HB376 By Representatives Butler, Nordgren, Mooney, Rich, Henry, Ainsworth, Whorton (I), Moore (B), Ford, Williams (JD), Standridge, Drake, Hill (J), Fincher, Brown, Holmes (M), Wingo and Gaston RFD Health Rd 1 08-MAR-16

SYNOPSIS: This act would establish the Alabama Unborn Child Protection from Dismemberment Abortion Act.

This act would prohibit and punish any individual who performs or attempts to perform a dismemberment abortion unless necessary to prevent serious health risk to the mother of the unborn child.

Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose.

The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment.

A BILL TO BE ENTITLED AN ACT

To establish the Alabama Unborn Child Protection from Dismemberment Abortion Act; to provide definitions; to prohibit any person from performing or attempting to perform a dismemberment abortion unless necessary to prevent serious health risk to the mother of the unborn child; to provide for a hearing before the State Board of Medical Examiners; to permit injunctive relief; to provide for civil damages; to provide for attorney fees; to provide for criminal penalties; to provide for anonymity of certain individuals in court proceedings; and in connection therewith to have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. This act shall be known and may be cited as the Alabama Unborn Child Protection from Dismemberment Abortion Act.

Section 2. For the purposes of this act, the following terms shall have the following meanings:

(1) ABORTION. The same as defined in Section 26-21-2, Code of Alabama 1975.

(2) ATTEMPT TO PERFORM AN ABORTION.

a. To do or omit to do anything that, under the circumstances as the actor believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in the actor performing an abortion. Such substantial steps include, but are not limited to, any of the following:

1. Agreeing with an individual to perform an abortion on that individual or on some other individual, whether or not the term abortion is used in the agreement, and whether or not the agreement is contingent on another factor, such as receipt of payment or a determination of pregnancy.

2. Scheduling or planning a time to perform an abortion on an individual, whether or not the term abortion is used, and whether or not the performance is contingent on another factor, such as receipt of payment or a determination of pregnancy.

b. This definition may not be construed to require that an abortion procedure actually be initiated for an attempt to occur.

(3) DISMEMBERMENT ABORTION. With the purpose of causing the death of an unborn child, purposely to dismember a living unborn child and extract him or her one piece at a time from the uterus through use of clamps, grasping forceps, tongs, scissors, or similar instruments that, through the convergence of two rigid levers, slice, crush, or grasp, or any combination of the foregoing, a portion of the unborn child's body to cut or rip it off. This definition does not include an abortion which uses suction to dismember the body of the developing unborn child by sucking fetal parts into a collection container. This definition includes an abortion in which a dismemberment abortion is used to cause the death of an unborn child and suction is subsequently used to extract fetal parts after the death of the unborn child.

(4) PHYSICIAN. An individual licensed to practice medicine and surgery or osteopathic medicine and surgery, or otherwise legally authorized to perform an abortion in the state.

(5) PURPOSELY. An individual acts purposely with respect to a material element of an offense when:

a. If the element involves the nature of his or her conduct or a result thereof, it is his or her conscious objective to engage in conduct of that nature or to cause such a result.

b. If the element involves the attendant circumstances, he or she is aware of the existence of such circumstances or he or she believes or hopes that they exist.

(6) SERIOUS HEALTH RISK TO THE UNBORN CHILD'S MOTHER. In reasonable medical judgment, the child's mother has a condition that so complicates her medical condition that it necessitates the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. No such condition may be determined to exist if it is based on a claim or diagnosis that the woman will engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.

(7) WOMAN. A female human being, whether or not she has reached the age of majority.

Section 3. (a) Notwithstanding any other provision of law, it shall be unlawful for any individual to purposely perform or attempt to perform a dismemberment abortion and thereby kill an unborn child unless necessary to prevent serious health risk to the unborn child's mother.

(b) An individual accused in any proceeding of unlawful conduct under subsection (a) may seek a hearing before the State Board of Medical Examiners on whether the dismemberment abortion was necessary to prevent serious health risk to the unborn child's mother. The findings of the board are admissible on that issue at any trial in which such unlawful conduct is alleged. Upon a motion of the individual accused, the court shall delay the beginning of the trial for not more than 30 days to permit the hearing to take place.

(c) No woman upon whom an abortion is performed or attempted to be performed shall be thereby liable for performing or attempting to perform a dismemberment abortion. No nurse, technician, secretary, receptionist, or other employee or agent who is not a physician but who acts at the direction of a physician, and no pharmacist or other individual who is not a physician but who fills a prescription or provides instruments or materials used in an abortion at the direction of or to a physician, shall be thereby liable for performing or attempting to perform a dismemberment abortion.

(d) This act does not prevent abortion for any reason including rape and incest by any other method, unless otherwise prevented by law.

Section 4. (a) A cause of action for injunctive relief against an individual who has performed or attempted to perform a dismemberment abortion in violation of Section 3 may be maintained by any of the following:

(1) A woman upon whom a dismemberment abortion was performed or attempted to be performed.

(2) An individual who is the spouse, parent, or guardian of, or a current or former licensed health care provider of, a woman upon whom such a dismemberment abortion was performed or attempted to be performed.

(3) A prosecuting attorney with appropriate jurisdiction.

(b) The injunction shall prevent the defendant from performing or attempting to perform further dismemberment abortions in violation of Section 3.

Section 5. (a) A cause of action for civil damages against an individual who has performed a dismemberment abortion in violation of Section 3 may be maintained by any of the following:

(1) Any woman upon whom a dismemberment abortion has been performed in violation of Section 3.

(2) The father of the unborn child, if married to the woman at the time the dismemberment abortion was performed.

(3) If the woman had not attained the age of 18 years at the time of the dismemberment abortion or has died as a result of the abortion, the maternal grandparents of the unborn child.

(b) No damages may be awarded a plaintiff if the pregnancy resulted from criminal conduct of the plaintiff.

(c) Damages awarded in such an action shall include all of the following:

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

(2) Statutory damages equal to three times the cost of the dismemberment abortion.

Section 6. (a) If judgment is rendered in favor of the plaintiff in an action described in Section 4 or Section 5, the court shall also render judgment for reasonable attorney fees in favor of the plaintiff against the defendant.

(b) If judgment is rendered in favor of the defendant in an action described in Section 4 or Section 5, and the court finds that the plaintiff's suit was frivolous and brought in bad faith, the court shall render judgment for reasonable attorney fees in favor of the defendant against the plaintiff.

(c) No attorney fees may be assessed against the woman upon whom an abortion was performed or attempted to be performed except in accordance with subsection (b).

Section 7. Whoever is found to have violated Section 3 shall be fined ten thousand dollars ($10,000) or imprisoned for not more than two years, or both.

Section 8. In every civil, criminal, or administrative proceeding or action brought under this act, the court shall rule whether the identity of any woman upon whom an abortion has been performed or attempted to be performed shall 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 order shall be accompanied by specific written findings explaining why the anonymity of the woman should be preserved, 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 woman upon whom an abortion has been performed or attempted to be performed, anyone other than a public official who brings an action under Section 4 or Section 5 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 or from attorneys for the defendant.

Section 9. Nothing in this act shall be construed as creating or recognizing a right to abortion, nor a right to a particular method of abortion.

Section 10. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 11. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Abortion

Health

Medical Examiners, State Board of

Civil Procedure

Crimes and Offenses

Courts

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