTER 23-4.12

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Partial Birth Abortion

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     23-4.12-1. Definitions. -- (a) For purposes of this chapter, "partial birth abortion" means

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an abortion in which the person performing the abortion vaginally delivers a living human fetus

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before killing the infant and completing the delivery.

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      (b) For purposes of this chapter, the terms "fetus" and "infant" are used interchangeably

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to refer to the biological offspring of human parents.

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      (c) As used in this section, "vaginally delivers a living fetus before killing the infant"

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means deliberately and intentionally delivers into the vagina a living fetus, or a substantial

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portion of the fetus, for the purpose of performing a procedure the person performing the abortion

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knows will kill the infant, and kills the infant.

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     23-4.12-2. Prohibition of partial birth abortions. -- No person shall knowingly perform

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a partial birth abortion.

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     23-4.12-3. Life of the mother exception. -- Section 23-4.12-2 shall not apply to a partial

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birth abortion that is necessary to save the life of a mother because her life is endangered by a

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physical disorder, physical illness, or physical injury, including a life-endangering condition

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caused by or arising from the pregnancy itself; provided, that no other medical procedure would

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suffice for that purpose.

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     23-4.12-4. Civil remedies. -- (a) The woman upon whom a partial birth abortion has

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been performed in violation of section 23-4.12-2, the father of the fetus or infant, and the

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maternal grandparents of the fetus or infant, and the maternal grandparents of the fetus or infant if

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the mother has not attained the age of eighteen (18) years at the time of the abortion, may obtain

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appropriate relief in a civil action, unless the pregnancy resulted from the plaintiff's criminal

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conduct or the plaintiff consented to the abortion.

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      (b) The relief shall include:

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      (1) Money damages for all injuries, psychological and physical, occasioned by the

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violation of this chapter; and

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      (2) Statutory damages equal to three (3) times the cost of the partial birth abortion.

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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 also render judgment for a reasonable attorney's fee in favor of the plaintiff against

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the defendant. If the judgment is rendered in favor of the defendant and the court finds that the

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plaintiff's suit was frivolous and brought in bad faith, the court shall also render judgment for a

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reasonable attorney's fee in favor of the defendant against the plaintiff.

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     23-4.12-5. Penalty. -- (a) Performance of a partial birth abortion deliberately and

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intentionally is a violation of this chapter and shall be a felony.

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      (b) A woman upon whom a partial birth abortion is performed may not be prosecuted

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under this chapter for violating this chapter or any provision this chapter, or for conspiracy to

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violate this chapter or any provision this chapter.

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     23-4.12-6. Severability. -- (a) If any one or more provisions, clauses, phrases, or words

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of section 23-4.12-3 or the application of that section to any person or circumstance is found to be

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unconstitutional, it is declared to be inseverable.

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      (b) If any one or more provisions, sections, subsections, sentences, clauses, phrases or

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words of the remaining sections or the application of them to any person or circumstance is found

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to be unconstitutional, they are declared to be severable and the balance of the chapter shall

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remain effective notwithstanding the unconstitutionality. The legislature declares that it would

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have passed this chapter, and each provision, section, subsection, sentence, clause, phrase, or

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words, with the exception of section 23-4.12-3, irrespective of the fact that any one or more

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provisions, sections, subsections, sentences, clauses, phrases, or words be declared

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unconstitutional.

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     SECTION 2. 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 4.13

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PARTIAL - BIRTH ABORTION

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     23-4.13-1. Definitions. -- (a) For purposes of this chapter, "partial-birth abortion" means

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an abortion in which the person performing the abortion: (1) Deliberately and intentionally

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vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head

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is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk

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past the navel is outside the body of the mother, for the purpose of performing an overt act that

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the person knows will kill the partially delivered living fetus; and

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     (2) Performs the overt act, other than completion of delivery, that kills the partially

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delivered living fetus.

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     (b) "Physician" means a doctor of medicine or osteopathy legally authorized to practice

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medicine and surgery in the state, or any other individual legally authorized by the state to

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perform abortions: provided, however, that any individual who is not a physician or not otherwise

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legally authorized by the state to perform abortions, but who nevertheless directly performs a

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partial-birth abortion, shall be subject to the provisions of this chapter.

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     23-4.13-2. Prohibition of partial-birth abortions. -- Any physician who knowingly

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performs a partial-birth abortion and thereby kills a human fetus is guilty of a felony. A female

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upon whom a partial-birth abortion is performed may not be prosecuted under this chapter.

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     23-4.13-3. License suspension or revocation and fines. -- If the offender is a

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professionally licensed person, in addition to any other penalty imposed by law for the offense,

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the state board of medical licensure and discipline may assess a civil fine, after proper notice and

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an opportunity to be heard, against a licensee for unprofessional conduct in an amount not to

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exceed twenty-five thousand dollars ($25,000) for the first (1st) violation, fifty thousand dollars

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($50,000) for the second (2nd) violation and one hundred thousand dollars ($100,000) for the third

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(3rd) violation and for each subsequent violation an amount in excess of one hundred thousand

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dollars ($100,000) sufficient to deter future violations. Additionally his or her license shall be

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subject to suspension or revocation in accordance with procedures provided under chapter 37 of

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title 5. All fines assessed and collected under this subsection shall be remitted to the state

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treasurer. Upon receipt of each such remittance, the state treasurer shall deposit the entire amount

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in the state treasury to the credit of the state general fund.

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     23-4.13-4. Affirmative defense. -- In any proceeding pursuant to this chapter relating to

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the performance of a partial-birth abortion, it is an affirmative defense that the defendant

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performed the partial-birth abortion if it was necessary to save the life of a mother whose life is

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endangered by a physical disorder, physical illness, or physical injury, including a life-

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endangering physical condition caused by or arising from the pregnancy itself.

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     23-4.13-5. Review by state medical board. -- (a) A defendant accused of an offense

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under this chapter may seek a hearing before the state board of medical licensure and discipline

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on whether the physician's conduct was necessary to save the life of the mother whose life was

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endangered by a physical disorder, physical illness, or physical injury, including a life-

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endangering physical condition caused by or arising from the pregnancy itself.

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     (b) The finding on that issue are admissible on that issue at the trial of the defendant.

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Upon a motion of the defendant, the court shall delay the beginning of the trial for not more than

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thirty (30) days to permit such a hearing to take place.

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     23-4.13-6. Civil remedies. -- (a) The woman upon whom a partial-birth abortion has

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been performed, the parent of a minor upon whom a partial-birth abortion has been performed,

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and the father of the unborn child subject to a partial-birth abortion that has been performed,

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unless the pregnancy resulted from the plaintiff's criminal conduct, may, in a civil action, obtain

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appropriate relief from the person who performed the partial-birth abortion unlawfully under this

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chapter with knowledge that it was such an abortion or with reckless disregard for whether it was

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such an abortion.

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     (b) Such relief shall include:

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     (1) Money damages for all injuries, psychological and physical, occasioned by the

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violation of this chapter; and

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     (2) Statutory damages equal to three (3) times the cost of the partial-birth abortion.

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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 also render judgment for a reasonable attorney's fee in favor of the plaintiff against

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the defendant.

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     (d) No person is estopped from recovery in such a suit on the ground that either the

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plaintiff or the person upon whom the partial-birth abortion was performed gave consent to the

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abortion. Any contract of indemnification for such damages is void.

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     (e) No damages or attorney's fees may be assessed against the female on whom a partial-

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birth abortion is performed.

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     23-4.13-7. Provision for anonymity of female. -- In every proceeding or action pursuant

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to this chapter, the court shall rule whether the anonymity of any female upon whom a partial-

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birth abortion is performed should be preserved from public disclosure if she does not give her

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consent to such disclosure. The court, upon motion or sua sponte, shall make such a ruling and,

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

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witnesses and counsel, and shall direct the sealing of the record and exclusion of individuals from

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

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disclosure. Each such order shall be accompanied by a specific written findings explaining why

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the anonymity of the female 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

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reasonable less restrictive alternative exists. In the absence of written consent of the female upon

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whom a partial-birth abortion has been performed, anyone, other than a public official, who

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brings an action under this section shall do so under a pseudonym. This section may not be

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construed to conceal the identity of the plaintiff or of witnesses from the defendant.

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     23-4.13-8. Construction. -- (a) Nothing in this chapter shall be construed as creating or

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recognizing a right to abortion.

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     (b) It is not the intention of this chapter to make lawful an abortion that is currently

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unlawful.

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     (c) The adoption of this chapter does not repeal or modify, by implication or otherwise,

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any provision of state law not expressly amended by this chapter.

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     23-4.13-9. Severability. -- If any provision of this chapter or the application thereof to

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any person or circumstance is held invalid, such invalidity does not affect the provisions for

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applications of this chapter which can be given effect without the invalid provision or application

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and to this end, the provisions of this chapter are declared to be severable.

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     SECTION 3. This act shall take effect upon passage.

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LC01193

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO HEALTH AND SAFETY - PARTIAL - BIRTH ABORTION

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     This act would repeal chapter 23-4.12 of the general laws entitled "Partial-Birth

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Abortion" in its entirety and results in place thereof with language that creates a prohibition of

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partial-birth abortions. This act would also make any physician who knowingly performs a

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partial-birth abortion guilty of a felony and imposes penalties and fines.

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     This act would take effect upon passage.

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LC01193

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