Reference is to the bill as introduced.
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/ SECTION 1. Chapter 41, Title 44 of the 1976 Code is amended by adding:
Section 44-41-410. This article may be cited as the 'South Carolina Pain-Capable Unborn Child Protection Act'.
Section 44-41-420. The
General Assembly makes the following findings:
(1) Pain receptors
(nociceptors) are present throughout the unborn child's entire
body and nerves link these receptors to the brain's thalamus and
subcortical plate by no later than twenty weeks.
(2) By eight weeks
after fertilization, the unborn child reacts to touch. After
twenty weeks, the unborn child reacts to stimuli that would be
recognized as painful if applied to an adult human, for example,
by recoiling.
(3) In the unborn
child, application of such painful stimuli is associated with
significant increases in stress hormones known as the stress
response.
(4) Subjection to such
painful stimuli is associated with long-term harmful
neurodevelopmental effects, such as altered pain sensitivity
and, possibly, emotional, behavioral, and learning disabilities
later in life.
(5) For the purposes of
surgery on unborn children, fetal anesthesia is routinely
administered and is associated with a decrease in stress
hormones compared to their levels when painful stimuli are
applied without such anesthesia.
(6) The position,
asserted by some medical experts, that the unborn child is
incapable of experiencing pain until a point later in pregnancy
than twenty weeks after fertilization predominately rests on the
assumption that the ability to experience pain depends on the
cerebral cortex and requires nerve connections between the
thalamus and the cortex. However, recent medical research and
analysis, especially since 2007, provides strong evidence for
the conclusion that a functioning cortex is not necessary to
experience pain.
(7) Substantial
evidence indicates that children born missing the bulk of the
cerebral cortex, those with hydranencephaly, nevertheless
experience pain.
(8) In adults,
stimulation or ablation of the cerebral cortex does not alter
pain perception, while stimulation or ablation of the thalamus
does.
(9) Substantial
evidence indicates that structures used for pain processing in
early development differ from those of adults, using different
neural elements available at specific times during development,
such as the subcortical plate, to fulfill the role of pain
processing.
(10) The position,
asserted by some medical experts, that the unborn child remains
in a coma-like sleep state that precludes the unborn child
experiencing pain is inconsistent with the documented reaction
of unborn children to painful stimuli and with the experience of
fetal surgeons who have found it necessary to sedate the unborn
child with anesthesia to prevent the unborn child from thrashing
about in reaction to invasive surgery.
(11) Consequently,
there is substantial medical evidence that an unborn child is
capable of experiencing pain by twenty weeks after
fertilization.
(12) It is the purpose
of the State to assert a compelling state interest in protecting
the lives of unborn children from the stage at which substantial
medical evidence indicates that they are capable of feeling
pain.
(13) South Carolina's
compelling state interest in protecting the lives of unborn
children from the stage at which substantial medical evidence
indicates that they are capable of feeling pain is intended to
be separate from and independent of South Carolina's compelling
state interest in protecting the lives of unborn children from
the stage of viability, and neither state interest is intended
to replace the other.
(14) Mindful of Leavitt
v. Jane L., 518 U.S. 137 (1996), in which in the context of
determining the severability of a state statute regulating
abortion, the United States Supreme Court noted that an explicit
statement of legislative intent specifically made applicable to
a particular statute is of greater weight than a general savings
or severability clause, it is the intent of the State that if
any one or more provisions, sections, subsections, sentences,
clauses, phrases or words of this article or the application
thereof to any person or circumstance is found to be
unconstitutional, the same is hereby declared to be severable
and the balance of this article shall remain effective
notwithstanding such unconstitutionality. Moreover, the State
declares that it would have passed this article, and each
provision, section, subsection, sentence, clause, phrase or word
thereof, irrespective of the fact that any one or more
provisions, sections, subsections, sentences, clauses, phrases
or words, or any of their applications, were to be declared
unconstitutional.
Section 44-41-430. For
the purposes of this article:
(1) 'Abortion' means
the use or prescription of any instrument, medicine, drug, or
any other substance or device:
(a)
to intentionally kill the unborn child of a woman known to
be pregnant; or
(b)
to intentionally prematurely terminate the pregnancy of a
woman known to be pregnant, with an intention other than to
increase the probability of a live birth or of preserving the
life or health of the child after live birth.
(2) 'Attempt to perform
or induce an abortion' means an act, or an omission of a
statutorily required act, that, under the circumstances as the
actor believes them to be, constitutes a substantial step in a
course of conduct planned to culminate in the performance or
induction of an abortion in this State in violation of this
article.
(3) 'Department' means
the South Carolina Department of Health and Environmental
Control.
(4) 'Fertilization'
means the fusion of a human spermatozoon with a human ovum.
(5) 'Medical emergency'
means a condition that, in reasonable medical judgment, so
complicates the medical condition of the pregnant woman that it
necessitates the immediate abortion of her pregnancy without
first determining post-fertilization age to avert her death or
for which the delay necessary to determine post-fertilization
age will create serious risk of substantial and irreversible
physical impairment of a major bodily function, not including
psychological or emotional conditions. No condition must be
considered a medical emergency if based on a claim or diagnosis
that the woman will engage in conduct which she intends to
result in her death or in substantial and irreversible physical
impairment of a major bodily function.
(6) 'Physician' means
any person licensed to practice medicine and surgery or
osteopathic medicine and surgery in this State.
(7) 'Post-fertilization
age' means the age of the unborn child as calculated from the
fusion of a human spermatozoon with a human ovum.
(8) 'Probable
post-fertilization age of the unborn child' means what, 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.
(9) 'Reasonable medical
judgment' means a medical judgment that would be made by a
reasonably prudent physician, knowledgeable about the case and
the treatment possibilities with respect to the medical
conditions involved.
(10) 'Unborn child' or
'fetus' each means an individual organism of the species homo
sapiens from fertilization until live birth.
(11) 'Woman' means a
female human being whether or not she has reached the age of
majority.
Section 44-41-440. (A)
Except in the case of a medical emergency,
no abortion must be performed or induced or be attempted to be
performed or induced unless the physician performing or inducing
it has first made a determination of the probable
post-fertilization age of the unborn child or relied upon such a
determination made by another physician. In making such a
determination, the physician shall make such inquiries of the
woman and perform or cause to be performed such medical
examinations and tests as a reasonably prudent physician,
knowledgeable about the case and the medical conditions
involved, would consider necessary to perform in making an
accurate diagnosis with respect to post-fertilization age.
(B) Failure by any
physician to conform to any requirement of this section
constitutes 'unprofessional conduct' pursuant to Section
40-47-20(53).
Section 44-41-450. (A)
No person shall perform or induce or attempt
to perform or induce an abortion upon a woman when it has been
determined, by the physician performing or inducing or
attempting to perform or induce the abortion or by another
physician upon whose determination that physician relies, that
the probable post-fertilization age of the woman's unborn child
is twenty or more weeks, unless, in reasonable medical judgment,
she has a condition which so complicates her medical condition
as to necessitate the abortion of her pregnancy to avert her
death or to avert serious risk of substantial and irreversible
physical impairment of a major bodily function, not including
psychological or emotional conditions. No such greater risk
must be considered to exist if it is based on a claim or
diagnosis that the woman will engage in conduct which she
intends to result in her death or in substantial and
irreversible physical impairment of a major bodily function.
(B) When an abortion
upon a woman whose unborn child has been determined to have a
probable post-fertilization age of twenty or more weeks is not
prohibited by subsection (A), the physician shall terminate the
pregnancy in the manner which, in reasonable medical judgment,
provides the best opportunity for the unborn child to survive,
unless, in reasonable medical judgment, termination of the
pregnancy in that manner would pose a greater risk either of the
death of the pregnant woman or of the substantial and
irreversible physical impairment of a major bodily function, not
including psychological or emotional conditions, of the woman
than would other available methods. No such greater risk must
be considered to exist if it is based on a claim or diagnosis
that the woman will engage in conduct which she intends to
result in her death or in substantial and irreversible physical
impairment of a major bodily function.
Section 44-41-460. (A)
Any abortion performed in this State must be
reported by the performing physician on the standard form for
reporting abortions to the state registrar, Department of Health
and Environmental Control, within seven days after the abortion
is performed. The names to the patient and physician may not be
reported on the form or otherwise disclosed to the state
registrar. The form must indicate from whom consent was
obtained or circumstances waiving consent and must include:
(1)
Post-fertilization age:
(a)
if a determination of probable post-fertilization age was
made, whether ultrasound was employed in making the
determination, and the week of probable post-fertilization age
determined; or
(b)
if a determination of probable post-fertilization age was
not made, the basis of the determination that a medical
emergency existed.
(2)
Method of abortion, of which the following was
employed:
(a)
medication abortion such as, but not limited to,
mifepristone/misoprostol or methotrexate/misoprostol;
(b)
manual vacuum aspiration;
(c)
electrical vacuum aspiration;
(d)
dilation and evacuation;
(e)
combined induction abortion and dilation and
evacuation;
(f)
induction abortion with prostaglandins;
(g)
induction abortion with intra-amniotic instillation such
as, but not limited to, saline or urea;
(h)
induction abortion; and
(i)
intact dilation and extraction
(partial-birth).
(3)
Whether an intrafetal injection was used in an attempt to
induce fetal demise such as, but not limited to, intrafetal
potassium chloride or digoxin.
(4)
Age of the patient.
(5)
If the probable post-fertilization age was determined to
be twenty or more weeks, the basis of the determination that the
pregnant woman had a condition which so complicated her medical
condition as to necessitate the abortion of her pregnancy to
avert her death or to avert serious risk of substantial and
irreversible physical impairment of a major bodily function, not
including psychological or emotional conditions.
(6)
If the probable post-fertilization age was determined to
be twenty or more weeks, whether or not the method of abortion
used was one that, in reasonable medical judgment, provided the
best opportunity for the unborn child to survive and, if such a
method was not used, the basis of the determination that
termination of the pregnancy in that manner would pose a greater
risk either of the death of the pregnant woman or of the
substantial and irreversible physical impairment of a major
bodily function, not including psychological or emotional
conditions, of the woman than would other available methods.
(B) Reports required by
subsection (A) shall not contain the name or the address of the
patient whose pregnancy was terminated, nor shall the report
contain any other information identifying the patient, except
that each report shall contain a unique medical record
identifying number, to enable matching the report to the
patient's medical records. Such reports must be maintained in
strict confidence by the department, must not be available for
public inspection, and must not be made available except:
(1)
to the Attorney General or solicitor with appropriate
jurisdiction pursuant to a criminal investigation;
(2)
to the Attorney General or solicitor pursuant to a civil
investigation of the grounds for an action under Section
44-41-480(B); or
(3)
pursuant to court order in an action under Section
44-41-480.
(C) By June thirtieth
of each year, the department shall issue a public report
providing statistics for the previous calendar year compiled
from all of the reports covering that year submitted in
accordance with this section for each of the items listed in
subsection (A). Each such report also shall provide the
statistics for all previous calendar years during which this
section was in effect, adjusted to reflect any additional
information from late or corrected reports. The department
shall take care to 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, induced, or attempted.
(D) Any physician who
fails to submit a report by the end of thirty days following the
due date must be subject to a late fee of one thousand dollars
for each additional thirty-day period or portion of a thirty-day
period the report is overdue. Any physician required to report
in accordance with this article who has not submitted a report,
or has submitted only an incomplete report, more than six months
following the due date, may, in an action brought by the
department, be directed by a court of competent jurisdiction to
submit a complete report within a period stated by court order
or be subject to civil contempt. Intentional or reckless
failure by any physician to conform to any requirement of this
section, other than late filing of a report, constitutes
'unprofessional conduct' pursuant to Section 40-47-20(53).
Intentional or reckless failure by any physician to submit a
complete report in accordance with a court order constitutes
'unprofessional conduct' pursuant to Section 40-47-20(53).
Intentional or reckless falsification of any report required
under this section is a misdemeanor punishable by not more than
one year in prison.
(E) Within ninety days
of the effective date of this article, the Department of Health
and Human Services shall adopt and promulgate forms and
regulations to assist in compliance with this section.
Subsection (A) shall take effect so as to require reports
regarding all abortions performed or induced on and after the
first day of the first calendar month following the effective
date of such rules.
Section 44-41-470. Any person who intentionally or knowingly fails to conform to any requirement in Section 44-41-440 is guilty of a misdemeanor and, upon conviction, must be fined not less than two thousand dollars nor more than ten thousand dollars or imprisoned for not more than three years, or both. No part of the minimum fine may be suspended. For conviction of a third or subsequent offense, the sentence must be imprisonment for not less than sixty days nor more than three years, no part of which may be suspended.
Section 44-41-480. (A)
Any woman upon whom an abortion has been
performed or induced in violation of this article, or the father
of the unborn child who was the subject of such an abortion, may
maintain an action against the person who performed or induced
the abortion in intentional or reckless violation of this
article for actual and punitive damages. Any woman upon whom an
abortion has been attempted in violation of this article may
maintain an action against the person who attempted to perform
or induce the abortion in an intentional or reckless violation
of this article for actual and punitive damages.
(B) A cause of action
for injunctive relief against any person who has intentionally
or recklessly violated this article may be maintained by the
woman upon whom an abortion was performed or induced or
attempted to be performed or induced in violation of this
article; by any person who is the spouse, parent, sibling or
guardian of, or a current or former licensed health care
provider of, the woman upon whom an abortion has been performed
or induced or attempted to be performed or induced in violation
of this article; by a county attorney with appropriate
jurisdiction; or by the Attorney General. The injunction shall
prevent the abortion provider from performing or inducing or
attempting to perform or induce further abortions in violation
of this article in this State.
(C) If judgment is
rendered in favor of the plaintiff in an action described in
this section, the court also shall render judgment for a
reasonable attorney's fee in favor of the plaintiff against the
defendant.
(D) No damages or
attorney's fee may be assessed against the woman upon whom an
abortion was performed or induced or attempted to be performed
or induced.
Section 44-41-490. In every civil or criminal proceeding or action brought under this article, the court shall rule whether the anonymity of any woman upon whom an abortion has been performed or induced or attempted to be performed or induced must be preserved from public disclosure if she does not give her consent to such disclosure. The court, upon motion or sua sponte, shall make such a ruling and, upon determining that her anonymity should be preserved, shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity from public disclosure. In the absence of written consent of the woman upon whom an abortion has been performed or induced or attempted to be performed or induced, anyone, other than a public official, who brings an action under Section 44-41-480(A) or (B) shall do so under a pseudonym. This section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant or from attorneys for the defendant.
Section 44-41-500. This article must not be construed to repeal, by implication or otherwise, Section 44-41-20 or any otherwise applicable provision of South Carolina law regulating or restricting abortion. An abortion that complies with this article but violates the provisions of Section 44-41-20 or any otherwise applicable provision of South Carolina law must be considered unlawful as provided in such provision. An abortion that complies with the provisions of Section 44-41-20 or any otherwise applicable provision of South Carolina law regulating or restricting abortion but violates this article must be considered unlawful as provided in this article. If some or all of the provisions of this article are ever temporarily or permanently restrained or enjoined by judicial order, all other provisions of South Carolina law regulating or restricting abortion must be enforced as though such restrained or enjoined provisions had not been adopted; provided, however, that whenever such temporary or permanent restraining order of injunction is stayed or dissolved, or otherwise ceases to have effect, such provisions shall have full force and effect."
SECTION 2. This act takes effect upon approval of the Governor. /
Renumber sections to conform.
Amend title to conform.