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H. 3329
STATUS INFORMATION
General Bill
Sponsors: Rep. Davenport
Document Path: l:\council\bills\nbd\11160ac07.doc
Introduced in the House on January 23, 2007
Currently residing in the House Committee on Judiciary
Summary: Fetal Pain Awareness and Prevention Act
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 1/23/2007 House Introduced and read first time HJ-4 1/23/2007 House Referred to Committee on Judiciary HJ-5
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND CHAPTER 41, TITLE 44, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 7 SO AS TO ENACT THE "FETAL PAIN AWARENESS AND PREVENTION ACT" TO REQUIRE A PHYSICIAN OR OTHER HEALTH CARE PROVIDER TO PROVIDE TO A WOMAN BEFORE SHE UNDERGOES AN ABORTION CERTAIN INFORMATION CONCERNING THE DEVELOPMENT OF THE FETUS AND THE FETUS'S ABILITY TO EXPERIENCE PAIN, TO MAKE MEDICATION AVAILABLE THAT WOULD MINIMIZE OR ALLEVIATE PAIN TO THE FETUS, TO REQUIRE THE WOMAN TO SIGN A FORM THAT SHE HAS RECEIVED THIS INFORMATION AND WHETHER SHE REQUESTED OR REJECTED THE PAIN MEDICATION FOR THE FETUS, TO PROVIDE EXCEPTIONS IN THE CASE OF A MEDICAL EMERGENCY, AND TO PROVIDE PENALTIES FOR VIOLATIONS.
Whereas, the General Assembly finds that:
(1) It is essential to the psychological and physical well-being of a woman considering an abortion that she receive complete and accurate information on the reality and status of her pregnancy and of her unborn child.
(2) The decision to abort "is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences." Planned Parenthood v. Danforth, 428 U.S. 52, 67 (1976).
(3) Adequate and legitimate informed consent includes information which "relates to the consequences to the fetus." Planned Parenthood v. Casey, 505 U.S. 833, 882-883 (1992).
(4) A state may take measures to protect unborn children from suffering pain needlessly during performance of an abortion.
Whereas, based on these findings the General Assembly in enacting this act intends to:
(1) ensure that every woman considering an abortion receive complete information on the reality and status of her pregnancy and of her unborn child and that every woman submitting to an abortion do so only after receiving accurate information on the ability of her unborn child to feel pain;
(2) protect unborn children from a woman's uninformed decision to have an abortion;
(3) take measures to protect unborn children from suffering pain needlessly during performance of an abortion;
(4) reduce "the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed." Planned Parenthood v. Casey, 505 U.S. 833, 882 (1992); and
(5) provide a woman considering an abortion the opportunity to choose anesthesia or analgesia for her unborn child, thereby alleviating or eliminating the pain that an unborn child may feel during an abortion.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "Fetal Pain Awareness and Prevention Act".
SECTION 2. Chapter 41, Title 44, of the 1976 Code is amended by adding:
Section 44-41-710. As used in this article:
(1) 'Abortion' means the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child. Such use, prescription, or means is not an abortion if done with the intent to:
(a) save the life or preserve the health of an unborn child;
(b) remove a dead unborn child caused by spontaneous abortion; or
(c) remove an ectopic pregnancy.
(2) 'Anesthesia' or 'Analgesic' means a drug, administered for medical or surgical purposes, that induces a partial or total loss of sensation.
(3) 'Department' means the Department of Health and Environmental Control.
(4) 'Facility' or 'medical facility' means any public or private hospital, clinic, center, medical school, medical training institution, health care facility, physician's office, infirmary, dispensary, ambulatory surgical treatment center, or other institution or location where medical care is provided to a person.
(5) 'Gestation' means estimated gestational age as determined by the time that has elapsed since the first day of the woman's last menstrual period.
(6) 'Medical emergency' means that condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate termination of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.
(7) 'Pain' means a basic bodily sensation that is induced by a noxious stimulus or stimuli, is received by naked nerve endings, is often characterized by physical discomfort, and can be indicated by observable physiological and behavioral responses.
(8) 'Physician' means a person licensed to practice medicine in this State pursuant to Chapter 47 of Title 40. The term includes medical doctors and doctors of osteopathy.
(9) 'Qualified person' means an agent of the physician who is a psychologist, licensed social worker, licensed professional counselor, registered nurse, or physician.
(10) 'Registered nurse' means a person licensed to practice nursing in this State pursuant to Chapter 33 of Title 40, and certified to perform anesthetic or analgesic services, or both.
(11) 'Unborn child' means a member of the species homo sapiens from fertilization until birth.
Section 44-41-720. (A) Except in the case of a medical emergency, at least twenty-four hours prior to an abortion being performed or induced on an unborn child who is twenty weeks' gestation or more, the physician performing the abortion on the pregnant woman, the referring physician, or the qualified person assisting the physician shall, orally and in person, offer information on fetal pain to every patient. This information and counseling must include, but is not limited to:
(1) that by twenty weeks, the unborn child possesses all anatomical links in its nervous system, including spinal cord, nerve tracts, thalamus, and cortex, that are necessary in order to feel pain;
(2) that an unborn child who is twenty weeks' gestation or more is fully capable of experiencing pain;
(3) a description of the actual steps in the abortion procedure to be performed or induced and at which steps in the abortion procedure the unborn child is capable of feeling pain;
(4) that maternal anesthesia typically offers little pain prevention for the unborn child;
(5) that anesthesia or analgesic is available in order to minimize pain or alleviate pain, or both, to the fetus.
(B) At the woman's request, the physician or registered nurse assisting the physician must administer an anesthetic or analgesic to eliminate or alleviate pain to the fetus caused by the particular method of abortion to be performed or induced.
(C) The administration of anesthesia or analgesic, or both, must be performed in a manner consistent with standard medical practice in the community.
Section 44-41-730. This section does not apply when:
(1) the physician who is to perform the abortion or the referring physician determines, according to his best medical judgment, that:
(a) a medical emergency exists;
(b) the administration of an anesthetic or analgesic would to a medically significant degree decrease the possibility of sustained survival of the fetus apart from the body of the mother, with or without artificial support; or
(c) the administration of an anesthetic or analgesic would increase the risk to the woman's life or physical health; or
(2) the woman, upon being informed of the possibility of pain to the fetus and the availability of anesthesia or analgesics to alleviate such pain, refuses her consent to the administration of such analgesic or anesthetic.
Section 44-41-740. (A) At least twenty-four hours prior to the performance of the abortion, the physician or qualified person assisting the physician shall obtain the woman's signature on a certification form stating the following:
(1) that the woman has been given the information described in Section 44-41-720;
(2) that the woman has been given the choice to have anesthesia or an analgesic administered to the unborn child; and
(3) that the woman either requested administration of anesthesia or an analgesic or opted not to receive administration of anesthesia or an analgesic.
(B) Before the abortion is performed or induced, the physician who is to perform or induce the abortion shall receive a copy of the written certification prescribed by this section. The physician shall retain a copy of the signed certification form in the woman's medical record.
Section 44-41-750. When a medical emergency compels the performance of an abortion, the physician shall inform the woman, before the abortion if possible, of the medical indications supporting the physician's judgment that an immediate abortion is necessary to avert her death or that any delay will create serious risk of substantial and irreversible impairment of a major bodily function.
Section 44-41-760. The department shall enforce the provisions of this article at all facilities and medical facilities that provide abortion services.
Section 44-41-770. (A) In addition to any and all remedies available under the common or statutory law of this State, failure to comply with the requirements of this article provides a basis for a:
(1) civil malpractice action for actual and punitive damages; or
(2) professional disciplinary action.
(B) No civil liability may be assessed against the female upon whom the abortion is performed.
(C) When requested, the court shall allow a woman to proceed using solely her initials or a pseudonym and may close any proceedings in the case and enter other protective orders to preserve the privacy of the woman upon whom the abortion was performed.
(D) If judgment is rendered in favor of the plaintiff, the court also shall render judgment for a reasonable attorney's fee in favor of the plaintiff against the defendant.
(E) If judgment is rendered in favor of the defendant and the court finds that the plaintiff's suit was frivolous and brought in bad faith, the court also shall render judgment for a reasonable attorney's fee in favor of the defendant against the plaintiff.
Section 44-41-780. (A) A person who knowingly or recklessly performs an abortion in violation of this article is guilty of a misdemeanor and, upon conviction, must be fined no more than five thousand dollars.
(B) No criminal penalty may be assessed against the female upon whom the abortion is performed.
Section 44-41-790. (A) Nothing in this article may be construed as creating or recognizing a right to abortion.
(B) It is not the intention of this article to make lawful an abortion that is currently unlawful."
SECTION 3. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 4. This act takes effect upon approval by the Governor.
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