THE SENATE

S.B. NO.

2238

THIRTIETH LEGISLATURE, 2020

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO THE TERMINATION OF PREGNANCY.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

PAIN-CAPABLE UNBORN CHILD PROTECTION AND DISMEMBERMENT ABORTION BAN ACT

PART I. GENERAL PROVISIONS

-1 Definitions. As used in this chapter, unless the context indicates otherwise:

"Abortion" means the use or prescription of any instrument, medicine, drug, or any other substance or device to intentionally:

(1) Kill the unborn child of a woman known to be pregnant; or

(2) Terminate the pregnancy of a woman known to be pregnant, with an intention other than:

(A) After viability, to produce a live birth and preserve the life and health of the child born alive; or

(B) To remove a dead unborn child.

"Attempt", with respect to abortion, means conduct that under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in performing an abortion.

"Born alive" or "live birth" means the complete expulsion or extraction of an infant from his or her mother, regardless of the state of gestational development, that after expulsion or extraction, whether or not the umbilical cord has been cut or the placenta is attached, shows evidence of life, including:

(1) Breathing;

(2) A heartbeat;

(3) Umbilical cord pulsations;

(4) Definite movement of voluntary muscles; or

(5) Any other evidence of life according to standard medical practice.

"Counseling" means counseling provided by a counselor licensed by the State, or a victim's rights advocate provided by a law enforcement agency.

"Dismemberment abortion":

(1) Means, with the purpose of causing the death of an unborn child, knowingly dismembering a living unborn child and extracting the unborn child one piece at a time or intact but crushed from the uterus through the use of clamps, grasping forceps, tongs, scissors or similar instruments that, through the convergence of two rigid levers, slice, crush, or grasp a portion of the unborn child's body in order to cut or rip it off or crush it; but

(2) Does not include an abortion that uses suction to dismember the body of the unborn child by sucking fetal parts into a collection container unless the actions described in paragraph (1) are used to cause the death of an unborn child but suction is subsequently used to extract fetal parts after the death of the unborn child.

"Facility" means any medical or counseling group, center or clinic and includes the entire legal entity, including any entity that controls, is controlled by, or is under common control with such facility.

"Fertilization" means the fusion of human spermatozoon with a human ovum.

"Fiscal year" means the period beginning July 1 of one calendar year to June 30 of the following calendar year.

"Medical treatment" means treatment provided at a hospital licensed by the State, at a medical clinic licensed by the State, or from a physician.

"Minor" means an individual under eighteen years of age.

"Pain-capable unborn child" means an unborn child that has attained a post-fertilization age at which the child is capable of experiencing pain.

"Perform", with respect to an abortion, includes inducing an abortion through a medical or chemical intervention including writing a prescription for a drug or device intended to result in an abortion.

"Physician" means a physician or surgeon licensed to practice medicine or osteopathy under chapter 453.

"Post-fertilization age" means the age of the unborn child as calculated from the fusion of a human spermatozoon with a human ovum.

"Probable post-fertilization age" means the age that, in reasonable medical judgment, will with reasonable probability be the post-fertilization age of the unborn child at the time the abortion is planned to be performed or induced.

"Reasonable medical judgment" means a medical judgment by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.

"Unborn child" means an individual organism of the human species, beginning at fertilization, until the point of being born alive.

-2 General provisions. Notwithstanding any law to the contrary, it shall be unlawful for any physician to perform an abortion or attempt to do so, unless in conformity with this chapter.

PART II. ABORTIONS OF PAIN-CAPABLE UNBORN CHILDREN

-11 Assessment of post-fertilization age. (a) A physician performing or attempting an abortion shall first determine the probable post-fertilization age of the unborn child or reasonably rely upon a determination made by another physician. In making that determination, the physician shall make inquiries of the pregnant woman and perform or cause to be performed medical examinations and tests that a reasonably prudent physician, knowledgeable about the case and the medical conditions involved, would consider necessary to make an accurate determination of post-fertilization age.

(b) If the probable post-fertilization age of the unborn child is at least twenty weeks, the child shall be considered a pain-capable unborn child.

-12 Prohibition of abortion of pain-capable unborn child; exceptions. (a) Except as provided in subsection (b), an abortion shall not be performed or attempted if, as determined pursuant to the assessment performed under section    -11, the unborn child is a pain-capable unborn child.

(b) Subsection (a) shall not apply if:

(1) In reasonable medical judgment, the abortion is necessary to save the life of a pregnant woman 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, but not including psychological or emotional conditions;

(2) The pregnancy is the result of rape against an adult woman who, at least forty-eight hours before the abortion, has obtained:

(A) Counseling for the rape; or

(B) Medical treatment for the rape or for an injury related to the rape;

(3) The pregnancy is the result of rape against an adult woman and the rape has been reported at any time before the abortion to a law enforcement agency; or

(4) The pregnancy is a result of rape against a minor or incest against a minor, and the rape or incest has been reported at any time before the abortion to any:

(A) Government agency authorized to act on reports of child abuse; or

(B) Law enforcement agency;

provided that the unborn child is sedated or aborted before any dismemberment of the child's body is made.

-13 Requirement as to manner of procedure performed. Notwithstanding the definitions of "abortion" and "attempt" in section -1, a physician terminating or attempting to terminate a pregnancy pursuant to an exception provided under section -12(b) may do so only in a manner that, in reasonable medical judgment, provides the best opportunity for the unborn child to survive.

-14 Documentation requirements. (a) A physician who performs or attempts to perform an abortion on an adult woman pursuant to an exception provided by section -12(b)(2) shall, before the abortion, place in the patient medical file documentation from a:

(1) Hospital licensed by the State or operated under authority of a federal agency;

(2) Medical clinic licensed by the State or operated under authority of a federal agency;

(3) Personal physician licensed by the State;

(4) Counselor licensed by the State; or

(5) Victim's rights advocate provided by a law enforcement agency,

that the adult woman seeking the abortion obtained medical treatment or counseling for the rape or for an injury related to the rape.

(b) A physician who performs or attempts to perform an abortion on an adult woman pursuant to an exception provided by section -12(b)(3) shall, before the abortion, place in the patient medical file documentation from the law enforcement agency to which the rape was reported.

(c) A physician who performs or attempts to perform an abortion on a minor pursuant to an exception provided under section -12(b)(4) shall, before the abortion, place in the patient medical file documentation from the government agency or law enforcement agency to which the rape or incest of the minor was reported.

(d) Section 622-58 shall apply to the documentation required under this section.

-15 Informed consent. (a) A physician who intends to perform or attempt to perform an abortion of a pain-capable unborn child under the provisions of section -12(b) shall not commence the abortion procedure without first providing the woman seeking the abortion a disclosure form that shall include:

(1) A statement by the physician indicating the probable post-fertilization age of the pain-capable unborn child;

(2) A statement by the physician that the unborn child, due to the child's stage of development at that post-fertilization age, is capable of experiencing pain;

(3) A statement that state law authorizes an abortion after twenty weeks fetal age only if the mother's life is endangered by a physical disorder, physical illness, or physical injury, when the pregnancy was the result of rape, or an act of incest against a minor;

(4) A statement that the abortion must be performed by the method most likely to allow the child to be born alive unless this would cause significant risk to the mother; and

(5) A statement that these requirements are binding upon the physician and all other medical personnel who are subject to criminal and civil penalties, and that a woman on whom an abortion has been performed may take civil action if these requirements are not followed.

(b) The abortion disclosure form shall be signed in person by the woman seeking the abortion, who shall indicate whether or not she understands the contents of the form. If she does not understand the contents of the form, the abortion shall not be performed, unless the exception under section -16 applies. The physician performing the abortion and a witness shall also sign the form. The physician shall maintain the form in the patient's medical file.

(c) Section 622-58 shall apply to the form required under this section.

-16 Additional exception. If, in reasonable medical judgement, compliance with section -13, section -15, or both, would pose a greater risk of:

(1) The death of the pregnant woman; or

(2) The substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, of the pregnant woman,

the physician shall be exempt from section -13 or from section -15, or both, to the extent necessary to avoid the death or impairment.

-17 Exclusion of certain facilities. Notwithstanding the definitions of the terms "counseling" and "medical treatment" in section -1, the counseling or medical treatment provided by a facility that performs abortions shall not be valid for the purposes of the exception provided under section    -12(b)(2), unless that facility is a hospital.

-18 Data collection. (a) Any physician who performs or attempts an abortion described in section -12(b)(2) shall submit an annual summary of all those abortions to the department of health not later than sixty days after the end of each calendar year.

(b) Each annual summary shall include the number of abortions performed or attempted on an unborn child who had a post-fertilization age of twenty weeks or more and specify the following for each abortion performed or attempted pursuant to exception under section -12(b)(2):

(1) The probable post-fertilization age of the unborn child;

(2) The method used to carry out the abortion;

(3) The location where the abortion was conducted;

(4) The exception under section -12(b)(2) under which the abortion was conducted; and

(5) Any incident of live birth that occurred in spite of an attempted abortion.

(c) A summary required under this section shall not contain personal identifying patient information and shall be submitted in compliance with federal and state laws requiring patient privacy.

(d) The department of health shall prepare an annual report providing statistics for the most recently completed fiscal year, compiled from all of the summaries made to the department under this section. The department shall ensure that none of the information included in the public reports could reasonably lead to the identification of any pregnant woman upon whom an abortion was performed or attempted. The annual report shall be submitted to the legislature no later than twenty days prior to the convening of each regular legislative session. The department shall also make the report available to the general public.

PART III. DISMEMBERMENT ABORTIONS

-21 Dismemberment abortions prohibited; exception. (a) Except as provided in this section, no physician in this State shall perform a dismemberment abortion.

(b) Subsection (a) shall not apply if the dismemberment abortion 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, but not including psychological or emotional conditions.

-22 Construction. Section -21 shall not be construed to prohibit an abortion not otherwise prohibited by this chapter or other state law, if performed by a method other than dismemberment abortion.

PART IV. PENALTIES; REMEDIES

-31 Criminal penalties; bar to prosecution. (a) A physician who violates part II, except section -18, shall be guilty of a class C felony.

(b) A physician who violates section -18 shall be guilty of a violation.

(c) A physician who violates part III shall be guilty of a class C felony; provided that the maximum term of imprisonment shall be not more than two years.

(d) A woman upon whom an abortion is performed may not be prosecuted for conspiracy in or as an accomplice to violating this chapter.

-32 Civil remedies. (a) A woman upon whom an abortion has been performed or attempted in violation of any provision of this chapter may, in a civil action against any person who committed the violation, obtain appropriate relief.

(b) A parent of a minor upon whom an abortion has been performed or attempted under an exception provided for in section -12(b)(3), and that was performed in violation of any provision of this chapter may, in a civil action against any person who committed the violation, obtain appropriate relief, unless the pregnancy resulted from the plaintiff's criminal conduct.

(c) Appropriate relief in a civil action under this section includes:

(1) Objective verifiable money damages for all injuries, psychological and physical, occasioned by the violation;

(2) Damages up to three times the cost of the abortion or attempted abortion;

(3) Punitive damages; and

(4) Other appropriate relief pursuant to applicable law.

(d) The court shall award reasonable attorney's fees as part of the costs to a prevailing plaintiff in a civil action under this section.

(e) If a defendant in a civil action under this section prevails and the court finds that the plaintiff's suit was frivolous, the court shall award reasonable attorney's fees in favor of the defendant against the plaintiff.

(f) Except as provided in subsection (e), in a civil action under this section, no damages, attorney's fees or other monetary relief may be assessed against the woman upon whom the abortion was performed or attempted."

SECTION 2. Section 453-16, Hawaii Revised Statutes, is amended to read as follows:

"453-16 Intentional termination of pregnancy; penalties; refusal to perform. (a) No abortion shall be performed in this State unless:

(1) The abortion is performed by a licensed physician or surgeon, or by a licensed osteopathic physician and surgeon; [and]

(2) The abortion is performed in a hospital licensed by the department of health or operated by the federal government or an agency thereof, or in a clinic or physician's or osteopathic physician's office[.]; and

(3) The abortion complies with chapter .

(b) [Abortion] "Abortion" shall [mean an operation to intentionally terminate the pregnancy of a nonviable fetus. The termination of a pregnancy of a viable fetus is not included in this section.] have the same meaning as in section -1.

(c) The State shall not deny or interfere with a female's right to choose or obtain an abortion [of a nonviable fetus or an abortion] that is necessary to protect the life [or health] of the female.

(d) Any person who knowingly violates subsection [(a)] (a)(1) or (2) shall be fined not more than $1,000 or imprisoned not more than five years, or both. Any person who violates subsection (a)(3) shall be subject to the penalties established in chapter .

(e) Nothing in this section shall require any hospital or any person to participate in an abortion nor shall any hospital or any person be liable for a refusal."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect on July 1, 2020.

 

INTRODUCED BY:

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Report Title:

Abortion; Pain Capable; Dismemberment; Prohibitions; Exceptions

 

Description:

Prohibits the abortion of a fetus that is capable of feeling pain. Prohibits abortions by dismemberment. Provides certain exceptions. Establishes penalties.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.