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H.B. 241





Sponsor: Mike Thompson

             5      This act modifies the Health and Human Services Code. This act adds a definition of
             6      partial birth abortion to the definition section. This act removes provisions dealing with
             7      partial birth abortion procedures from one section and creates a section that prohibits
             8      these procedures. This act provides and sets limitations on remedies for a father or the
             9      maternal grandparents of the fetus. This act also provides that a physician is entitled to a
             10      hearing before the State Medical Board to determine the necessity of the physician's
             11      conduct.
             12      This act affects sections of Utah Code Annotated 1953 as follows:
             13      AMENDS:
             14          76-7-301, as last amended by Chapter 70, Laws of Utah 1993
             15          76-7-310.5, as enacted by Chapter 267, Laws of Utah 1996
             16          76-7-314, as last amended by Chapter 267, Laws of Utah 1996
             17          76-7-315, as last amended by Chapter 5, Laws of Utah 1996, Second Special Session
             18      ENACTS:
             19          76-7-326, Utah Code Annotated 1953
             20          76-7-327, Utah Code Annotated 1953
             21          76-7-328, Utah Code Annotated 1953
             22      Be it enacted by the Legislature of the state of Utah:
             23          Section 1. Section 76-7-301 is amended to read:
             24           76-7-301. Definitions.
             25          As used in this part:
             26          (1) "Abortion" means the intentional termination or attempted termination of human
             27      pregnancy after implantation of a fertilized ovum, and includes any and all procedures

             28      undertaken to kill a live unborn child and includes all procedures undertaken to produce a
             29      miscarriage. "Abortion" does not include removal of a dead unborn child.
             30          (2) "Medical emergency" means that condition which, on the basis of the physician's
             31      good faith clinical judgment, so [complicates the medical condition] threatens the life of a
             32      pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death,
             33      or for which a delay will create serious risk of substantial and irreversible impairment of major
             34      bodily function.
             35          (3) "Partial birth abortion" means an abortion in which:
             36          (a) the person performing the abortion deliberately and intentionally vaginally delivers
             37      a living fetus until, in the case of a head first presentation, the entire fetal head is outside the
             38      body of the mother, or in the case of breech presentation, any part of the fetal trunk past the
             39      navel is outside the body of the mother for the purpose of performing an overt act that the
             40      person knows will kill the partially delivered living fetus; and
             41          (b) performs the overt act, other than completion of delivery, that kills the partially
             42      living fetus.
             43          [(3)] (4) "Physician" means a medical doctor licensed to practice medicine and surgery
             44      under the Utah Medical Practice Act, a physician in the employment of the government of the
             45      United States who is similarly qualified, or an osteopathic physician licensed to practice
             46      medicine under the Utah Osteopathic Medicine Licensing Act.
             47          [(4)] (5) "Hospital" means a general hospital licensed by the Department of Health
             48      according to Title 26, Chapter 21, Health Care Facility Licensing and Inspection Act, and
             49      includes a clinic or other medical facility to the extent that such clinic or other medical facility
             50      provides equipment and personnel sufficient in quantity and quality to provide the same degree
             51      of safety to the pregnant woman and the unborn child as would be provided for the particular
             52      medical procedures undertaken by a general hospital licensed by the Department of Health. It
             53      shall be the responsibility of the Department of Health to determine if such clinic or other
             54      medical facility so qualifies and to so certify.
             55          Section 2. Section 76-7-310.5 is amended to read:
             56           76-7-310.5. Prohibition of specified abortion procedures.
             57          (1) As used in this section[: (a) "Partial birth abortion" or "dilation and extraction
             58      procedure" means the termination of pregnancy by partially vaginally delivering a living intact

             59      fetus, purposefully inserting an instrument into the skull of the intact fetus, and utilizing a
             60      suction device to remove the skull contents. This definition does not include the dilation and
             61      evacuation procedure involving dismemberment prior to removal, the suction curettage
             62      procedure, or the suction aspiration procedure for abortion. (b) "Saline], "saline abortion
             63      procedure" means performance of amniocentesis and injection of saline into the amniotic sac
             64      within the uterine cavity.
             65          (2) (a) After viability has been determined in accordance with Subsection [(b)] (1), no
             66      person may knowingly perform a [partial birth abortion or] dilation and extraction procedure[,]
             67      or a saline abortion procedure, unless all other available abortion procedures would pose a risk
             68      to the life or the health of the pregnant woman.
             69          (b) For purposes of this section determination of viability shall be made by the
             70      physician, based upon his own best clinical judgment. The physician shall determine whether,
             71      based on the particular facts of a woman's pregnancy that are known to him, and in light of
             72      medical technology and information reasonably available to him, there is a realistic possibility
             73      of maintaining and nourishing a life outside of the womb, with or without temporary, artificial
             74      life-sustaining support.
             75          (3) Intentional, knowing, and willful violation of this section is a third degree felony.
             76          Section 3. Section 76-7-314 is amended to read:
             77           76-7-314. Violations of abortion laws -- Classifications.
             78          (1) (a) Any person who intentionally performs an abortion other than as authorized by
             79      this part is guilty of a felony of the third degree.
             80          (b) Notwithstanding any other provision of law, a woman who seeks to have or obtains
             81      an abortion for herself is not criminally liable.
             82          (2) A willful violation of Section 76-7-307 , 76-7-308 , 76-7-310 , 76-7-310.5 , 76-7-311 ,
             83      [or ] 76-7-312 , or 76-7-326 is a felony of the third degree.
             84          (3) A violation of any other provision of this part is a class A misdemeanor.
             85          Section 4. Section 76-7-315 is amended to read:
             86           76-7-315. Exceptions to certain requirements in serious medical emergencies.
             87          When due to a serious medical emergency, time does not permit compliance with
             88      Section 76-7-302 , 76-7-304 , 76-7-305 , 76-7-305.5 , [or] 76-7-310.5 , or 76-7-326 the provisions
             89      of those sections do not apply.

             90          Section 5. Section 76-7-326 is enacted to read:
             91          76-7-326. Partial birth abortions prohibited.
             92          (1) Any physician who knowingly performs a partial birth abortion and thereby kills a
             93      human fetus shall be fined under this chapter. This section does not apply to a partial birth
             94      abortion that is necessary to save the life of a mother whose life is endangered by a physical
             95      disorder, physical illness, or physical injury, including a life endangering physical condition
             96      caused by or arising from the pregnancy itself.
             97          (2) A woman upon which a partial birth abortion is performed may not be prosecuted
             98      under this chapter for a conspiracy to violate this section.
             99          Section 6. Section 76-7-327 is enacted to read:
             100          76-7-327. Remedies for father or maternal grandparents.
             101          (1) The father, if married to the mother at the time she receives a partial birth abortion
             102      procedure, and if the mother has not attained the age of 18 years at the time of the abortion, the
             103      maternal grandparents of the fetus, may in a civil action obtain appropriate relief, unless the
             104      pregnancy resulted from the plaintiff's criminal conduct or the plaintiff consented to the
             105      abortion.
             106          (2) Such relief shall include:
             107          (a) money damages for all injuries, psychological and physical, occasioned by the
             108      violation of this section; and
             109          (b) statutory damages equal to three times the cost of the partial birth abortion
             110      procedure.
             111          Section 7. Section 76-7-328 is enacted to read:
             112          76-7-328. Hearing to determine necessity of physician's conduct.
             113          (1) A physician accused of an offense under this section may seek a hearing before the
             114      State Medical Board on whether the physician's conduct was necessary to save the life of the
             115      mother whose life was endangered by a physical disorder, physical illness, or physical injury,
             116      including a life endangering physical condition caused by or arising from the pregnancy itself.
             117          (2) The findings on the issue of necessity are admissible on that issue at trial. Upon a
             118      motion from the physician, the court must delay the beginning of the trial for not more than 30
             119      days to permit such a hearing to take place.

Legislative Review Note
    as of 1-30-03 9:07 AM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

REVISED - Legislative Review Note
    as of 2-17-03 9:00 AM

This bill raises the following constitutional or statutory concerns:
The standard for judging whether a partial birth abortion is constitutional was outlined by the United States Supreme Court on June 28, 2000. See, Stenberg v. Carhart, 530 U.S. 914, 120 S. Ct. 2597. In Sternberg, the Nebraska statute was held to be unconstitutional for at least two independent reasons: first, because the law lacked any exception for the preservation of the health of the woman, and second, because it imposed an undue burden on a woman's ability to choose a partial birth abortion, thereby unduly burdening the right to choose abortion itself. Sternberg, 530 U.S. at 938 (citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 874 (1992)).

While it appears this statute would probably satisfy the first standard, it is possible that a court would find the legislative prohibition of partial birth abortion procedures place an undue burden upon a woman's right to choose, and may be unconstitutional.

Office of Legislative Research and General Counsel

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