2018 -- S 2152

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LC004019

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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 - BORN-ALIVE INFANT PROTECTION ACT

     

     Introduced By: Senators Ciccone, and Lombardi

     Date Introduced: January 23, 2018

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby

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amended by adding thereto the following chapter:

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CHAPTER 95

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BORN-ALIVE INFANT PROTECTION ACT

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     23-95-1. Short title.

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     This chapter shall be known and may be cited as the "Born-Alive Infant Protection Act."

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     23-95-2. Legislative findings and purpose.

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     (a) The general assembly of the state of Rhode Island finds that:

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     (1) The state of Rhode Island has a paramount interest in protecting all human life.

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     (2) If an attempted abortion results in the live birth of an infant, the infant is a legal

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person for all purposes under the laws of this state.

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     (3) It is not an infringement on a woman's right to terminate her pregnancy for this state

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to assert its interest in protecting an infant whose live birth occurred as the result of an attempted

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abortion.

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     (4) Without proper legal protection, newly born infants who have survived attempted

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abortions have been denied appropriate life-saving or life-sustaining medical care and treatment

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and have been left to die.

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     (b) Based on the findings in subsection (a) of this section, it is the purpose of this chapter

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is to:

 

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     (1) Ensure the protection and promotion of the health and well-being of all infants born

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alive in this state; and

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     (2) Mandate that health care providers give medically appropriate and reasonable life­

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saving and life-sustaining medical care and treatment to all born-alive infants.

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     23-95-3. Definitions.

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     As used in this chapter:

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     (1) "Abortion" means the act of using or prescribing any instrument, medicine, drug, or

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any other substance, device, or means with the intent to terminate the clinically diagnosable

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pregnancy of a woman with knowledge that the termination by those means will, with reasonable

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likelihood, cause the death of the unborn child. Such use, prescription, or means is not an abortion

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if done with the intent to:

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     (i) Save the life or preserve the health of the unborn child;

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     (ii) Remove a dead unborn child caused by spontaneous abortion; or

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     (iii) Remove an ectopic pregnancy.

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     (2) "Born-alive" or "live birth" means the complete expulsion or extraction of an infant

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from their mother, regardless of the state of gestational development, that, after expulsion or

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extraction, whether or not the umbilical cord has been cut or the placenta is attached, and

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regardless of whether the expulsion or extraction occurs as a result of natural or induced labor,

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cesarean section, or induced abortion, shows any evidence of life, including, but not limited to,

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one or more of the following:

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     (i) Breathing;

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     (ii) A heartbeat;

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     (iii) Umbilical cord pulsation; or

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     (iv) Definite movement of voluntary muscles.

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     (3) "Consent" means the voluntary agreement or acquiescence by a person of age and

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with the requisite mental capacity who is not under duress or coercion and who has knowledge or

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understanding of the act or action to which they have agreed or acquiesced.

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     (4) "Facility" or "medical facility" means any public or private hospital, clinic, center,

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medical school, medical training institution, health care facility, physician's office, infirmary,

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dispensary, ambulatory surgical treatment center, or other institution or location wherein medical

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care is provided to any person.

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      (5) "Infant" means a child of the species homo sapiens who has been completely

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expulsed or extracted from their mother, regardless of the stage of gestational development, until

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the age of thirty (30) days post birth.

 

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     (6) "Physician" means a person licensed to practice medicine in the state of Rhode Island.

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This term includes medical doctors and doctors of osteopathy.

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     (7) "Premature" or "preterm" means occurring prior to the thirty-seventh week of

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gestation.

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     23-95-4. Requirements and responsibilities.

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     (a) A person shall not deny or deprive an infant of nourishment with the intent to cause or

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allow the death of the infant for any reason, including, but not limited to:

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     (1) The infant was born with a handicap;

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     (2) The infant is not wanted by the parent(s) or guardian(s); or

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     (3) The infant is born alive by natural or artificial means.

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     (b) A person shall not deprive an infant of medically appropriate and reasonable medical

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care and treatment or surgical care.

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     (c) The requirements of this section shall not be construed to prevent an infant's parent(s)

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or guardian(s) from refusing to give consent to medical treatment or surgical care which is not

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medically necessary or reasonable, including care or treatment which either:

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     (1) Is not necessary to save the life of the infant;

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     (2) Has a potential risk to the infant's life or health that outweighs the potential benefit to

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the infant of the treatment or care; or

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     (3) Is treatment that will do no more than temporarily prolong the act of dying when

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death is imminent.

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      (d)(1) The physician performing an abortion must take all medically appropriate and

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reasonable steps to preserve the life and health of a born-alive infant. If an abortion performed in

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a hospital results in a live birth, the physician attending the abortion shall provide immediate

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medical care to the infant, inform the mother of the live birth, and request transfer of the infant to

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an on-duty resident or emergency care physician who shall provide medically appropriate and

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reasonable medical care and treatment to the infant.

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     (2) If an abortion performed in a facility other than a hospital results in a live birth, a

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physician attending the abortion shall provide immediate medical care to the infant and call 9-1-1

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for an emergency transfer of the infant to a hospital that shall provide medically appropriate and

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reasonable care and treatment to the infant.

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     (e) If the physician described in subsection (d) of this section is unable to perform the

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duties in that subsection because they are assisting the woman on whom the abortion was

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performed, then an attending physician's assistant, nurse, or other health care provider must

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assume the duties outlined in subsection (d) of this section.

 

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     (f) Any born-alive infant including one born in the course of an abortion procedure shall

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be treated as a legal person under the laws of this state, with the same rights to medically

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appropriate and reasonable care and treatment, and birth and death (if death occurs) certificates

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shall be issued accordingly.

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     (g) If, before the abortion, the mother, and if married, her husband, has or have stated in

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writing that she, or they, do not wish to keep the infant in the event that the abortion results in a

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live birth, and this writing is not retracted before the attempted abortion, the infant, if born alive,

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shall immediately upon birth become a ward of the department of children, youth and families.

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     (h) No person may use any born-alive infant for any type of scientific research or other

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kind of experimentation except as necessary to protect or preserve the life and health of the born-

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alive infant.

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     23-95-5. Exceptions.

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     The parent(s) or guardian(s) of a born-alive infant will not be held criminally or civilly

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liable for the actions of a physician, nurse, or other health care provider that are in violation of

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this act and to which the parent(s) or guardian(s) did not give consent.

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     23-95-6. Criminal penalties.

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     (a) Any physician, nurse, or other health care provider who intentionally, knowingly, or

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negligently fails to provide medically appropriate and reasonable care and treatment to a born­

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alive infant in the course of an attempted abortion shall be guilty of a felony and upon conviction

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shall be subject to imprisonment for a period of up to ten (10) years, or a fine of up to twenty-five

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thousand dollars ($25,000), or both.

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     (b) Any violation of § 23-95-4(h) concerning the research use of a born-alive infant is a

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felony and upon conviction shall be subject to imprisonment for a period of up to ten (10) years,

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or a fine of up to twenty-five thousand dollars ($25,000), or both.

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     23-95-7. Civil and administrative action.

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     In addition to whatever remedies are available under the statutory or common law of this

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state, failure to comply with the requirements of this chapter shall:

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     (1) Provide a basis for a civil action for compensatory and punitive damages. Any

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conviction under this act shall be admissible in a civil suit as prima facie evidence of a failure to

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provide medically appropriate and reasonable care and treatment to a born-alive infant. Any civil

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action may be based on a claim that the death of or injury to the born-alive infant was a result of

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simple negligence, gross negligence, wantonness, willfulness, intentional conduct, or another

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violation of the legal standard of care.

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     (2) Provide a basis for professional disciplinary action under chapter 37 of title 5 for the

 

LC004019 - Page 4 of 6

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suspension or revocation of any license for physicians, licensed and registered nurses, or other

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licensed or regulated persons. Any conviction of any person for any failure to comply with the

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requirements of this chapter shall result in the automatic suspension of their license for a period

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of at least one year and said license shall be reinstated after that time only under such conditions

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as the board of licensure and discipline shall require to ensure compliance with this chapter.

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     (3) Provide a basis for recovery for the parent(s) of the infant or the parent(s) or

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guardian(s) of the mother, if the mother is a minor, for the wrongful death of the infant, whether

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or not the infant was viable at the time the attempted abortion was performed.

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     23-95-8. Construction.

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     (a) Nothing in this chapter shall be construed to affirm, deny, expand, or contract any

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legal status or legal right applicable to any member of the species homo sapiens at any point prior

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to being born-alive, as defined in this chapter.

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     (b) Nothing in this chapter shall be construed to affect existing federal or state law

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regarding abortion.

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

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abortion.

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      (d) Nothing in this chapter shall be construed to alter generally accepted medical

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standards.

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     23-95-9. Severability.

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     Any provision of this chapter held to be invalid or unenforceable by its terms, or as

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applied to any person or circumstance, shall be construed so as to give it the maximum effect

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permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in

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which event such provision shall be deemed severable and shall not affect the remainder or the

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application of such provision to other persons not similarly situated or to other dissimilar

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circumstances.

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     23-95-10. Right of intervention.

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     The general assembly, by joint resolution, may appoint one or more of its members, who

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sponsored or cosponsored this chapter in the member's official capacity, to intervene as a matter

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of right in any case in which the constitutionality of this law is challenged.

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     SECTION 2. 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 - BORN-ALIVE INFANT PROTECTION ACT

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     This act would enact the Born-Alive Infant Protection Act and provide for the duties and

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obligations of medical personnel in certain circumstances.

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     This act would take effect upon passage.

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