MISSISSIPPI LEGISLATURE

2014 Regular Session

To: Public Health and Welfare

By: Senator(s) McDaniel

Senate Bill 2790

AN ACT TO AMEND SECTION 41-41-33, MISSISSIPPI CODE OF 1972, TO PROHIBIT THE ABORTION OF A HUMAN BEING BASED UPON A DETERMINATION OF THE GENDER OR RACE OF THE HUMAN BEING; TO AMEND SECTION 41-41-39, MISSISSIPPI CODE OF 1972, TO PRESCRIBE CRIMINAL PENALTIES FOR VIOLATIONS OF THIS ACT; AND FOR RELATED PURPOSES.

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

     SECTION 1.  Section 41-41-33, Mississippi Code of 1972, is amended as follows:

     41-41-33.  (1)  No abortion shall be performed or induced except with the voluntary and informed consent of the woman upon whom the abortion is to be performed or induced.  Except in the case of a medical emergency, consent to an abortion is voluntary and informed if and only if:

          (a)  The woman is told the following by the physician who is to perform or induce the abortion or by the referring physician, orally and in person, at least twenty-four (24) hours before the abortion:

               (i)  The name of the physician who will perform or induce the abortion;

               (ii)  The particular medical risks associated with the particular abortion procedure to be employed including, when medically accurate, the risks of infection, hemorrhage and breast cancer, and the danger to subsequent pregnancies and infertility;

               (iii)  The probable gestational age of the unborn child at the time the abortion is to be performed or induced; and

               (iv)  The medical risks associated with carrying her child to term.

          (b)  The woman is informed, by the physician or his agent, orally and in person, at least twenty-four (24) hours before the abortion:

               (i)  That medical assistance benefits may be available for prenatal care, childbirth and neonatal care;

               (ii)  That the father is liable to assist in the support of her child, even in instances in which the father has offered to pay for the abortion;

               (iii)  That there are available services provided by public and private agencies which provide pregnancy prevention counseling and medical referrals for obtaining pregnancy prevention medications or devices; and

               (iv)  That she has the right to review the printed materials described in Section 41-41-35(1)(a), (b) and (c).  The physician or his agent shall orally inform the woman that those materials have been provided by the State of Mississippi and that they describe the unborn child and list agencies that offer alternatives to abortion.  If the woman chooses to view those materials, copies of them shall be furnished to her.  The physician or his agent may disassociate himself or themselves from those materials, and may comment or refrain from comment on them as he chooses.  The physician or his agent shall provide the woman with the printed materials described in Section 41-41-35(1)(d).

          (c)  The woman certifies in writing before the abortion that the information described in paragraphs (a) and (b) of this section has been furnished to her, and that she has been informed of her opportunity to review the information referred to in subparagraph (iv) of paragraph (b) of this section.

          (d)  Before the abortion is performed or induced, the physician who is to perform or induce the abortion receives a copy of the written certification prescribed by this section.

     (2)  The State Department of Health shall enforce the provisions of Sections 41-41-31 through 41-41-39 at abortion facilities, as defined in Section 41-75-1.

     (3)  No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being based upon a determination of the gender or race of the unborn human being.  No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being based upon a determination of the gender or race of the unborn human being.  Any violation of this subsection shall be prosecuted pursuant to 41-41-39 (2).

     SECTION 2.  Section 41-41-39, Mississippi Code of 1972, is amended as follows:

     41-41-39.  (1)  Anyone who purposefully, knowingly or recklessly performs or attempts to perform or induce an abortion without complying with Sections 41-41-31 through 41-41-37 shall, upon conviction, be guilty of a misdemeanor and shall be punished by a fine of * * * One Thousand Dollars ($1,000.00) Five Thousand Dollars ($5,000.00), by imprisonment in the county jail for a period of time not to exceed * * * six (6) months one (1) year, or both such fine and imprisonment.

     (2)  Any person who violates Section 41-41-33(3) shall, upon conviction, be guilty of a felony punishable by imprisonment in the State Penitentiary not less than one (1) year nor more than ten (10) years, by a fine of up to Ten Thousand Dollars ($10,000.00), or both such fine and imprisonment.

     (3)  Nothing in this section may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty.

     SECTION 3.  (1)  If any provision of this act is found to be unconstitutional, the provision is severable; and the other provisions of this act remain effective, except as provided in other sections of this act.

     (2)  Nothing in this act may be construed to repeal, by implication or otherwise, any provision not explicitly repealed.

     (3)  If any provision of this act is ever declared unconstitutional or its enforcement temporarily or permanently restricted or enjoined by judicial order, the provisions of  Sections 41-41-31 through 41-41-91, Mississippi Code of 1972, shall be enforced.  However, if such temporary or permanent restraining order or injunction is subsequently stayed or dissolved or such declaration vacated or any similar court order otherwise ceases to have effect, all provisions of this act that are not declared unconstitutional or whose enforcement is not restrained shall have full force and effect.

     (4)  Nothing in the provisions of Sections 41-41-31 through 41-41-91, Mississippi Code of 1972, shall be construed to permit any action that is prohibited by Senate Bill No. 2297, 2008 Regular Session, and to the extent that any provision of Sections 41-41-31 through 41-41-91, Mississippi Code of 1972, would be so construed, then the provisions of Senate Bill No. 2297, 2008 Regular Session, shall take precedence.

     SECTION 4.  This act shall take effect and be in force from and after July 1, 2014.