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H.B. 241
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PARTIAL BIRTH ABORTION AMENDMENTS
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2003 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Mike Thompson
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This act modifies the Health and Human Services Code. This act adds a definition of
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partial birth abortion to the definition section. This act removes provisions dealing with
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partial birth abortion procedures from one section and creates a section that prohibits
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these procedures. This act provides and sets limitations on remedies for a father or the
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maternal grandparents of the fetus. This act also provides that a physician is entitled to a
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hearing before the State Medical Board to determine the necessity of the physician's
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conduct.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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76-7-301, as last amended by Chapter 70, Laws of Utah 1993
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76-7-310.5, as enacted by Chapter 267, Laws of Utah 1996
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76-7-314, as last amended by Chapter 267, Laws of Utah 1996
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76-7-315, as last amended by Chapter 5, Laws of Utah 1996, Second Special Session
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ENACTS:
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76-7-326, Utah Code Annotated 1953
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76-7-327, Utah Code Annotated 1953
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76-7-328, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
76-7-301
is amended to read:
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76-7-301. Definitions.
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As used in this part:
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(1) "Abortion" means the intentional termination or attempted termination of human
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pregnancy after implantation of a fertilized ovum, and includes any and all procedures
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undertaken to kill a live unborn child and includes all procedures undertaken to produce a
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miscarriage. "Abortion" does not include removal of a dead unborn child.
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(2) "Medical emergency" means that condition which, on the basis of the physician's
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good faith clinical judgment, so [complicates the medical condition] threatens the life of a
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pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death,
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or for which a delay will create serious risk of substantial and irreversible impairment of major
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bodily function.
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(3) "Partial birth abortion" means an abortion in which:
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(a) the person performing the abortion deliberately and intentionally vaginally delivers
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a living fetus until, in the case of a head first presentation, the entire fetal head is outside the
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body of the mother, or in the case of breech presentation, any part of the fetal trunk past the
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navel is outside the body of the mother for the purpose of performing an overt act that the
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person knows will kill the partially delivered living fetus; and
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(b) performs the overt act, other than completion of delivery, that kills the partially
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living fetus.
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[(3)] (4) "Physician" means a medical doctor licensed to practice medicine and surgery
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under the Utah Medical Practice Act, a physician in the employment of the government of the
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United States who is similarly qualified, or an osteopathic physician licensed to practice
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medicine under the Utah Osteopathic Medicine Licensing Act.
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[(4)] (5) "Hospital" means a general hospital licensed by the Department of Health
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according to Title 26, Chapter 21, Health Care Facility Licensing and Inspection Act, and
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includes a clinic or other medical facility to the extent that such clinic or other medical facility
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provides equipment and personnel sufficient in quantity and quality to provide the same degree
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of safety to the pregnant woman and the unborn child as would be provided for the particular
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medical procedures undertaken by a general hospital licensed by the Department of Health. It
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shall be the responsibility of the Department of Health to determine if such clinic or other
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medical facility so qualifies and to so certify.
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Section 2.
Section
76-7-310.5
is amended to read:
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76-7-310.5. Prohibition of specified abortion procedures.
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(1) As used in this section[: (a) "Partial birth abortion" or "dilation and extraction
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procedure" means the termination of pregnancy by partially vaginally delivering a living intact
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fetus, purposefully inserting an instrument into the skull of the intact fetus, and utilizing a
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suction device to remove the skull contents. This definition does not include the dilation and
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evacuation procedure involving dismemberment prior to removal, the suction curettage
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procedure, or the suction aspiration procedure for abortion. (b) "Saline], "saline abortion
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procedure" means performance of amniocentesis and injection of saline into the amniotic sac
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within the uterine cavity.
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(2) (a) After viability has been determined in accordance with Subsection [(b)] (1), no
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person may knowingly perform a [partial birth abortion or] dilation and extraction procedure[,]
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or a saline abortion procedure, unless all other available abortion procedures would pose a risk
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to the life or the health of the pregnant woman.
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(b) For purposes of this section determination of viability shall be made by the
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physician, based upon his own best clinical judgment. The physician shall determine whether,
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based on the particular facts of a woman's pregnancy that are known to him, and in light of
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medical technology and information reasonably available to him, there is a realistic possibility
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of maintaining and nourishing a life outside of the womb, with or without temporary, artificial
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life-sustaining support.
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(3) Intentional, knowing, and willful violation of this section is a third degree felony.
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Section 3.
Section
76-7-314
is amended to read:
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76-7-314. Violations of abortion laws -- Classifications.
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(1) (a) Any person who intentionally performs an abortion other than as authorized by
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this part is guilty of a felony of the third degree.
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(b) Notwithstanding any other provision of law, a woman who seeks to have or obtains
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an abortion for herself is not criminally liable.
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(2) A willful violation of Section
76-7-307
,
76-7-308
,
76-7-310
,
76-7-310.5
,
76-7-311
,
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[or ]
76-7-312
, or
76-7-326
is a felony of the third degree.
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(3) A violation of any other provision of this part is a class A misdemeanor.
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Section 4.
Section
76-7-315
is amended to read:
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76-7-315. Exceptions to certain requirements in serious medical emergencies.
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When due to a serious medical emergency, time does not permit compliance with
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Section
76-7-302
,
76-7-304
,
76-7-305
,
76-7-305.5
, [or]
76-7-310.5
, or
76-7-326
the provisions
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of those sections do not apply.
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Section 5.
Section
76-7-326
is enacted to read:
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76-7-326. Partial birth abortions prohibited.
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(1) Any physician who knowingly performs a partial birth abortion and thereby kills a
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human fetus shall be fined under this chapter. This section does not apply to a partial birth
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abortion that is necessary to save the life of a mother whose life is endangered by a physical
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disorder, physical illness, or physical injury, including a life endangering physical condition
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caused by or arising from the pregnancy itself.
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(2) A woman upon which a partial birth abortion is performed may not be prosecuted
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under this chapter for a conspiracy to violate this section.
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Section 6.
Section
76-7-327
is enacted to read:
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76-7-327. Remedies for father or maternal grandparents.
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(1) The father, if married to the mother at the time she receives a partial birth abortion
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procedure, and if the mother has not attained the age of 18 years at the time of the abortion, the
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maternal grandparents of the fetus, may in a civil action obtain appropriate relief, unless the
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pregnancy resulted from the plaintiff's criminal conduct or the plaintiff consented to the
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abortion.
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(2) Such relief shall include:
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(a) money damages for all injuries, psychological and physical, occasioned by the
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violation of this section; and
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(b) statutory damages equal to three times the cost of the partial birth abortion
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procedure.
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Section 7.
Section
76-7-328
is enacted to read:
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76-7-328. Hearing to determine necessity of physician's conduct.
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(1) A physician accused of an offense under this section may seek a hearing before the
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State Medical Board on whether the physician's conduct was necessary to save the life of the
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mother whose life was endangered by a physical disorder, physical illness, or physical injury,
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including a life endangering physical condition caused by or arising from the pregnancy itself.
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(2) The findings on the issue of necessity are admissible on that issue at trial. Upon a
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motion from the physician, the court must delay the beginning of the trial for not more than 30
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days to permit such a hearing to take place.
Legislative Review Note
as of 1-30-03 9:07 AM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.
Office of Legislative Research and General Counsel
REVISED - Legislative Review Note
as of 2-17-03 9:00 AM
This bill raises the following constitutional or statutory concerns:
The standard for judging whether a partial birth abortion is constitutional was outlined by the United States
Supreme Court on June 28, 2000. See, Stenberg v. Carhart, 530 U.S. 914, 120 S. Ct. 2597. In
Sternberg, the Nebraska statute was held to be unconstitutional for at least two independent reasons: first,
because the law lacked any exception for the preservation of the health of the woman, and second, because
it imposed an undue burden on a woman's ability to choose a partial birth abortion, thereby unduly
burdening the right to choose abortion itself. Sternberg, 530 U.S. at 938 (citing Planned Parenthood of
Southeastern Pa. v. Casey, 505 U.S. 833, 874 (1992)).
While it appears this statute would probably satisfy the first standard, it is possible that a court would find
the legislative prohibition of partial birth abortion procedures place an undue burden upon a woman's right
to choose, and may be unconstitutional.