Introduced Version
SENATE BILL No. 522
_____
DIGEST OF INTRODUCED BILL
Citations Affected: IC 16-18-2; IC 16-34.
Synopsis: Prohibition on abortion after 20 weeks. Sets public policy
findings concerning when a fetus can feel pain. Sets requirements for
performing an abortion after the first trimester but before the earlier of
viability of the fetus or 20 weeks of postfertilization age of the fetus
(current law requirements are based on viability of the fetus). Requires
that a physician determine the postfertilization age of a fetus before
performing an abortion, and allows for the discipline of a physician
who fails to do this in certain circumstances. Creates a cause of action
for a pregnant woman or the biological father of the fetus for actual and
punitive damages if a physician recklessly, knowingly, or intentionally
performs or attempts to perform an abortion in violation of the law.
Provides for injunctive relief for specified individuals against a
physician to prevent the physician from performing further abortions
that violate the law. Creates the special litigation defense fund to
provide reimbursement of the costs and expenses incurred by the
attorney general in defending the constitutionality of this act, and
continuously appropriates the fund. Provides for severability of
provisions if a court determines that any of the law is unconstitutional,
and specifies prior law returns to effect if the amended law is found by
the court to be unconstitutional.
Effective: July 1, 2011.
Walker
January 18, 2011, read first time and referred to Committee on Health and Provider
Services.
Introduced
First Regular Session 117th General Assembly (2011)
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SENATE BILL No. 522
A BILL FOR AN ACT to amend the Indiana Code concerning
health and to make an appropriation.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 16-18-2-128.3; (11)IN0522.1.1. -->
SECTION 1. IC 16-18-2-128.3 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 128.3. "Fertilization", for
purposes of IC 16-34, means the fusion of a human spermatozoon
with a human ovum.
SOURCE: IC 16-18-2-287.5; (11)IN0522.1.2. -->
SECTION 2. IC 16-18-2-287.5 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 287.5. "Postfertilization age", for
purposes of IC 16-34, means the age of the fetus calculated from
the date of the fertilization of the ovum.
SOURCE: IC 16-34-1-8; (11)IN0522.1.3. -->
SECTION 3. IC 16-34-1-8 IS ADDED TO THE INDIANA CODE
AS A
NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2011]:
Sec. 8. (a) The general assembly finds the following:
(1) There is substantial medical evidence that a fetus at twenty
(20) weeks of postfertilization age has the physical structures
necessary to experience pain.
(2) There is substantial medical evidence that a fetus of at
least twenty (20) weeks of postfertilization age seeks to evade
certain stimuli in a manner similar to an infant's or adult's
response to pain.
(3) Anesthesia is routinely administered to a fetus of at least
twenty (20) weeks of postfertilization age when prenatal
surgery is performed.
(4) A fetus has been observed to exhibit hormonal stress
responses to painful stimuli earlier than at twenty (20) weeks
of postfertilization age.
(b) Indiana asserts a compelling state interest in protecting the
life of a fetus from the state at which substantial medical evidence
indicates that the fetus is capable of feeling pain.
SOURCE: IC 16-34-2-0.5; (11)IN0522.1.4. -->
SECTION 4. IC 16-34-2-0.5 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2011]: Sec 0.5. A medical emergency, for purposes of this
chapter, does not include a patient's claim or diagnosis that the
patient would engage in conduct that would result in the patient's
death or substantial physical impairment. Under the circumstances
described in this section and unless the following would pose a
great risk of death or substantial physical impairment of the
patient, the physician shall terminate the patient's pregnancy in a
manner that, in a physician's reasonable medical judgment, would
result in the best opportunity for the fetus to survive.
SOURCE: IC 16-34-2-1; (11)IN0522.1.5. -->
SECTION 5. IC 16-34-2-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 1. (a) Abortion shall in
all instances be a criminal act, except when performed under the
following circumstances:
(1) During the first trimester of pregnancy for reasons based upon
the professional, medical judgment of the pregnant woman's
physician if:
(A) the abortion is performed by the physician;
(B) the woman submitting to the abortion has filed her consent
with her physician. However, if in the judgment of the
physician the abortion is necessary to preserve the life of the
woman, her consent is not required; and
(C) the woman submitting to the abortion has filed with her
physician the written consent of her parent or legal guardian
if required under section 4 of this chapter.
(2) After the first trimester of pregnancy and before the earlier of
viability of the fetus or twenty (20) weeks of postfertilization
age, for reasons based upon the professional, medical judgment
of the pregnant woman's physician if:
(A) all the circumstances and provisions required for legal
abortion during the first trimester are present and adhered to;
and
(B) the abortion is performed in a hospital or ambulatory
outpatient surgical center (as defined in IC 16-18-2-14).
(3) Except as provided in subsection (b), at the earlier of
viability of the fetus or twenty (20) weeks of postfertilization
age and any time after, viability of the fetus, for reasons based
upon the professional, medical judgment of the pregnant woman's
physician if:
(A) all the circumstances and provisions required for legal
abortion before the earlier of viability of the fetus or twenty
(20) weeks of postfertilization age are present and adhered
to;
(B) the abortion is performed in compliance with section 3 of
this chapter; and
(C) before the abortion the attending physician shall certify in
writing to the hospital in which the abortion is to be
performed, that in the attending physician's professional,
medical judgment, after proper examination and review of the
woman's history, the abortion is necessary to prevent a
substantial permanent impairment of the life or physical health
of the pregnant woman. All facts and reasons supporting the
certification shall be set forth by the physician in writing and
attached to the certificate.
(b) A person may not knowingly or intentionally perform a partial
birth abortion unless a physician reasonably believes that:
(1) performing the partial birth abortion is necessary to save the
mother's life; and
(2) no other medical procedure is sufficient to save the mother's
life.
SOURCE: IC 16-34-2-2; (11)IN0522.1.6. -->
SECTION 6. IC 16-34-2-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 2.
(a) It shall be the
responsibility of the attending physician to do the following:
(1) Determine in accordance with accepted medical standards
the
postfertilization age of the fetus and which trimester the
pregnant woman receiving the abortion is in.
(2) Determine whether the fetus is viable.
(3) Certify that determination as part of any written reports
required of the attending physician by the state department or the
facility in which the abortion is performed.
(b) In making a determination under this section of the
postfertilization age of the fetus, the attending physician shall do
the following:
(1) Question the patient concerning the date of fertilization.
(2) Perform or cause to be performed medical examinations
and tests that a reasonably prudent physician would conduct
to accurately diagnose the postfertilization age of the fetus.
(c) Except in the case of a medical emergency (as described in
section 0.5 of this chapter), a physician that violates this section is
subject to disciplinary action under IC 25-1-9.
SOURCE: IC 16-34-2-3; (11)IN0522.1.7. -->
SECTION 7. IC 16-34-2-3, AS AMENDED BY P.L.146-2008,
SECTION 445, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 3. (a) All abortions performed
after
on and after the earlier of the time a
fetus is viable
or the time the
postfertilization age of the fetus is at least twenty (20) weeks shall
be:
(1) governed by section 1(a)(3) and 1(b) of this chapter;
(2) performed in a hospital having premature birth intensive care
units, unless compliance with this requirement would result in an
increased risk to the life or health of the mother; and
(3) performed in the presence of a second physician as provided
in subsection (b).
(b) An abortion may be performed after
the earlier of the time a
fetus is viable
or the time the postfertilization age of the fetus is at
least twenty (20) weeks only if there is in attendance a physician,
other than the physician performing the abortion, who shall take control
of and provide immediate care for a child born alive as a result of the
abortion. During the performance of the abortion, the physician
performing the abortion, and after the abortion, the physician required
by this subsection to be in attendance, shall take all reasonable steps in
keeping with good medical practice, consistent with the procedure
used, to preserve the life and health of the viable unborn child.
However, this subsection does not apply if compliance would result in
an increased risk to the life or health of the mother.
(c) Any fetus born alive shall be treated as a person under the law,
and a birth certificate shall be issued certifying the child's birth even
though the child may subsequently die, in which event a death
certificate shall be issued. Failure to take all reasonable steps, in
keeping with good medical practice, to preserve the life and health of
the live born person shall subject the responsible persons to Indiana
laws governing homicide, manslaughter, and civil liability for wrongful
death and medical malpractice.
(d) If, before the abortion, the mother, and if married, her husband,
has or have stated in writing that she does or they do not wish to keep
the child in the event that the abortion results in a live birth, and this
writing is not retracted before the abortion, the child, if born alive, shall
immediately upon birth become a ward of the department of child
services.
SOURCE: IC 16-34-2-5; (11)IN0522.1.8. -->
SECTION 8. IC 16-34-2-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 5. (a) Every medical
facility where abortions may be performed shall be supplied with forms
drafted by the state department, the purpose and function of which shall
be the improvement of maternal health and life through the compilation
of relevant maternal life and health factors and data, and a further
purpose and function shall be to monitor all abortions performed in
Indiana to assure the abortions are done only under the authorized
provisions of the law. Such forms shall include, among other things, the
following:
(1) The age of the woman who is aborted.
(2) The place where the abortion is performed.
(3) The full name and address of the physicians performing the
abortion.
(4) The name of the father if known.
(5) The postfertilization age of the fetus, the manner in which
the postfertilization age was determined, and if after the
earlier of the time the fetus obtains viability or the time the
postfertilization age of the fetus is at least twenty (20) weeks,
the medical reason for the abortion.
(6) The medical procedure employed to administer the abortion,
and if the medical procedure performed on a fetus who is
viable or has a postfertilization age of at least twenty (20)
weeks:
(A) whether the method of abortion used was a method,
that in the reasonable judgment of a physician, would
provide the best opportunity for the fetus to survive; and
(B) the basis for the determination that the pregnant
woman had a condition described in this chapter that
required the abortion to avert the death of or serious
impairment to the pregnant woman.
(7) The mother's obstetrical history, including dates of other
abortions, if any.
(8) The results of pathological examinations if performed.
(9) Information as to whether the fetus was delivered alive.
(10) Records of all maternal deaths occurring within the health
facility where the abortion was performed.
(b) The form provided for in subsection (a) shall be completed by
the physician performing the abortion and shall be transmitted to the
state department not later than July 30 for each abortion performed in
the first six (6) months of that year and not later than January 30 for
each abortion performed for the last six (6) months of the preceding
year. Each failure to file the form on time as required is a Class B
misdemeanor.
(c) Not later than June 30 of each year, the state department
shall compile a public report providing the following:
(1) Statistics for the previous calendar year from the
information submitted under this section.
(2) Statistics for previous calendar years compiled by the state
department under this subsection, with updated information
for the calendar year that was submitted to the state
department after the compilation of the statistics.
The state department shall ensure that no identifying information
of a pregnant woman is contained in the report.
SOURCE: IC 16-34-2-8; (11)IN0522.1.9. -->
SECTION 9. IC 16-34-2-8 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2011]: Sec. 8. (a) A pregnant woman or the biological father of
the fetus may file a cause of action for actual and punitive damages
against a physician who recklessly, knowingly, or intentionally
performs or attempts to perform an abortion on the pregnant
woman in violation of this chapter.
(b) The following may file an action for injunctive relief against
a physician who violates this chapter to prevent the physician from
performing further abortions in violation of this chapter:
(1) A pregnant woman who has an abortion or attempts to
have an abortion performed by a physician who violates this
chapter.
(2) A spouse, parent, sibling, guardian, or health care
provider of a pregnant woman described in subdivision (1).
(3) The attorney general.
(4) A county attorney with appropriate jurisdiction.
(c) If a judgment is rendered in favor of the plaintiff in an action
described in this section, the court shall also order the defendant
to render reasonable attorney's fees on behalf of the plaintiff.
(d) If a judgment is rendered in favor of the defendant in an
action described in this section and the court determines that the
lawsuit was frivolous and brought in bad faith, the court shall
order the plaintiff to render reasonable attorney's fees on behalf of
the defendant.
SOURCE: IC 16-34-2-9; (11)IN0522.1.10. -->
SECTION 10. IC 16-34-2-9 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2011]: Sec. 9. (a) The special litigation defense fund is established
for the purpose of providing reimbursement of the costs and
expenses incurred by the attorney general in defending the
constitutionality of actions taken in the 2011 session of the general
assembly to the statutes specified in subsection (b).
(b) The fund must be used to defend the constitutionality of
actions taken in the 2011 session of the general assembly amending
or adding the following sections of this chapter:
(1) Section 0.5.
(2) Section 1.
(3) Section 2.
(4) Section 3.
(5) Section 5.
(6) Section 8.
(7) Section 10.
(c) The fund shall be administered by the treasurer of state.
(d) The treasurer of state shall invest the money in the fund not
currently needed to meet the obligations of the fund in the same
manner as other public money may be invested. Interest that
accrues from these investments shall be deposited in the fund.
(e) The expenses of administering the fund shall be paid from
money in the fund.
(f) Money to be deposited into the fund consists of the following:
(1) Appropriations made by the general assembly.
(2) Donations, gifts, or grants made by persons for carrying
out the purposes of the fund.
(g) Money in the fund at the end of a state fiscal year does not
revert to the state general fund. Money in the fund is continually
appropriated.
SOURCE: IC 16-34-2-10; (11)IN0522.1.11. -->
SECTION 11. IC 16-34-2-10 IS ADDED TO THE INDIANA
CODE AS A
NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]:
Sec. 10. (a) If any provision of this
chapter is found by the courts to be unconstitutional or invalid, the
unconstitutional or invalid provision shall be considered severable
in the manner provided by IC 1-1-1-8(b).
(b) If a court determines that any of the following sections of
this chapter resulting from the actions taken by the 2011 session of
the general assembly are unconstitutional, the amendments found
by the court to be unconstitutional are void and the language in
effect before the amendments return to effect:
(1) Section 0.5.
(2) Section 1.
(3) Section 2.
(4) Section 3.
(5) Section 5.