2014 Regular Session
To: Public Health and Welfare
By: Senator(s) Gandy
AN ACT TO PROHIBIT ABORTIONS IF THE PROBABLE POST-FERTILIZATION AGE OF THE UNBORN CHILD IS 20 WEEKS OR GREATER; TO PROVIDE CRIMINAL PENALTIES FOR VIOLATIONS OF THIS ACT; TO PROVIDE CERTAIN EXCEPTIONS; TO AMEND SECTION 97-3-3, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act may be cited as the "Pain-Capable Unborn Child Protection Act."
SECTION 2. Legislative findings and declaration of constitutional authority for enactment. The Mississippi Legislature finds and declares the following:
(a) 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 (20) weeks after fertilization.
(b) By eight (8) weeks after fertilization, the unborn child reacts to touch. After twenty (20) weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human, for example, by recoiling.
(c) In the unborn child, application of such painful stimuli is associated with significant increases in stress hormones known as the stress response.
(d) 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.
(e) 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 level when painful stimuli are applied without such anesthesia. In the United States, surgery of this type is being performed by twenty (20) weeks after fertilization and earlier in specialized units affiliated with children's hospitals.
(f) The position, asserted by some physicians, that the unborn child is incapable of experiencing pain until a point later in pregnancy than twenty (20) 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.
(g) Substantial evidence indicates that children born missing the bulk of the cerebral cortex, and those with hydranencephaly, nevertheless experience pain.
(h) In adult humans and in animals, stimulation or ablation of the cerebral cortex does not alter pain perception, while stimulation or ablation of the thalamus does.
(i) 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.
(j) The position, asserted by some commentators, 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 engaging in vigorous movement in reaction to invasive surgery.
(k) Consequently, there is substantial medical evidence that an unborn child is capable of experiencing pain at least by twenty (20) weeks after fertilization, if not earlier.
(l) It is the purpose of the Mississippi Legislature to assert a compelling governmental interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.
(m) The compelling governmental 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 the compelling governmental interest in protecting the lives of unborn children from the stage of viability, and neither governmental interest is intended to replace the other.
(n) The Mississippi Legislature has authority to extend protection to pain-capable unborn children under the Tenth Amendment to the United States Constitution.
SECTION 3. Pain-capable unborn child protection. (1) Unlawful conduct. Notwithstanding any other provision of law, it shall be unlawful for any person to perform an abortion or attempt to do so, unless in conformity with the requirements set forth in subsection (2) of this section.
(2) Requirements for abortions. The physician performing or attempting the abortion shall first make a determination of the probable post-fertilzation age of the unborn child or reasonably rely upon such a determination made by another physician. In making such a determination, the physician shall make such inquiries of the pregnant 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 make an accurate determination of post-fertilization age.
(3) Except as provided in subsection (2) of this section, the abortion shall not be performed or attempted, if the probable post-fertilization age, as determined under subsection (2) of this section, of the unborn child is twenty (20) weeks or greater.
(4) Subject to subsection (5) of this section, subsection (3) of this section does not apply if:
(a) In reasonable medical judgment, the abortion is necessary to save the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself, but not including psychological or emotional conditions; or
(b) The pregnancy is the result of rape, or the result of incest against a minor, if the rape has been reported at any time prior to the abortion to an appropriate law enforcement agency, or if the incest against a minor has been reported at any time prior to the abortion to an appropriate law enforcement agency or to a government agency legally authorized to act on reports of child abuse or neglect.
(5) Notwithstanding the definitions of "abortion" and "attempt an abortion" in this section, a physician terminating or attempting to terminate a pregnancy under an exception provided by subsection (4) of this section may do so only in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive, unless, in reasonable medical judgment, termination to the pregnancy in that manner would pose a greater risk of:
(a) The death of a pregnant woman.
(b) The substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, of the pregnant woman.
(6) Criminal penalty. Whoever violates subsection (1) of this section shall be guilty of a felony and, upon conviction thereof, shall be fined not more than Twenty-five Thousand Dollars ($25,000.00) or imprisoned for not more than five (5) years, or both.
(7) Bar to prosecution. A woman, upon whom an abortion in violation of subsection (1) of this section is performed or attempted, may not be prosecuted under, or for a conspiracy to violate, subsection (1) of this section.
(8) Definitions. In this section the following definitions apply:
(a) The term "abortion" means the use or prescription of any instrument, medicine, drug, or any other substance or device:
(i) To intentionally kill the unborn child of a woman known to be pregnant; or
(ii) To intentionally terminate the pregnancy of a woman known to be pregnant, with an intention other than:
1. After viability to produce a live birth and preserve the life and health of the child born alive; or
2. To remove a dead unborn child.
(b) The term "attempt," with respect to an abortion, means conduct that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in performing an abortion.
(c) The term "fertilization" means the fusion of human spermatozoon with a human ovum.
(d) The term "perform" with respect to an abortion, includes induce an abortion through a medical or chemical intervention including writing a prescription for a drug or device intended to result in an abortion.
(e) The term "physician" means a person licensed to practice medicine and surgery or osteopathic medicine and surgery, or otherwise legally authorized to perform an abortion.
(f) The term "post-fertilization age" means the age of the unborn child as calculated from the fusion of a human spermatozoon with a human ovum.
(g) The term "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.
(h) The term "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.
(i) The term "unborn child" means an individual organism of the species Homo sapiens, beginning at fertilization, until the point of being born alive.
(j) The term "woman" means a female human being whether or not she has reached the age of majority.
SECTION 4. Section 97-3-3, Mississippi Code of 1972, is amended as follows:
97-3-3. (1) Any person wilfully and knowingly causing, by means of any instrument, medicine, drug or other means whatever, any woman pregnant with child to abort or miscarry, or attempts to procure or produce an abortion or miscarriage shall be guilty of a felony unless the same were done by a duly licensed, practicing physician:
(a) Where necessary for the preservation of the mother's life;
(b) Where pregnancy was caused by rape.
Said person shall, upon conviction, be imprisoned in the State Penitentiary not less than one (1) year nor more than ten (10) years; provided, however, if the death of the mother results therefrom, the person procuring, causing or attempting to procure or cause the illegal abortion or miscarriage shall be guilty of murder.
(2) No act prohibited in subsection (1) of this section shall be considered exempt under the provisions of subparagrah (a) thereof unless performed upon the prior advice in writing, of two (2) reputable licensed physicians.
(3) The license of any physician or nurse shall be automatically revoked upon conviction under the provisions of this section.
(4) Nothing in this section shall be construed as conflicting with Section 41-41-73.
(5) Nothing in this section shall be construed as conflicting with this act.
SECTION 5. If any provision, word, phrase or clause of this act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the provision, words, phrases, clauses or applications of this act that can be given effect without the invalid provision, word, phrase, clause or application and to this end, the provisions, words, phrases and clauses of this act are declared to be severable.
SECTION 6. This act shall take effect and be in force from and after July 1, 2014.