SENATE BILL 222
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
William E. Sharer
AN ACT
RELATING TO ABORTION; ENACTING THE PAIN-CAPABLE UNBORN CHILD PROTECTION ACT; CREATING LIMITATIONS ON ABORTION; CREATING REPORTING REQUIREMENTS; PROVIDING CIVIL REMEDIES; PROVIDING CRIMINAL AND CIVIL PENALTIES; ESTABLISHING A LITIGATION FUND.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. SHORT TITLE.--This act may be cited as the "Pain-Capable Unborn Child Protection Act".
SECTION 2. DEFINITIONS.--For purposes of the Pain-Capable Unborn Child Protection Act:
A. "abortion" means the use or prescription of any instrument, medicine, drug or any other substance or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth or to remove a dead unborn child who died as the result of natural causes in utero, accidental trauma or a criminal assault on the pregnant woman or her unborn child, and that causes the premature termination of the pregnancy;
B. "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 the Pain-Capable Unborn Child Protection Act;
C. "post-fertilization age" means the age of the unborn child as calculated from the fertilization of the human ovum;
D. "fertilization" means the fusion of a human spermatozoon with a human ovum;
E. "medical emergency" means a condition that, in reasonable medical judgment, so complicates the medical condition of the pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function. No condition shall be deemed a medical emergency if the emergency is based on a claim or diagnosis that the woman will engage in conduct that would result in her death or in substantial and irreversible physical impairment of a major bodily function;
F. "reasonable medical judgment" means a medical judgment that would be made by a reasonably prudent physician who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved;
G. "physician" means any person licensed to practice medicine and surgery or osteopathic medicine and surgery in this state;
H. "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;
I. "unborn child" means an individual organism of the species Homo sapiens from fertilization until live birth; and
J. "woman" means a female human being whether or not she has reached the age of majority.
SECTION 3. LEGISLATIVE FINDINGS.--The legislature makes the following findings:
A. pain receptors are present throughout the unborn child's entire body by no later than sixteen weeks after fertilization and nerves link these receptors to the brain's thalamus and subcortical plate by no later than twenty weeks;
B. by eight weeks after fertilization, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human, for example, by recoiling;
C. in the unborn child, application of such painful stimuli is associated with significant increases in stress hormones known as the stress response;
D. 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;
E. 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 is applied without such anesthesia;
F. the position, asserted by some medical experts, that the unborn child is incapable of experiencing pain until a point later in pregnancy than twenty weeks after fertilization predominately rests on the assumption that the ability to experience pain depends on the cerebral cortex and requires nerve connections 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;
G. substantial evidence indicates that children born missing the bulk of the cerebral cortex, those with hydranencephaly, nevertheless experience pain;
H. in adults, stimulation or ablation of the cerebral cortex does not alter pain perception, while stimulation or ablation of the thalamus does alter pain perception;
I. substantial evidence indicates that structures used for pain processing in the early development of an unborn child 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;
J. consequently, there is substantial medical evidence that an unborn child is capable of experiencing pain by twenty weeks after fertilization; and
K. 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.
SECTION 4. DETERMINATION OF GESTATIONAL AGE.--
A. Except in the case of a medical emergency that prevents compliance with this section, no abortion shall 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 such a 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 who is 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.
B. Failure by any physician to conform to any requirement of this section constitutes "unprofessional conduct".
SECTION 5. ABORTION OF UNBORN CHILD OF TWENTY OR MORE WEEKS GESTATIONAL AGE PROHIBITED.--
A. No person shall perform or induce or attempt to perform or induce an abortion upon a woman 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 or more weeks, unless, in reasonable medical judgment, she has a condition that so complicates her medical condition as to necessitate the termination of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function. No such condition shall be deemed to exist if it is based on a claim or diagnosis that the woman will engage in conduct that would result in her death or in substantial and irreversible physical impairment of a major bodily function.
B. When an abortion upon a woman whose unborn child has been determined to have a probable post-fertilization age of twenty or more weeks is not prohibited by this section, the physician shall terminate the pregnancy in the manner that, 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 of the woman than would other available methods. No such greater risk shall be deemed to exist if it is based on a claim or diagnosis that the woman will engage in conduct that would result in her death or in substantial and irreversible physical impairment of a major bodily function.
SECTION 6. REPORTING.--
A. Any physician who performs or induces or attempts to perform or induce an abortion shall report to the department of health on a schedule and in accordance with forms and rules adopted and promulgated by the department that include:
(1) if a determination of probable post-fertilization age was made, the probable post-fertilization age determined and the method and basis of the determination;
(2) if a determination of probable post-fertilization age was not made, the basis of the determination that a medical emergency existed;
(3) if the probable post-fertilization age was determined to be twenty or more weeks, the basis of the determination that the pregnant woman had a condition which so complicated her medical condition as to necessitate the termination of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function; and
(4) the method used for the abortion and, in the case of an abortion performed when the probable post-fertilization age was determined to be twenty or more weeks:
(a) whether the method used was one that, in reasonable medical judgment, provided the best opportunity for the unborn child to survive; or
(b) 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 of the woman than would other available methods.
B. By June 30 of each year the department of health 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 such 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 woman upon whom an abortion was performed.
C. Any physician who fails to submit a report by the end of thirty days following the due date shall be subject to a late fee of five hundred dollars ($500) for each additional thirty-day period or portion of a thirty-day period that the report is overdue. Any physician required to report in accordance with the Pain-Capable Unborn Child Protection Act who has not submitted a report or has submitted only an incomplete report more than one year following the due date may, in an action brought in the manner in which actions are brought by the department of health, 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. Failure by any physician to conform to any requirement of this section, other than late filing of a report, constitutes "unprofessional conduct" pursuant to the licensing act governing that physician. Failure by any physician to submit a complete report in accordance with a court order constitutes "unprofessional conduct" pursuant to the licensing act governing that physician. Intentional or reckless falsification of any report required under this section is a petty misdemeanor.
D. Within ninety days of the operative date of this act, the department of health shall adopt and promulgate rules to assist in compliance with this section.
SECTION 7. CRIMINAL PENALTIES.--Any person who intentionally or recklessly performs or induces or attempts to perform or induce an abortion in violation of this act shall be guilty of a third degree felony. No penalty may be assessed against the woman upon whom the abortion is performed or induced or attempted to be performed or induced.
SECTION 8. CIVIL REMEDIES.--
A. Any woman upon whom an abortion has been performed in violation of the Pain-Capable Unborn Child Protection Act, 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 the Pain-Capable Unborn Child Protection Act for actual and punitive damages. Any woman upon whom an abortion has been attempted in violation of the Pain-Capable Unborn Child Protection Act may maintain an action against the person who attempted to perform or induce the abortion in an intentional or reckless violation of the Pain-Capable Unborn Child Protection Act for actual and punitive damages.
B. A cause of action for injunctive relief against any person who has intentionally violated the Pain-Capable Unborn Child Protection Act may be maintained by the woman upon whom an abortion was performed or induced or attempted to be performed or induced in violation of the Pain-Capable Unborn Child Protection Act; by any person who is the spouse, parent, sibling or guardian of, or a current or former licensed health care provider of, the woman upon whom an abortion has been performed or induced or attempted to be performed or induced in violation of the Pain-Capable Unborn Child Protection Act; by a district attorney with appropriate jurisdiction; or by the attorney general. The injunction shall prevent the abortion provider from performing or inducing further abortions in violation of the Pain-Capable Unborn Child Protection Act in this state.
C. If judgment is rendered in favor of the plaintiff in an action described in this section, the court shall also render judgment for a reasonable attorney 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 also render judgment for a reasonable attorney fee in favor of the defendant against the plaintiff.
E. No damages or attorney fees may be assessed against the woman upon whom an abortion was performed or attempted to be performed except in accordance with Subsection D of this section.
SECTION 9. LITIGATION DEFENSE FUND.--
A. There is created a special revenue fund known as the "Pain-Capable Unborn Child Protection Act litigation fund" for the purpose of providing funds to pay for any costs and expenses incurred by the attorney general in relation to actions surrounding defense of this law.
B. The fund shall be maintained by the attorney general.
C. The litigation fund shall consist of:
(1) appropriations made to the account by the legislature; and
(2) any donations, gifts or grants made to the account.
D. Any expenses advanced by the attorney general in any of the actions under Subsection A of this section shall be credited to the litigation fund.
E. The litigation fund shall retain the interest income derived from the money credited to the fund.
SECTION 10. PROTECTION OF PRIVACY IN COURT PROCEEDINGS.--In every civil or criminal proceeding or action brought under the Pain-Capable Unborn Child Protection Act, 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 such disclosure. The court, upon motion or sua sponte, shall make such 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 such 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 Subsection A of Section 8 of the Pain-Capable Unborn Child Protection Act shall do so under a pseudonym. This section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant or from attorneys for the defendant.
SECTION 11. SEVERABILITY.--If any one or more provisions, sections, subsections, sentences, clauses, phrases or words of the Pain-Capable Unborn Child Protection Act 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 the Pain-Capable Unborn Child Protection Act shall remain effective notwithstanding such unconstitutionality. The legislature hereby declares that it would have passed the Pain-Capable Unborn Child Protection Act, and that 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 of the Pain-Capable Unborn Child Protection Act, or the application of the Pain-Capable Unborn Child Protection Act, would be declared unconstitutional.
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