MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Public Health and Welfare

By: Senator(s) White (29th), Furniss, Nunnelee

AN ACT TO PROHIBIT AND PRESCRIBE CRIMINAL PENALTIES FOR PERFORMING PARTIAL-BIRTH ABORTIONS, TO REQUIRE REVOCATION OF THE LICENSE OF THE PHYSICIAN AND THE FACILITY IN WHICH SUCH PARTIAL-BIRTH ABORTION OCCURRED, TO PROVIDE THAT ANYONE ASSISTING THE PHYSICIAN IS GUILTY OF ACCESSORY BEFORE THE FACT, AND TO CREATE A CIVIL ACTION WHICH MAY BE BROUGHT BY THE FATHER AND THE MATERNAL GRANDPARENTS OF THE ABORTED FETUS IN SUCH SITUATIONS; TO PROHIBIT AND PRESCRIBE CRIMINAL PENALTIES FOR PERFORMING POST-VIABILITY ABORTIONS, TO PRESCRIBE CONDITIONS FOR REGULATED ABORTIONS, TO REQUIRE VIABILITY TESTING OF THE CHILD PRIOR TO PERFORMING AN ABORTION; AND FOR RELATED PURPOSES. 

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

SECTION 1. (1) Whoever knowingly performs a partial-birth abortion and thereby kills a human fetus shall, upon conviction, be fined not to exceed One Hundred Thousand Dollars ($100,000.00) or imprisoned not more than two (2) years, or both.

(2) As used in this section, the term "partial-birth abortion" means an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.

(3)(a) The father, and if the mother has not attained the age of eighteen (18) years at the time of the abortion, the maternal grandparents of the fetus, may in a civil action obtain appropriate relief, unless the pregnancy resulted from the plaintiff's criminal conduct or the plaintiff consented to the abortion.

(b) Such relief shall include:

(i) Money damages for all injuries, psychological and physical, occasioned by the violation of this section; and

(ii) Statutory damages equal to three (3) times the cost of the partial-birth abortion.

(c) A woman upon whom a partial-birth abortion is performed may not be prosecuted under this subsection for a conspiracy to violate this subsection.

(d) It is an affirmative defense to a prosecution or a civil action under this section, which must be proved by a preponderance of the evidence, that the partial-birth abortion was performed by a physician who reasonably believed:

(i) The partial-birth abortion was necessary to save the life of the mother; and

(ii) No other procedure would suffice for that purpose.

SECTION 2. (1) For purposes of this act:

(a) "Abortion" means the use of any means 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.

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

(c) "Gestational age" means the age of the unborn child as calculated from the first day of the last menstrual period of the pregnant woman.

(d) "Hospital" means an institution licensed pursuant to the provisions of the law of this state.

(e) "Live birth," when used with regard to a human being, means that the human being was completely expelled or extracted from his or her mother and after such separation breathed or showed evidence of any of the following: beating of the heart, pulsation of the umbilical cord, definite movement of voluntary muscles, or any brain-wave activity.

(f) "Medical emergency" means that condition which, on the basis of the physician's good faith clinical judgment, so complicates a pregnancy as to necessitate the immediate abortion 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.

(g) "Pregnant" means that female reproductive condition of having a developing fetus in the body and commences with fertilization.

(h) "Unborn child" and "fetus" each means an individual organism of the species homo sapiens from fertilization until live birth.

(i) "Viable" and "viability" each means that stage of fetal development when, in the judgment of the physician based upon the particular facts of the case before him or her and in light of the most advanced medical technology and information available to him or her, there is a reasonable likelihood of sustained survival of the unborn child outside the body of his or her mother, with or without artificial support.

(2) Except as provided in subsection (3), no person shall intentionally, knowingly or recklessly perform or induce an abortion when the unborn child is viable.

(3)(a) It shall not be a violation of subsection (2) if an abortion is performed by a physician and that physician reasonably believes that it is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman. No abortion shall be deemed authorized under this paragraph if performed on the basis of a claim or a diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible impairment of a major bodily function.

(b) It shall not be a violation of subsection (2) if the abortion is performed by a physician and that physician reasonably believes, after making a determination of the viability of the unborn child in compliance with subsection (6) (relating to the determination of viability), that the unborn child is not viable.

(4) Except in the case of a medical emergency which, in the reasonable medical judgment of the physician performing the abortion, prevents compliance with a particular requirement of this subsection, no abortion which is authorized under subsection (3)(a) shall be performed unless each of the following conditions is met:

(a) The physician performing the abortion certifies in writing that, based upon his or her medical examination of the pregnant woman and his or her medical judgment, the abortion is necessary to prevent either the death of the pregnant woman or serious risk of substantial and irreversible impairment of a major bodily function.

(b) Such physician's judgment with respect to the necessity for the abortion has been concurred in by one other licensed physician who certifies in writing that, based upon his or her separate personal medical examination of the pregnant woman and his or her medical judgment, the abortion is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman.

(c) The abortion is performed in a hospital.

(d) The physician terminates the pregnancy in a manner which provides the best opportunity for the unborn child to survive, unless the physician determines, in his or her good faith medical judgment, that termination of the pregnancy in that manner poses a significantly greater risk either of the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman than would other available methods.

(e) The physician performing the abortion arranges for the attendance, in the same room in which the abortion is to be completed, of a second physician who shall take control of the child immediately after complete extraction from the mother and shall provide immediate medical care for the child, taking all reasonable steps necessary to preserve the child's life and health.

(5) Any person who violates subsection (2) or (4) of this section shall, upon conviction, be fined not to exceed One Hundred thousand Dollars ($100,000.00) or imprisoned not more than two (2) years, or both.

(6) Except in the case of a medical emergency, prior to performing an abortion upon a woman subsequent to her first nineteen (19) weeks of pregnancy, the physician shall determine whether, in his or her good faith medical judgment, the child is viable. When the physician has determined that a child is viable, he or she shall report the basis for his or her determination that the abortion is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman. When the physician has determined that a child is not viable after the first nineteen (19) weeks of pregnancy, he or she shall report the basis for such determination.

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