S.B. 69 Enrolled

PARTIAL BIRTH ABORTION AMENDMENTS
2004 GENERAL SESSION
STATE OF UTAH
Sponsor: Curtis S. Bramble
Gregory S. Bell
Leonard M. Blackham
D. Chris Buttars
Dan R. Eastman
Beverly Ann Evans
James M. Evans
David L. GladwellThomas V. Hatch
Parley G. Hellewell
John W. Hickman
Lyle W. Hillyard
Scott K. Jenkins
Sheldon L. Killpack
Peter C. KnudsonHoward A. Stephenson
David L. Thomas
John L. Valentine
Michael G. Waddoups
Carlene M. Walker
Bill Wright
L. Alma Mansell
LONG TITLE
General Description:
This bill modifies sections of the Utah Criminal Code relating to partial birth abortion.
Highlighted Provisions:
This bill:
. revises definitions;
. prohibits and makes criminal and civil penalties for a physician that performs a partial
birth abortion;
. provides and sets limitations on remedies for a father or the maternal grandparents of
the fetus;
. provides that a physician accused of an offense of performing a partial birth abortion
is entitled to a hearing before the Physicians Licensing Board or Osteopathic
Physician and Surgeon's Licensing Board to determine the necessity of the
physician's conduct;
. providing for contingent continuance of prior law; and
. makes technical changes.
Monies Appropriated in this Bill:
None
Other Special Clauses:

None
Utah Code Sections Affected:
AMENDS:
76-7-301, as last amended by Chapter 70, Laws of Utah 1993
76-7-310.5, as enacted by Chapter 267, Laws of Utah 1996
76-7-314, as last amended by Chapter 267, Laws of Utah 1996
ENACTS:
76-7-326, Utah Code Annotated 1953
76-7-327, Utah Code Annotated 1953
76-7-328, Utah Code Annotated 1953
76-7-329, Utah Code Annotated 1953
76-7-330, Utah Code Annotated 1953

Be it enacted by the Legislature of the state of Utah:
Section 1. Section 76-7-301 is amended to read:
76-7-301. Definitions.
As used in this part:
(1) "Abortion" means the intentional termination or attempted termination of human
pregnancy after implantation of a fertilized ovum, and includes any and all procedures undertaken
to kill a live unborn child and includes all procedures undertaken to produce a miscarriage.
"Abortion" does not include removal of a dead unborn child.
(2) "Medical emergency" means that condition which, on the basis of the physician's good
faith clinical judgment, so [complicates the medical condition] threatens the life of a 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 impairment of major bodily function.
(3) (a) "Partial birth abortion" means an abortion in which the person performing the
abortion:
(i) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head

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first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech
presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the
purpose of performing an overt act that the person knows will kill the partially delivered living
fetus; and
(ii) performs the overt act, other than completion of delivery, that kills the partially living
fetus.
(b) "Partial birth abortion" does not include the dilation and evacuation procedure
involving dismemberment prior to removal, the suction curettage procedure, or the suction
aspiration procedure for abortion.
(3) "Physician" means a medical doctor licensed to practice medicine and surgery under
[the] Title 58, Chapter 67, Utah Medical Practice Act, a physician in the employment of the
government of the United States who is similarly qualified, or an osteopathic physician licensed to
practice osteopathic medicine under [the] Title 58, Chapter 68, Utah Osteopathic [Medicine
Licensing] Medical Practice Act.
(4) "Hospital" means a general hospital licensed by the Department of Health according
to Title 26, Chapter 21, and includes a clinic or other medical facility to the extent that such clinic
or other medical facility provides equipment and personnel sufficient in quantity and quality to
provide the same degree of safety to the pregnant woman and the unborn child as would be
provided for the particular medical procedures undertaken by a general hospital licensed by the
Department of Health. It shall be the responsibility of the Department of Health to determine if
such clinic or other medical facility so qualifies and to so certify.
Section 2. Section 76-7-310.5 is amended to read:
76-7-310.5. Prohibition of specified abortion procedures -- Viability defined.
[(1) As used in this section:]
[(a) "Partial birth abortion" or "dilation and extraction procedure" means the termination
of pregnancy by partially vaginally delivering a living intact fetus, purposefully inserting an
instrument into the skull of the intact fetus, and utilizing a suction device to remove the skull
contents. This definition does not include the dilation and evacuation procedure involving

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dismemberment prior to removal, the suction curettage procedure, or the suction aspiration
procedure for abortion.]
[(b) "Saline] (1) As used in this section, "saline abortion procedure" means performance
of amniocentesis and injection of saline into the amniotic sac within the uterine cavity.
(2) (a) After viability has been determined in accordance with Subsection [(b)] (2)(b), no
person may knowingly perform [a partial birth abortion or dilation and extraction procedure, or] a
saline abortion procedure[,] unless all other available abortion procedures would pose a risk to the
life or the health of the pregnant woman.
(b) For purposes of this section determination of viability shall be made by the physician,
based upon his own best clinical judgment. The physician shall determine whether, based on the
particular facts of a woman's pregnancy that are known to him, and in light of medical technology
and information reasonably available to him, there is a realistic possibility of maintaining and
nourishing a life outside of the womb, with or without temporary, artificial life-sustaining support.
(3) Intentional, knowing, and willful violation of this section is a third degree felony.
Section 3. Section 76-7-314 is amended to read:
76-7-314. Violations of abortion laws -- Classifications.
(1) (a) Any person who intentionally performs an abortion other than as authorized by
this part is guilty of a felony of the third degree.
(b) (i) Notwithstanding any other provision of law, a woman who seeks to have or
obtains an abortion for herself is not criminally liable.
(ii) A woman upon whom a partial birth abortion is performed may not be prosecuted
under Section 76-7-326 or 76-7-329 for a conspiracy to violate Section 76-7-326 or 76-7-329 .
(2) A willful violation of Section 76-7-307 , 76-7-308 , 76-7-310 , 76-7-310.5 , 76-7-311 ,
or 76-7-312 is a felony of the third degree.
(3) A violation of Section 76-7-326 or 76-7-329 is a felony of the third degree.
[(3)] (4) A violation of any other provision of this part is a class A misdemeanor.
Section 4. Section 76-7-326 is enacted to read:
76-7-326. Partial birth abortions prohibited.

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Any physician who knowingly performs a partial birth abortion and thereby kills a human
fetus shall be fined or imprisoned, or both, as provided under this part. This section does not
apply to a partial birth abortion that is necessary to save the life of a mother whose life is
endangered by a physical disorder, physical illness, or physical injury, including a life endangering
physical condition caused by or arising from the pregnancy itself.
Section 5. Section 76-7-327 is enacted to read:
76-7-327. Remedies for father or maternal grandparents.
(1) The father, if married to the mother at the time she receives a partial birth abortion,
and if the mother has not attained the age of 18 years at the time of the abortion, the maternal
grandparents of the fetus, may in a civil action obtain appropriate relief, unless the pregnancy
resulted from the plaintiff's criminal conduct or the plaintiff consented to the abortion.
(2) Such relief shall include:
(a) money damages for all injuries, psychological and physical, occasioned by the
violation of Section 76-7-326 or 76-7-329 ; and
(b) statutory damages equal to three times the cost of the partial birth abortion.
Section 6. Section 76-7-328 is enacted to read:
76-7-328. Hearing to determine necessity of physician's conduct.
(1) A physician accused of an offense under Section 76-7-326 may seek a hearing before
the Physicians Licensing Board created in Section 58-67-201 , or the Osteopathic Physician and
Surgeon's Licensing Board created in Section 58-68-201 on whether the physician's conduct was
necessary to save the life of the mother whose life was endangered by a physical disorder, physical
illness, or physical injury, including a life endangering physical condition caused by or arising from
the pregnancy itself.
(2) The findings on that issue are admissible on that issue at the trial of the physician.
Upon a motion from the physician, the court shall delay the beginning of the trial for not more
than 30 days to permit such a hearing to take place.
Section 7. Section 76-7-329 is enacted to read:
76-7-329. Person unauthorized to perform abortions -- Penalties.

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A person who is not legally authorized by the state to perform abortions, but who
nevertheless directly performs a partial birth abortion, is subject to Sections 76-7-301 , 76-7-314 ,
76-7-326 , and 76-7-327 .
Section 8. Section 76-7-330 is enacted to read:
76-7-330. Contingent continuance of prior law.
(1) If the implementation of Section 76-7-326 enacted by this bill is stayed or otherwise
ordered by a court of competent jurisdiction to not be implemented, beginning on the day on
which the implementation of Section 76-7-326 is stayed or otherwise ordered not to be
implemented the statutes listed in Subsection (2) shall:
(a) be given effect as if this bill did not amend those statutes; and
(b) remain in effect as if not amended by this bill until the day on which a court orders
that Section 76-7-326 may be implemented.
(2) Subsection (1) applies to:
(a) Section 76-7-301 ;
(b) Section 76-7-310.5 ; and
(c) Section 76-7-314 .
(3) Nothing in this section prevents the Legislature from amending, repealing, or taking
any other action regarding the sections listed in Subsection (2) in this or a subsequent session.

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