SENATE BILL 239
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
William E. Sharer
AN ACT
RELATING TO HEALTH CARE; AMENDING THE PARTIAL-BIRTH ABORTION ACT TO PROHIBIT CERTAIN LATE-TERM ABORTIONS; PROVIDING FOR CIVIL REMEDIES AND PENALTIES; REPEALING SECTION 30-5-3 NMSA 1978 (BEING LAWS 1969, CHAPTER 67, SECTION 3) RELATING TO CRIMINAL ABORTION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 30-5A-1 NMSA 1978 (being Laws 2000, Chapter 55, Section 1) is amended to read:
"30-5A-1. SHORT TITLE.--[This act] Chapter 30, Article 5A NMSA 1978 may be cited as the "Late-Term Abortion and Partial-Birth Abortion Ban Act"."
SECTION 2. Section 30-5A-2 NMSA 1978 (being Laws 2000, Chapter 55, Section 2) is amended to read:
"30-5A-2. DEFINITIONS.--As used in the Late-Term Abortion and Partial-Birth Abortion Ban Act:
A. "abortion" means the intentional termination of the pregnancy of a female by a person who knows the female is pregnant;
B. "fetus" means the biological offspring of human parents;
C. "late-term abortion" means an abortion performed after a physician has determined the fetus to be viable;
[C.] D. "partial-birth abortion" means a procedure in which any person, including a physician or other health care professional, intentionally extracts an independently viable fetus from the uterus into the vagina and mechanically extracts the cranial contents of the fetus in order to induce death; [and
D.] E. "physician" means a person licensed to practice in the state as a licensed physician pursuant to the Medical Practice Act or an osteopathic physician licensed pursuant to Chapter 61, Article 10 NMSA 1978; and
F. "viable" means able to survive outside the womb indefinitely by natural or artificial life-support systems."
SECTION 3. Section 30-5A-3 NMSA 1978 (being Laws 2000, Chapter 55, Section 3) is amended to read:
"30-5A-3. PROHIBITION OF LATE-TERM ABORTIONS AND PARTIAL-BIRTH ABORTIONS.--No person shall perform a late-term abortion or partial-birth abortion except a physician who has determined that in [his] the physician's opinion the late-term abortion or partial-birth abortion is necessary to save the life of a pregnant female or prevent great bodily harm to a pregnant female:
A. because her life is endangered or she is at risk of great bodily harm due to a physical disorder, illness or injury, including a condition caused by or arising from the pregnancy; and
B. no other medical procedure would suffice for the purpose of saving her life or preventing great bodily harm to her."
SECTION 4. Section 30-5A-4 NMSA 1978 (being Laws 2000, Chapter 55, Section 4) is amended to read:
"30-5A-4. CIVIL REMEDIES.--
A. Except as provided in Subsection B of this section, the following persons may bring a civil action to obtain relief pursuant to this section against a person who has violated the provisions of Section [3 of the Partial-Birth Abortion Ban Act] 30-5A-3 NMSA 1978:
(1) the person on whom a late-term abortion or partial-birth abortion was performed;
(2) the biological father of the fetus that was the subject of the late-term abortion or partial-birth abortion; and
(3) the parents of the person on whom the late-term abortion or partial-birth abortion was performed if that person had not reached the age of majority at the time of the abortion.
B. The persons named as having a right of action in Subsection A of this section are barred from bringing a civil action pursuant to this section if:
(1) the pregnancy of the person on whom the late-term abortion or partial-birth abortion was performed resulted from criminal conduct of the person seeking to bring the action; or
(2) the late-term abortion or partial-birth abortion was consented to by the person seeking to bring the action.
C. A person authorized to bring a civil action pursuant to this section may recover compensatory damages for loss caused by violation of Section [3 of the Partial-Birth Abortion Ban Act] 30-5A-3 NMSA 1978."
SECTION 5. Section 30-5A-5 NMSA 1978 (being Laws 2000, Chapter 55, Section 5) is amended to read:
"30-5A-5. CRIMINAL PENALTY--EXCEPTION.--
A. Except as provided in Subsections B, C, D and E of this section, a person who violates Section [3 of the Partial-Birth Abortion Ban Act] 30-5A-3 NMSA 1978 is guilty of a fourth degree felony and shall be sentenced pursuant to Section 31-18-15 NMSA 1978.
B. The provisions of the Late-Term Abortion and Partial-Birth Abortion Ban Act shall apply only to the exact [procedure] procedures specified in that act.
C. The provisions of the Late-Term Abortion and Partial-Birth Abortion Ban Act are not intended to criminalize any other method of terminating a woman's pregnancy.
D. The provisions of the Late-Term Abortion and Partial-Birth Abortion Ban Act are not intended to subject a woman, upon whom [the] a procedure specified in that act is performed, to criminal culpability as an accomplice, aider, abettor, solicitor or conspirator.
E. The provisions of the Late-Term Abortion and Partial-Birth Abortion Ban Act are not intended to subject any person to criminal culpability pursuant to laws governing attempt, solicitation or conspiracy to commit a crime."
SECTION 6. [NEW MATERIAL] ABORTION--DETERMINATION OF VIABILITY--PENALTY.--
A. Before performing an abortion, a physician shall determine, to a reasonable degree of certainty, whether the fetus is viable.
B. A physician is guilty of a fourth degree felony if the physician fails to ascertain the viability of a fetus to a reasonable degree of certainty and the physician aborts the fetus.
C. As used in this section, "viable" means able to survive outside the womb indefinitely by natural or artificial life-support systems.
SECTION 7. REPEAL.--Section 30-5-3 NMSA 1978 (being Laws 1969, Chapter 67, Section 3) is repealed.
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