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7 LONG TITLE
8 General Description:
9 This bill prohibits the abortion of an unborn child because of Down syndrome.
10 Highlighted Provisions:
11 This bill:
12 ▸ defines "Down syndrome";
13 ▸ requires a physician to provide certain information to a pregnant woman when a
14 prenatal screening or diagnostic test indicates that the pregnant woman's unborn
15 child has or may have Down syndrome;
16 ▸ prohibits a person from performing, inducing, or attempting to perform or induce an
17 abortion on a pregnant woman who is seeking the abortion because an unborn child
18 has, or may have, Down syndrome;
19 ▸ requires the pathology report to provide information about whether an aborted child
20 had or may have had Down syndrome;
21 ▸ requires a physician who performed an abortion to affirm that the physician did not
22 have knowledge that the pregnant woman sought the abortion because the unborn
23 child had or may have had Down syndrome; and
24 ▸ makes technical changes.
25 Money Appropriated in this Bill:
26 None
27 Other Special Clauses:
28 None
29 Utah Code Sections Affected:
30 AMENDS:
31 76-7-301, as last amended by Laws of Utah 2010, Chapter 13
32 76-7-302, as last amended by Laws of Utah 2010, Chapter 13
33 76-7-309, as enacted by Laws of Utah 1974, Chapter 33
34 76-7-310, as enacted by Laws of Utah 1974, Chapter 33
35 76-7-313, as last amended by Laws of Utah 2010, Chapter 314
36 76-7-317, as enacted by Laws of Utah 1974, Chapter 33
37
38 Be it enacted by the Legislature of the state of Utah:
39 Section 1. Section 76-7-301 is amended to read:
40 76-7-301. Definitions.
41 As used in this part:
42 (1) (a) "Abortion" means:
43 (i) the intentional termination or attempted termination of human pregnancy after
44 implantation of a fertilized ovum through a medical procedure carried out by a physician or
45 through a substance used under the direction of a physician;
46 (ii) the intentional killing or attempted killing of a live unborn child through a medical
47 procedure carried out by a physician or through a substance used under the direction of a
48 physician; or
49 (iii) the intentional causing or attempted causing of a miscarriage through a medical
50 procedure carried out by a physician or through a substance used under the direction of a
51 physician.
52 (b) "Abortion" does not include:
53 (i) removal of a dead unborn child;
54 (ii) removal of an ectopic pregnancy; or
55 (iii) the killing or attempted killing of an unborn child without the consent of the
56 pregnant woman, unless:
57 (A) the killing or attempted killing is done through a medical procedure carried out by
58 a physician or through a substance used under the direction of a physician; and
59 (B) the physician is unable to obtain the consent due to a medical emergency.
60 (2) "Down syndrome" means a genetic condition associated with an extra chromosome
61 21, in whole or in part, or an effective trisomy for chromosome 21.
62 [
63 (a) a general hospital licensed by the Department of Health according to Title 26,
64 Chapter 21, Health Care Facility Licensing and Inspection Act; and
65 (b) a clinic or other medical facility to the extent that such clinic or other medical
66 facility is certified by the Department of Health as providing equipment and personnel
67 sufficient in quantity and quality to provide the same degree of safety to the pregnant woman
68 and the unborn child as would be provided for the particular medical procedures undertaken by
69 a general hospital licensed by the Department of Health.
70 [
71 physician's good faith clinical judgment, so threatens the life of a pregnant woman as to
72 necessitate the immediate abortion of her pregnancy to avert her death, or for which a delay
73 will create serious risk of substantial and irreversible impairment of major bodily function.
74 [
75 the abortion:
76 (i) deliberately and intentionally vaginally delivers a living fetus until, in the case of a
77 head first presentation, the entire fetal head is outside the body of the mother, or, in the case of
78 breech presentation, any part of the fetal trunk past the navel is outside the body of the mother,
79 for the purpose of performing an overt act that the person knows will kill the partially delivered
80 living fetus; and
81 (ii) performs the overt act, other than completion of delivery, that kills the partially
82 living fetus.
83 (b) "Partial birth abortion" does not include the dilation and evacuation procedure
84 involving dismemberment prior to removal, the suction curettage procedure, or the suction
85 aspiration procedure for abortion.
86 [
87 (a) a medical doctor licensed to practice medicine and surgery under Title 58, Chapter
88 67, Utah Medical Practice Act;
89 (b) an osteopathic physician licensed to practice osteopathic medicine under Title 58,
90 Chapter 68, Utah Osteopathic Medical Practice Act; or
91 (c) a physician employed by the federal government who has qualifications similar to a
92 person described in Subsection [
93 Section 2. Section 76-7-302 is amended to read:
94 76-7-302. Circumstances under which abortion authorized.
95 (1) As used in this section, "viable" means that the unborn child has reached a stage of
96 fetal development when the unborn child is potentially able to live outside the womb, as
97 determined by the attending physician to a reasonable degree of medical certainty.
98 (2) An abortion may be performed in this state only by a physician.
99 (3) An abortion may be performed in this state only under the following circumstances:
100 (a) except as provided in Subsection 76-7-310(3), the unborn child is not viable; or
101 (b) the unborn child is viable, if:
102 (i) the abortion is necessary to avert:
103 (A) the death of the woman on whom the abortion is performed; or
104 (B) a serious risk of substantial and irreversible impairment of a major bodily function
105 of the woman on whom the abortion is performed;
106 (ii) two physicians who practice maternal fetal medicine concur, in writing, in the
107 patient's medical record that the fetus has a defect that is uniformly diagnosable and uniformly
108 lethal; or
109 (iii) (A) the woman is pregnant as a result of:
110 (I) rape, as described in Section 76-5-402;
111 (II) rape of a child, as described in Section 76-5-402.1; or
112 (III) incest, as described in Subsection 76-5-406(10) or Section 76-7-102; and
113 (B) before the abortion is performed, the physician who performs the abortion:
114 (I) verifies that the incident described in Subsection (3)(b)(iii)(A) has been reported to
115 law enforcement; and
116 (II) complies with the requirements of Section 62A-4a-403.
117 Section 3. Section 76-7-309 is amended to read:
118 76-7-309. Pathologist's report.
119 Any human tissue removed during an abortion shall be submitted to a pathologist who
120 shall make a report, including[
121
122 (1) the pregnancy was aborted by evacuating the uterus[
123 (2) a medical record indicates that, through a prenatal screening or other diagnostic
124 test, the aborted fetus had or may have had Down syndrome.
125 Section 4. Section 76-7-310 is amended to read:
126 76-7-310. Experimentation with unborn children prohibited -- Testing for genetic
127 defects -- Providing test results -- Prohibition of abortion due to Down syndrome.
128 (1) Live unborn children may not be used for experimentation, but when advisable, in
129 the best medical judgment of [
130 (2) The result of any prenatal screening or diagnostic test that indicates that an unborn
131 child has or may have Down syndrome shall be delivered to the pregnant woman:
132 (a) by a physician at an in-person consultation or a scheduled telephone conference;
133 (b) with contact information for state or national Down syndrome parents' groups; and
134 (c) with a referral to a physician or other specialist who is knowledgeable about
135 providing medical care to a child with Down syndrome.
136 (3) A person may not intentionally perform or attempt to perform an abortion if that
137 person has knowledge that the pregnant woman is seeking the abortion because:
138 (a) the unborn child has been diagnosed with Down syndrome; or
139 (b) the pregnant woman believes that the unborn child may have Down syndrome.
140 (4) A person who performs an abortion described in Subsection (3) is guilty of a class
141 A misdemeanor.
142 (5) A pregnant woman upon whom an abortion is performed in violation of this section
143 may not be prosecuted for violating or conspiring to violate this section.
144 Section 5. Section 76-7-313 is amended to read:
145 76-7-313. Physician's report to Department of Health.
146 (1) In order for the state Department of Health to maintain necessary statistical
147 information and ensure enforcement of the provisions of this part, any physician performing an
148 abortion must obtain and record in writing:
149 (a) the age, marital status, and county of residence of the woman on whom the abortion
150 was performed;
151 (b) the number of previous abortions performed on the woman described in Subsection
152 (1)(a);
153 (c) the hospital or other facility where the abortion was performed;
154 (d) the weight in grams of the unborn child aborted, if it is possible to ascertain;
155 (e) the pathological description of the unborn child;
156 (f) the given menstrual age of the unborn child;
157 (g) the measurements of the unborn child, if possible to ascertain; and
158 (h) the medical procedure used to abort the unborn child.
159 (2) Each physician who performs an abortion shall provide the following to the
160 Department of Health within 30 days after the day on which the abortion is performed:
161 (a) the information described in Subsection (1);
162 (b) a copy of the pathologist's report described in Section 76-7-309;
163 (c) an affidavit indicating whether:
164 (i) [
165 and 76-7-305.6; and
166 [
167 (ii) at the time the physician performed the abortion, the physician had any knowledge
168 that the pregnant woman sought the abortion because the unborn child had or may have had
169 Down syndrome;
170 (d) a certificate indicating:
171 (i) whether the unborn child was or was not viable, as defined in Subsection
172 76-7-302(1), at the time of the abortion; and
173 (ii) if the unborn child was viable, as defined in Subsection 76-7-302(1), at the time of
174 the abortion, the reason for the abortion[
175 (e) the affidavit described in Subsection 76-7-305.6(4), if applicable.
176 (3) All information supplied to the Department of Health shall be confidential and
177 privileged pursuant to Title 26, Chapter 25, Confidential Information Release.
178 Section 6. Section 76-7-317 is amended to read:
179 76-7-317. Severability clause.
180 If any [
181 this part or the application thereof to any person or circumstance is found to be
182 unconstitutional, the same is [
183 remain effective notwithstanding such unconstitutionality. The Legislature hereby declares that
184 it would have passed this part, and each provision, section, subsection, sentence, clause, phrase
185 or word thereof, irrespective of the fact that any one or more provision, section, subsection,
186 sentence, clause, phrase, or word be declared unconstitutional.
Legislative Review Note
The Utah Legislature's Joint Rule 4-2-402 requires legislative general counsel to place a
legislative review note on legislation. The Legislative Management Committee has further
directed legislative general counsel to include legal analysis in the legislative review note only
if legislative general counsel determines there is a high probability that a court would declare
the legislation to be unconstitutional under the Utah Constitution, the United States
Constitution, or both. As explained in the legal analysis below, legislative general counsel has
determined, based on applicable state and federal constitutional language and current
interpretations of that language in state and federal court case law, that this legislation has a
high probability of being declared unconstitutional by a court.
This bill prohibits the abortion of an unborn child if the pregnant mother's sole reason for
seeking the abortion is because the unborn child has or may have Down syndrome.
The U.S. Supreme Court has recognized the competing interests of the state's desire to "protect
. . . the life of the fetus that may become a child" and a mother's right "to choose to have an
abortion." Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992). Analyzing these competing
interests, the Court determined that "viability" is "the point at which the balance of interests
tips." Id. at 861. Accordingly, "viability marks the earliest point at which the State's interest in
fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions."
Id. at 860. Prior to a fetus's viability, outside of the womb, "[a] State may not prohibit any
woman from making the ultimate decision to terminate her pregnancy." Id. at 879; see also Roe
v. Wade, 410 U.S. 113, 163-65 (1973); Gonzales v. Carhart, 550 U.S. 124, 146 (2007); Whole
Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2299, 195 L. Ed. 2d 665 (2016), as revised
(June 27, 2016). Since Roe was decided in 1973 and was reaffirmed by Casey in 1992, "circuit
courts have consistently held that any type of outright ban on pre-viability abortions is
unconstitutional." Planned Parenthood of Indiana and Kentucky v. Commissioner, No.
1:16-cv-00763-TWP-DML, 2017 WL 4224750, at *6 (S.D. Ind. Sept. 22, 2017) (holding that
prior to viability, a State cannot restrict a woman from exercising her right to choose an
abortion, regardless of the reason for her choice).
The United States District Court for the Southern District of Indiana adjudicated a
constitutional challenge of an Indiana statute that created a similar abortion ban to the ban
proposed by this legislation. Id. at *1. That court determined that Roe and its progeny create a
"categorical" right for a pregnant woman to obtain an abortion prior to the fetus's viability,
regardless of whether the woman exercises that right because she does not want a baby or
because she wants a baby but not a particular baby. Id. at *7. At this time, no court has held to
the contrary.
Assuming a court follows and applies the United States Supreme Court holdings and reasoning
from Roe and its progeny, there is a high probability that the court would find the proposed
legislation unconstitutional because the legislation violates current case law establishing a
woman's constitutional right to a nontherapeutic previability abortion.
Office of Legislative Research and General Counsel