Chief Sponsor: Karianne Lisonbee

Senate Sponsor: Curtis S. Bramble


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

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          [(5)] (3) "Hospital" means:
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          [(2)] (4) "Medical emergency" means that condition which, on the basis of the
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          [(3)] (5) (a) "Partial birth abortion" means an abortion in which the person performing
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          [(4)] (6) "Physician" means:
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 [(4)] (6)(a) or (b).
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[, but not limited to whether there was a pregnancy, and if

121     possible,] whether:
122          (1) the pregnancy was aborted by evacuating the uterus[.]; and
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 [the] a physician, may be tested for genetic defects.
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) [that] the required consent was obtained pursuant to Sections 76-7-305, 76-7-305.5,
165     and 76-7-305.6; and
166          [(ii) described in Subsection 76-7-305.6(4), if applicable; and]
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[.]; and
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 [one or more] provision, section, subsection, sentence, clause, phrase, or word of
181     this part or the application thereof to any person or circumstance is found to be
182     unconstitutional, the same is [hereby declared to be] severable and the balance of this part shall

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