2018 -- S 2709

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LC005094

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2018

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A N   A C T

RELATING TO HEALTH AND SAFETY -- PARTIAL- BIRTH ABORTION

     Introduced By: Senators Lombardi, DiPalma, and Ciccone

     Date Introduced: March 20, 2018

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Chapter 23-4.12 of the General Laws entitled "Partial-Birth Abortion" is

hereby repealed in its entirety.

CHAPTER 23-4.12

Partial Birth Abortion

     23-4.12-1. Definitions. -- (a) For purposes of this chapter, "partial birth abortion" means

an abortion in which the person performing the abortion vaginally delivers a living human fetus

before killing the infant and completing the delivery.

      (b) For purposes of this chapter, the terms "fetus" and "infant" are used interchangeably

to refer to the biological offspring of human parents.

      (c) As used in this section, "vaginally delivers a living fetus before killing the infant"

means deliberately and intentionally delivers into the vagina a living fetus, or a substantial

portion of the fetus, for the purpose of performing a procedure the person performing the abortion

knows will kill the infant, and kills the infant.

     23-4.12-2. Prohibition of partial birth abortions. -- No person shall knowingly perform

a partial birth abortion.

     23-4.12-3. Life of the mother exception. -- Section 23-4.12-2 shall not apply to a partial

birth abortion that is necessary to save the life of a mother because her life is endangered by a

physical disorder, physical illness, or physical injury, including a life-endangering condition

caused by or arising from the pregnancy itself; provided, that no other medical procedure would

suffice for that purpose.

     23-4.12-4. Civil remedies. -- (a) The woman upon whom a partial birth abortion has

been performed in violation of section 23-4.12-2, the father of the fetus or infant, and the

maternal grandparents of the fetus or infant, and the maternal grandparents of the fetus or infant if

the mother has not attained the age of eighteen (18) years at the time of the abortion, may obtain

appropriate relief in a civil action, unless the pregnancy resulted from the plaintiff's criminal

conduct or the plaintiff consented to the abortion.

      (b) The relief shall include:

      (1) Money damages for all injuries, psychological and physical, occasioned by the

violation of this chapter; and

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

      (c) If judgment is rendered in favor of the plaintiff in an action described in this section,

the court shall also render judgment for a reasonable attorney's fee in favor of the plaintiff against

the defendant. If the judgment is rendered in favor of the defendant and the court finds that the

plaintiff's suit was frivolous and brought in bad faith, the court shall also render judgment for a

reasonable attorney's fee in favor of the defendant against the plaintiff.

     23-4.12-5. Penalty. -- (a) Performance of a partial birth abortion deliberately and

intentionally is a violation of this chapter and shall be a felony.

      (b) A woman upon whom a partial birth abortion is performed may not be prosecuted

under this chapter for violating this chapter or any provision this chapter, or for conspiracy to

violate this chapter or any provision this chapter.

     23-4.12-6. Severability. -- (a) If any one or more provisions, clauses, phrases, or words

of section 23-4.12-3 or the application of that section to any person or circumstance is found to be

unconstitutional, it is declared to be inseverable.

      (b) If any one or more provisions, sections, subsections, sentences, clauses, phrases or

words of the remaining sections or the application of them to any person or circumstance is found

to be unconstitutional, they are declared to be severable and the balance of the chapter shall

remain effective notwithstanding the unconstitutionality. The legislature declares that it would

have passed this chapter, and each provision, section, subsection, sentence, clause, phrase, or

words, with the exception of section 23-4.12-3, irrespective of the fact that any one or more

provisions, sections, subsections, sentences, clauses, phrases, or words be declared

unconstitutional.

     SECTION 2. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby

amended by adding thereto the following chapter:

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CHAPTER 4.13

PARTIAL-BIRTH ABORTION ACT

     23-4.13-1. Definitions.

     For purposes of this chapter:

     (1) "Partial-birth abortion" means an abortion in which the person performing the

abortion:

     (i) Deliberately and intentionally vaginally delivers a living fetus until, in the case of a

head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of

breech presentation, any part of the fetal trunk past the navel is outside the body of the mother,

for the purpose of performing an overt act that the person knows will kill the partially delivered

living fetus; and

     (ii) Performs the overt act, other than completion of delivery, that kills the partially

delivered living fetus.

     (2) "Physician" means a doctor of medicine or osteopathy legally authorized to practice

medicine and surgery in the state, or any other individual legally authorized by the state to

perform abortions; provided, however, that any individual who is not a physician or not otherwise

legally authorized by the state to perform abortions, but who nevertheless directly performs a

partial-birth abortion, shall be subject to the provisions of this chapter.

     23-4.13-2. Prohibition of partial-birth abortions.

     Any physician who knowingly performs a partial-birth abortion and thereby kills a

human fetus is guilty of a felony. A female upon whom a partial-birth abortion is performed may

not be prosecuted under this chapter.

     23-4.13-3. License suspension or revocation and fines.

     If the offender is a professionally licensed person, in addition to any other penalty

imposed by law for the offense, the state board of medical licensure and discipline may assess a

civil fine, after proper notice and an opportunity to be heard, against a licensee for unprofessional

conduct in an amount not to exceed twenty-five thousand dollars ($25,000) for the first violation,

not to exceed fifty thousand dollars ($50,000) for the second violation, and not to exceed one

hundred thousand dollars ($100,000) for the third violation and, for each subsequent violation, an

amount in excess of one hundred thousand dollars ($100,000) sufficient to deter future violations.

Additionally their license shall be subject to suspension or revocation in accordance with

procedures provided under chapter 37 of title 5. All fines assessed and collected under this section

shall be remitted to the state treasurer. Upon receipt of each such remittance, the state treasurer

shall deposit the entire amount in the state treasury to the credit of the state general fund.

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     23-4.13-4. Affirmative defense.

     In any proceeding pursuant to this chapter relating to the performance of a partial-birth

abortion, it is an affirmative defense that the defendant performed the partial-birth abortion if it

was necessary to save the life of a mother 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.

     23-4.13-5. Review by state medical board.

     (a) A defendant accused of an offense under this chapter may seek a hearing before the

state board of medical licensure and discipline on whether the physician's conduct was necessary

to save the life of the mother whose life was endangered by a physical disorder, physical illness,

or physical injury, including a life-endangering physical condition caused by or arising from the

pregnancy itself.

     (b) The findings on that issue are admissible on that issue at the trial of the defendant.

Upon a motion of the defendant, the court shall delay the beginning of the trial for not more than

thirty (30) days to permit such a hearing to take place.

     23-4.13-6. Civil remedies.

     (a) The woman upon whom a partial-birth abortion has been performed, the parent of a

minor upon whom a partial-birth abortion has been performed, and the father of the unborn child

subject to a partial-birth abortion that has been performed, unless the pregnancy resulted from the

plaintiff's criminal conduct, may, in a civil action, obtain appropriate relief from the person who

performed the partial-birth abortion unlawfully under this chapter with knowledge that it was

such an abortion or with reckless disregard for whether it was such an abortion.

     (b) Such relief shall include:

     (1) Money damages for all injuries, psychological and physical, occasioned by the

violation of this chapter; and

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

     (c) If judgment is rendered in favor of the plaintiff in an action described in this section,

the court shall also render judgment for reasonable attorneys' fees in favor of the plaintiff against

the defendant.

     (d) No person is estopped from recovery in such a suit on the grounds that either the

plaintiff or the person upon whom the partial-birth abortion was performed gave consent to the

abortion. Any contract of indemnification for such damages is void.

     (e) No damages or attorney's fees may be assessed against the female on whom a partial-

birth abortion is performed.

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     23-4.13-7. Provision for anonymity of female.

     In every proceeding or action pursuant to this chapter, the court shall rule whether the

anonymity of any female upon whom a partial-birth abortion is performed should be preserved

from public disclosure if she does not give her consent to such disclosure. The court, upon motion

or sua sponte, shall make such a ruling and, upon determining that her anonymity should be

preserved, shall issue orders to the parties, witnesses and counsel, and shall direct the sealing of

the record and exclusion of individuals from courtrooms or hearing rooms, to the extent necessary

to safeguard her identity from public disclosure. Each such order shall be accompanied by

specific written findings explaining why the anonymity of the female should be preserved from

public disclosure, why the order is essential to that end, how the order is narrowly tailored to

serve that interest, and why no reasonable less restrictive alternative exists. In the absence of

written consent of the female upon whom a partial-birth abortion has been performed, anyone,

other than a public official, who brings an action under this section shall do so under a

pseudonym. This section may not be construed to conceal the identity of the plaintiff or of

witnesses from the defendant.

     23-4.13-8. Construction.

     (a) Nothing in this chapter shall be construed as creating or recognizing a right to

abortion.

     (b) It is not the intention of this chapter to make lawful an abortion that is currently

unlawful.

     (c) The adoption of this chapter does not repeal or modify, by implication or otherwise,

any provision of state law not expressly amended by this chapter.

     23-4.13-9. Severability.

     If any provision of this chapter or the application thereof to any person or circumstance is

held invalid, such invalidity does not affect the provisions for applications of this chapter which

can be given effect without the invalid provision or application and to this end, the provisions of

this chapter are declared to be severable.

     SECTION 3. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY -- PARTIAL- BIRTH ABORTION

***

     This act would amend and revise the definitions and penalties pertaining to partial-birth

abortions. The act would further provide that any physician who knowingly performs a partial-

birth abortion would be guilty of a felony and may be liable for civil penalties and fines.

     This act would take effect upon passage.

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