MISSISSIPPI LEGISLATURE

2018 Regular Session

To: Judiciary B

By: Representatives Foster, Tullos, Barnett

House Bill 226

AN ACT TO AMEND SECTION 41-41-131, MISSISSIPPI CODE OF 1972, TO CHANGE THE NAME OF THE WOMEN'S HEALTH PROTECTION AND PREBORN PAIN ACT TO THE WOMEN'S HEALTH PROTECTION AND FETAL HEARTBEAT ACT; TO AMEND SECTION 41-41-133, MISSISSIPPI CODE OF 1972, TO ADD SEVERAL NEW DEFINITIONS TO THE ACT; TO AMEND SECTION 41-41-135, MISSISSIPPI CODE OF 1972, TO PROHIBIT PHYSICIANS FROM PERFORMING OR INDUCING AN ABORTION WITHOUT FIRST MAKING A DETERMINATION BY USING AN ABDOMINAL ULTRASOUND IMAGING PROCEDURE IF THE UNBORN HUMAN INDIVIDUAL THAT THE PREGNANT WOMAN IS CARRYING HAS A DETECTABLE FETAL HEARTBEAT; TO AMEND SECTION 41-41-137, MISSISSIPPI CODE OF 1972, TO PROHIBIT PHYSICIANS FROM PERFORMING OR INDUCING AN ABORTION IF IT HAS BEEN DETERMINED THAT THE UNBORN HUMAN INDIVIDUAL THAT THE PREGNANT WOMAN IS CARRYING HAS A DETECTABLE FETAL HEARTBEAT; TO CREATE NEW SECTION 41-41-138, MISSISSIPPI CODE OF 1972, TO PROVIDE CRIMINAL PENALTIES FOR PHYSICIANS WHO KNOWINGLY PERFORM OR INDUCE AN ABORTION IN VIOLATION OF SECTION 41-41-135 OR 41-41-137; TO PROVIDE THAT A PREGNANT WOMAN ON WHOM AN ABORTION IS PERFORMED OR INDUCED IN VIOLATION OF SECTION 41-41-135 OR 41-41-137 IS NOT GUILTY OF VIOLATING OR ATTEMPTING TO VIOLATE EITHER OF THOSE SECTIONS AND IS NOT SUBJECT TO A CRIMINAL PENALTY BASED ON THAT VIOLATION; TO AMEND SECTION 41-41-139, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISIONS; TO AMEND SECTION 41-41-141, MISSISSIPPI CODE OF 1972, TO LIMIT THE EXEMPTION FROM THE PROHIBITIONS IN THIS ACT ONLY TO CASES WHERE THERE EXISTS A CONDITION IN WHICH AN ABORTION IS NECESSARY TO PRESERVE THE LIFE OF THE PREGNANT WOMAN AND TO REMOVE THE OTHER EXEMPTIONS; AND FOR RELATED PURPOSES.

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

     SECTION 1.  Section 41-41-131, Mississippi Code of 1972, is amended as follows:

     41-41-131.  Sections 41-41-131 through 41-41-145 may be cited as the Women's Health Protection and * * *Preborn Pain Fetal Heartbeat Act.

     SECTION 2.  Section 41-41-133, Mississippi Code of 1972, is amended as follows:

     41-41-133.  As used in Sections 41-41-131 through 41-41-145:

          (a)  "Abortion" means the use or prescription of any instrument, medicine, drug or any other substance or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth or to remove a dead fetus.

          (b)  * * *"Gestational age" means the time that has elapsed since the first day of the woman's last menstrual period as determined using methods consistent with standard medical practice in the community. "Fetal heartbeat" means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.

          (c)  * * *"Severe fetal abnormality" means a life‑threatening physical condition that, in reasonable medical judgment, regardless of the provision of life‑saving medical treatment, is incompatible with life outside the womb. "Fetus" means the human offspring developing during pregnancy from the moment of conception and includes the embryonic stage of development.

          (d)  * * *"Major bodily function" includes, but is not limited to, functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. "Physician" means a person licensed to practice medicine under Section 73-25-1 et seq.

(e)  "Pregnancy" means the human female reproductive condition that begins with fertilization, when the woman is carrying the developing human offspring, and that is calculated from the first day of the last menstrual period of the woman.

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

     SECTION 3.  Section 41-41-135, Mississippi Code of 1972, is amended as follows:

     41-41-135.  Except as otherwise provided by Section 41-41-141, a physician may not perform * * *, or induce or attempt to perform or induce an abortion without, before the procedure * * *;,

          (a)  Making a determination * * *of the probable gestational age of the unborn child by using an abdominal ultrasound imaging procedure if the unborn human individual that the pregnant woman is carrying has a detectable fetal heartbeat; or

          (b)  Possessing and relying on a determination * * *of the probable gestational age of the unborn child made by another physician using an abdominal ultrasound imaging procedure if the unborn human individual that the pregnant woman is carrying has a detectable fetal heartbeat.  * * *The physician making such a determination must do so in accordance with reasonable medical judgment.

     SECTION 4.  Section 41-41-137, Mississippi Code of 1972, is amended as follows:

     41-41-137.  Except as otherwise provided by Section 41-41-141, a * * *person physician may not perform or induce or attempt to perform or induce an abortion * * *on a woman if it has been determined, by the physician performing, inducing, or attempting to perform or induce the abortion or by another physician on whose determination that physician relies, that the * * *probable gestational age of the unborn child is twenty (20) or more weeks unborn human individual that the pregnant woman is carrying has a detectable fetal heartbeat.

     SECTION 5.  The following shall be codified as Section 41-41-138, Mississippi Code of 1972:

41-41-138.  (1)  A physician who (a) knowingly performs or induces or attempts to perform or induce an abortion without first determining, or possessing a determination by another physician on whose determination that physician relies, if the unborn human individual that the pregnant woman is carrying has a detectable fetal heartbeat, in violation of Section 41-41-135; or (b) knowingly performs or induces or attempts to perform or induce an abortion after determining, or possessing a determination by another physician on whose determination that physician relies, that the unborn human individual that the pregnant woman is carrying has a detectable fetal heartbeat, in violation of Section 41-41-137, is guilty of a felony and, upon conviction thereof, shall be fined not more than Twenty-five Thousand Dollars ($25,000.00) or sentenced to the custody of the State Department of Corrections for not more than two (2) years, or both.  In addition, the physician shall be subject to disciplinary action under Section 73-25-29(15).

     (2)  A pregnant woman on whom an abortion is performed or induced in violation of Section 41-41-135 or 41-41-137 is not guilty of violating or attempting to violate either of those sections, and is not subject to a penalty under this section based on that violation.

     SECTION 6.  Section 41-41-139, Mississippi Code of 1972, is amended as follows:

     41-41-139.  (1)  This section applies only to an abortion authorized under Section 41-41-141(1) in which * * *:

  (a)  The probable gestational age of the unborn child is twenty (20) or more weeks; or

  (b)  The probable gestational age of the unborn child has not been determined but could reasonably be twenty (20) or more weeks the unborn human individual that the pregnant woman is carrying has a detectable fetal heartbeat.

     (2)  A physician performing or inducing an abortion under subsection (1) of this section shall terminate the pregnancy in the manner that, in the physician's reasonable medical judgment, provides the best opportunity for the unborn child to survive.

     SECTION 7.  Section 41-41-141, Mississippi Code of 1972, is amended as follows:

     41-41-141.  * * *(1) The prohibitions and requirements under Sections 41-41-135, 41-41-137 and 41-41-139(2) do not apply if there exists a condition in which an abortion is necessary to preserve the life of the 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 * * *, or when continuation of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function (as specifically defined in paragraph (d) of Section 41‑41‑133) of the pregnant woman.

 * * * (2)  The prohibitions and requirements under Sections 41‑41‑135, 41‑41‑137 and 41‑41‑139(2) do not apply to an abortion performed or induced on an unborn child who has a severe fetal abnormality if the mother is informed twenty‑four (24) hours before the abortion that supportive care, including, but not limited to, counseling and medical care by maternal‑fetal medical specialists, obstetricians, neonatologists, anesthesia specialists, clergy, social workers, and specialty nurses focused on alleviating fear and ensuring that the woman and her family experience the life and death of their child in a comfortable and supportive environment, is available should she choose to carry her pregnancy to term.

     SECTION 8.  This act shall take effect and be in force from and after July 1, 2018.

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