MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Public Health and Welfare

By: Senator(s) White (29th)

AN ACT TO BAN THE USE OF THE DILATION AND EXTRACTION METHOD OF REMOVING THE BRAIN OF AN UNBORN CHILD FOR ABORTION EXCEPT TO SAVE THE LIFE OF THE MOTHER OR TO PREVENT A SUBSTANTIAL AND IRREVERSIBLE LOSS OF A MAJOR BODILY FUNCTION; TO REQUIRE THAT A VIABILITY TEST BE PERFORMED ON AN UNBORN CHILD; TO CREATE THE OFFENSE OF USING THE DILATION AND EXTRACTION METHOD AND OF TERMINATING AN UNBORN CHILD AFTER VIABILITY; AND FOR RELATED PURPOSES. 

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

SECTION 1. (1) As used in this section, "dilation and extraction procedure" means the termination of a human pregnancy by purposely inserting a suction device into the skull of a fetus to remove the brain. "Dilation and extraction procedure" does not include either the suction curettage procedure of abortion or the suction aspiration procedure of abortion.

(2) No person shall knowingly perform or attempt to perform a dilation and extraction procedure upon a pregnant woman.

(3) It is an affirmative defense to a violation of this section that all other available abortion procedures would pose a greater risk to the health of the pregnant woman than the risk posed by the dilation and extraction procedure. If a person charged with a violation of this section presents prima facie evidence relative to the affirmative defense in this section, the prosecution, in addition to proving all elements of the violation by proof beyond a reasonable doubt, has the burden of proving by proof beyond a reasonable doubt that at least one other available abortion procedure would not pose a greater risk to the health of the pregnant woman than the risk posed by the dilation and extraction procedure performed or attempted to be performed by the person charged with the violation of this section.

(4) Whoever violates this section is guilty of performing an unlawful abortion procedure, which shall be manslaughter.

SECTION 2. (1) As used in this section, the term:

(a) "Medical emergency" means a condition that a pregnant woman's physician determines, in good faith and in the exercise of reasonable medical judgment, so complicates the woman's pregnancy as to necessitate the immediate performance or inducement of an abortion in order to prevent the death of the pregnant woman or to avoid a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman that delay in the performance or inducement of the abortion would create.

(b) "Serious risk of the substantial and irreversible impairment of a major bodily function" means any medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function, including, but not limited to, the following conditions:

(i) Pre-eclampsia;

(ii) Inevitable abortion;

(iii) Prematurely ruptured membrane;

(iv) Diabetes;

(v) Multiple sclerosis.

(c) "Unborn human" means an individual organism of the species homo sapiens from fertilization until live birth.

(d) "Viable" means the stage of development of a human fetus at which in the determination of a physician, based on the particular facts of a woman's pregnancy that are known to the physician and in light of medical technology and information reasonably available to the physician, there is a realistic possibility of the maintaining and nourishing of a life outside of the womb with or without temporary artificial life-sustaining support.

(2) No person shall purposely perform or induce or attempt to perform or induce an abortion upon a pregnant woman if the unborn human is viable, unless either of the following applies:

(a) The abortion is performed or induced or attempted to be performed or induced by a physician and that physician determines, in good faith and in the exercise of reasonable medical judgment, that the abortion is necessary to prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.

(b) The abortion is performed or induced or attempted to be performed or induced by a physician and that physician determines, in good faith and in the exercise of reasonable medical judgment, after making a determination relative to the viability of the unborn human in conformity with this section, that the unborn human is not viable.

(3) Except as provided in subsection (4) of this section, no physician shall purposely perform or induce or attempt to perform or induce an abortion upon a pregnant woman when the unborn human is viable and when the physician has determined, in good faith and in the exercise of reasonable medical judgment, that the abortion is necessary to prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman, unless each of the following conditions is satisfied:

(a) The physician who performs or induces or attempts to perform or induce the abortion certifies in writing that that physician has determined, in good faith and in the exercise of reasonable medical judgment, that the abortion is necessary to prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.

(b) The determination of the physician who performs or induces or attempts to perform or induce the abortion that is described in paragraph (a) of this section is concurred in by at least one other physician who certifies in writing that the concurring physician has determined, in good faith, in the exercise of reasonable medical judgment, and following a review of the available medical records of and any available tests results pertaining to the pregnant woman, that the abortion is necessary to prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.

(c) The abortion is performed or induced or attempted to be performed or induced in a health care facility that has or has access to appropriate neonatal services for premature infants.

(d) The physician who performs or induces or attempts to perform or induce the abortion terminates or attempts to terminate the pregnancy in the manner that provides the best opportunity for the unborn human to survive, unless that physician determines, in good faith and in the exercise of reasonable medical judgment, that the termination of the pregnancy in that manner poses a significantly greater risk of the death of the pregnant woman or serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman than would other available methods of abortion.

(e) The physician who performs or induces or attempts to perform or induce the abortion has arranged for the attendance in the same room in which the abortion is to be performed or induced or attempted to be performed or induced of at least one other physician who is to take control of, provide immediate medical care for, and take all reasonable steps necessary to preserve the life and health of the unborn human immediately upon the unborn human's complete expulsion or extraction from the pregnant woman.

(4) This section does not prohibit the performance or inducement or an attempted performance or inducement of an abortion without prior satisfaction of each of the conditions described in subsection (3) of this section if the physician who performs or induces or attempts to perform or induce the abortion determines, in good faith and in the exercise of reasonable medical judgment, that a medical emergency exists that prevents compliance with one or more of those conditions.

(5) For purposes of this section, it shall be rebuttably presumed that an unborn child of at least twenty-four (24) weeks of gestational age is viable.

(6) Whoever violates subsection (2) is guilty of terminating or attempting to terminate a human pregnancy after viability, which shall be punished as provided in Section 97-3-3, Mississippi Code of 1972.

(7)(a) Except as provided in paragraph (c) of this subsection, no physician shall perform or induce or attempt to perform or induce an abortion upon a pregnant woman after the beginning of her twenty-second week of pregnancy unless, prior to the performance or inducement of the abortion or the attempt to perform or induce the abortion, the physician determines, in good faith and in the exercise of reasonable medical judgment, that the unborn human is not viable, and the physician makes that determination after performing a medical examination of the pregnant woman and after performing or causing the performing of gestational age, weight, lung maturity or other tests of the unborn human that a reasonable physician making a determination as to whether an unborn human is or is not viable would perform or cause to be performed.

(b) Except as provided in paragraph (c) of this subsection, no physician shall perform or induce or attempt to perform or induce an abortion upon a pregnant woman after the beginning of her twenty-second week of pregnancy without first entering the determination described in paragraph (a) of this subsection and the associated findings of the medical examination and tests described in that division in the medical record of the pregnant woman.

(c) Paragraphs (a) and (b) of this subsection do not prohibit a physician from performing or inducing or attempting to perform or induce an abortion upon a pregnant woman after the beginning of her twenty-second week of pregnancy without making the determination described in paragraph (a) of this subsection or without making the entry described in paragraph (b) of this subsection if a medical emergency exists.

(d) Whoever violates this subsection is guilty of failure to perform viability testing, and is punishable as provided in Section 97-3-5, Mississippi Code of 1972.

SECTION 3. This act shall take effect and be in force from and after July 1, 1997.