BILL NUMBER: AB 1009 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Benoit
FEBRUARY 22, 2007
An act to add Article 2.7 (commencing with Section 123470.10) to
Chapter 2 of Part 2 of Division 106 of the Health and Safety Code,
relating to abortion.
LEGISLATIVE COUNSEL'S DIGEST
AB 1009, as introduced, Benoit. Fetal pain prevention.
Existing law, the Therapeutic Abortion Act, contains provisions
regulating abortions, including a requirement that the procedure be
performed by a physician and surgeon.
This bill would enact the Unborn Child Pain Awareness Act of 2008,
to require, with an exemption for medical emergency, the physician
performing the abortion to offer to the pregnant woman information
and counseling on fetal pain.
This bill would require the State Department of Public Health to
develop a related brochure and a waiver form, would require the
California Medical Board to adopt regulations for revocation or
suspension of medical licenses for violation of these provisions, and
would authorize the Attorney General and the woman or her family to
bring a civil action for damages and penalties for violation of these
provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The California Legislature finds all of the following:
(a) At least 20 weeks after fertilization, an unborn child has the
physical structures necessary to experience pain.
(b) There is substantial evidence that by 20 weeks after
fertilization, unborn children draw away from certain stimuli in a
manner which in an infant or an adult would be interpreted as a
response to pain.
(c) Anesthesia is routinely administered to unborn children who
have developed 20 weeks or more past fertilization who undergo
prenatal surgery.
(d) There is substantial evidence that the abortion methods most
commonly used 20 weeks after fertilization cause substantial pain to
an unborn child, whether by dismemberment, poisoning, penetrating, or
crushing the skull, or other methods. Examples of abortion methods
used 20 weeks after fertilization include, but are not limited to,
all of the following:
(1) The dilation and evacuation method of abortion is commonly
performed in the second trimester of pregnancy. In a dilation and
evacuation abortion, the unborn child's body parts are grasped at
random with a long-toothed clamp. The fetal body parts are then torn
off of the body and pulled out of the vaginal canal. The remaining
body parts are grasped and pulled out until only the head remains.
The head is then grasped and crushed in order to remove it from the
vaginal canal.
(2) Partial-birth abortion is an abortion in which the abortion
practitioner delivers an unborn child's body until only the head
remains inside the womb, punctures the back of the child's skull with
a sharp instrument, and sucks the child's brains out before
completing the delivery of the dead infant.
(e) Expert testimony confirms that by 20 weeks after fertilization
an unborn child may experience substantial pain even if the woman
herself has received local analgesic or general anesthesia.
(f) Medical science is capable of reducing the pain through the
administration of anesthesia or other pain-reducing drugs directly to
the unborn child.
(g) There is a valid federal and state government interest in
reducing the number of events in which great pain is inflicted on
sentient creatures. Examples of this are laws governing the use of
laboratory animals and requiring pain-free methods of slaughtering
livestock, which include, but are not limited to, the following:
(1) Section 2 of the act commonly known as the Humane Slaughter
Act of 1958 (P. L. 85-765; 7 U.S.C. Sec. 1902) states:
"No method of slaughtering or handling ... shall be deemed to
comply with the public policy of the United States unless it is
humane. Either of the following two methods of slaughtering and
handling are hereby found to be humane:
"(a) in the case of cattle, calves, horses, mules, sheep, swine,
and other livestock, all animals are rendered insensible to pain by a
single blow or gunshot or an electrical, chemical, or other means
that is rapid and effective, before being shackled, hoisted, thrown,
cast, or cut; or
"(b) by slaughtering in accordance with the ritual requirements of
the Jewish faith or any other religious faith that prescribes a
method of slaughter whereby the animal suffers loss of consciousness
by anemia of the brain caused by the simultaneous and instantaneous
severance of the carotid arteries with a sharp instrument and
handling in connection with such slaughtering."
(2) Section 13(a)(3) of the Animal Welfare Act (P. L. 89-544; 7
U.S.C. Sec. 2143(a)(3)) sets the standards and certification process
for the humane handling, care, treatment, and transportation of
animals. The standards with respect to animals in research facilities
"include requirements--"
"(A) for animal care, treatment, and practices in experimental
procedures to ensure that animal pain and distress are minimized,
including adequate veterinary care with the appropriate use of
anesthetic, analgesic, tranquilizing drugs, or euthanasia;
"(B) that the principal investigator considers alternatives to any
procedure likely to produce pain to or distress in an experimental
animal;
"(C) in any practice which could cause pain to animals--
"(i) that a doctor of veterinary medicine is consulted in the
planning of such procedures;
"(ii) for the use of tranquilizers, analgesics, and anesthetics;
"(iii) for pre-surgical and post-surgical care by laboratory
workers, in accordance with established veterinary medical and
nursing procedures;
"(iv) against the use of paralytics without anesthesia; and
"(v) that the withholding of tranquilizers, anesthesia, analgesia,
or euthanasia when scientifically necessary shall continue for only
the necessary period of time;"
(3) Section 495 of the Public Health Service Act (P. L. 99-158; 42
U.S.C. Sec. 289(d)) directs the Secretary of Health and Human
Services, acting through the Director of the National Institutes of
Health, to establish guidelines for research facilities as to the
proper care and treatment of animals, including the appropriate use
of tranquilizers, analgesics, and other drugs, except that the
guidelines may not prescribe methods of research. Under federal law,
entities that conduct biomedical and behavioral research with
National Institutes of Health funds are required to establish animal
care committees which are required to conduct reviews at least
semiannually and report to the Director of the National Institutes of
Health at least annually. If the director determines that an entity
has not been following the guidelines, the director is required to
give the entity an opportunity to take corrective action, and, if the
entity does not, the director is required to suspend or revoke the
grant or contract involved.
SEC. 2. Article 2.7 (commencing with Section 123470.10) is added
to Chapter 2 of Part 2 of Division 106 of the Health and Safety Code,
to read:
Article 2.7. Unborn Child Pain Awareness Act of 2008
123470.10. This article may be cited as the Unborn Child Pain
Awareness Act of 2008.
123470.15. As used in this article, the following terms have the
following meanings:
(a) "Abortion" means the intentional 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) "Abortion provider" means any person legally qualified to
perform an abortion under applicable federal and state laws.
(c) "Pain-capable unborn child" means an unborn child who has
reached a probable stage of development of 20 weeks after
fertilization. This subdivision shall not be construed as a
determination or finding by the Legislature that pain may not in fact
be experienced by an unborn child at stages of development prior to
20 weeks after fertilization.
(d) "Probable age of development" means the duration of
development after fertilization of the unborn child at the time an
abortion is performed, as determined in the good faith judgment of
the abortion provider on the basis of examination of the unborn child
using ultrasound or other imaging technology, in addition to
information obtained by interviewing the pregnant woman.
(e) "Unborn child" means a member of the species homo sapiens, at
any stage of development, who is carried in the womb.
(f) "Woman" means a female human being who is of childbearing age,
whether or not she has reached the age of majority.
(g) "Medical emergency" means a condition which, in the reasonable
medical judgment of the abortion provider, so complicates the
medical condition of the pregnant woman that a delay in commencing an
abortion procedure would impose a serious risk of causing grave and
irreversible physical health damage entailing substantial impairment
of a major bodily function.
(h) "Reasonable medical judgment" means a medical judgment that
would be made by a reasonably prudent physician, knowledgeable about
the case and the treatment possibilities with respect to the medical
conditions involved.
(i) "The brochure" means the Unborn Child Pain Awareness Brochure
developed by the State Department of Public Health pursuant to
Section 123470.25.
123470.20. (a) An abortion provider performing any abortion, of a
pain-capable unborn child, shall comply with the requirements of
this article.
(b) Before any part of an abortion involving a pain-capable unborn
child begins, the abortion provider or his or her agent shall
provide the pregnant woman involved, by telephone or in person, with
all of the following information:
(1) An abortion provider or the provider's agent shall make the
following oral statement to the pregnant woman, or in the case of a
deaf or non-English-speaking woman, provide the statement in a manner
that she can easily understand:
"You are considering having an abortion of an unborn child who
will have developed, at the time of the abortion, approximately ___
weeks after fertilization. The California Legislature has determined
that at this stage of development, an unborn child has the physical
structures necessary to experience pain. There is substantial
evidence that by this point, unborn children draw away from surgical
instruments in a manner which in an infant or an adult would be
interpreted as a response to pain. The Legislature finds that there
is substantial evidence that the process of being killed in an
abortion will cause the unborn child pain, even though you receive a
pain-reducing drug or drugs. Under the Unborn Child Pain Awareness
Act of 2008, you have the option of choosing to have anesthesia or
other pain-reducing drug or drugs administered directly to the
pain-capable unborn child if you so desire. The purpose of
administering the drug or drugs would be to reduce or eliminate the
capacity of the unborn child to experience pain during the abortion
procedure. In some cases, there may be some additional risk to you
associated with administering the drug."
(2) After making the statement required under paragraph (1), the
abortion provider may provide the woman involved with his or her best
medical judgment on the risks of administering the anesthesia or
analgesic, if any, and the associated costs.
(3) If the abortion provider is not qualified or willing to
administer the anesthesia or other pain-reducing drug in response to
the request of a pregnant women after making the statement required
under paragraph (1), the provider shall do either of the following:
(A) Arrange for a qualified specialist to administer the
anesthesia or drug.
(B) Advise the pregnant woman of either of the following:
(i) Where she may obtain the anesthesia or other pain-reducing
drugs for the unborn child in the course of an abortion.
(ii) That the abortion provider is unable to perform the abortion
if the woman elects to receive anesthesia or other pain-reducing drug
for her unborn child.
(4) An abortion provider shall provide the pregnant woman with the
Unborn Child Pain Awareness Brochure developed by the department
pursuant to Section 123470.25 and shall provide information on
accessing the brochure on the department's Internet Web site as set
forth in subdivision (d) of Section 123470.25.
(5) An abortion provider shall provide the pregnant woman with the
Unborn Child Pain Awareness Decision Form developed by the
department pursuant to Section 123470.27, and shall obtain the
appropriate signature of the woman on the form.
123470.25. (a) By April 1, 2009, the department shall develop an
Unborn Child Pain Awareness Brochure.
(b) The brochure shall be written in English and Spanish and shall
contain the same information as required under the statement under
paragraph (1) of subdivision (b) of Section 123470.20, including
greater detail on her option of having a pain-reducing drug or drugs
administered to the unborn child to reduce the experience of pain by
the unborn child during the abortion.
(c) The information shall be written in an objective and
nonjudgmental manner and be printed in a typeface large enough to be
clearly legible. The brochure shall be made available by the
department at no cost to any abortion provider.
(d) The brochure shall be available on the Internet Web site of
the department at a minimum resolution of 70 DPI (dots per inch). All
pictures appearing on the Web site shall be a minimum of 200x300
pixels. All letters on the Web site shall be a minimum of 12-point
font. All the information and pictures shall be accessible with an
industry standard browser, requiring no additional plug-ins.
(e) An abortion provider or his or her agent shall offer to
provide a pregnant woman with the brochure, before any part of an
abortion of a pain-capable unborn child begins, through any of the
following methods:
(1) Through an in-person visit by the pregnant woman.
(2) Through an e-mail attachment, from the abortion provider or
his or her agent.
(3) Through a request to have the brochure mailed, by certified
mail, to the woman at least 72 hours before any part of the abortion
begins.
123470.27. (a) By March 2, 2009, the department shall develop an
Unborn Child Pain Awareness Decision Form.
(b) After the abortion provider or his or her agent offers to
provide a pregnant woman the brochure, a pregnant woman may waive
receipt of the brochure under this subdivision by signing the waiver
form contained in the Unborn Child Pain Awareness Decision Form.
(c) To be valid, the form shall comply with all of the following
requirements:
(1) With respect to the pregnant woman, it shall comply with all
of the following requirements:
(A) It shall contain a statement that affirms that the woman has
received or been offered all of the information required in this
article.
(B) It shall require the woman to explicitly either request or
refuse the administration of pain-reducing drugs to the unborn child.
(C) It shall be signed by a pregnant woman prior to the
performance of an abortion involving a pain-capable unborn child.
(2) With respect to the abortion provider it shall comply with all
of the following requirements:
(A) It shall contain a statement that the provider has provided
the woman with all of the information required under this article.
(B) If applicable, it shall contain a certification by the
provider that an exception described in subdivision (b) of Section
123470.30 applies and the detailed reasons for the certification.
(C) It shall be signed by the provider prior to the performance of
the abortion procedure.
(d) The department shall adopt regulations relating to the period
of time during which copies of the forms under this subdivision shall
be maintained by abortion providers.
123470.30. (a) Nothing in this article shall be construed to
impede an abortion provider or the abortion provider's agent from
offering his or her own evaluation on the capacity of the unborn
child to experience pain, the advisability of administering
pain-reducing drugs to the unborn child, or any other matter, as long
as the provider or agent provides the required information, obtains
the woman's signature on the decision form, and otherwise complies
with the affirmative requirements of the law.
(b) The notice and advisement requirements of this article shall
not apply to an abortion provider in the case of a medical emergency.
(c) Upon a determination by an abortion provider that a medical
emergency exists with respect to a pregnant woman, the provider shall
certify the specific medical conditions that constitute the
emergency.
(d) An abortion provider who willfully falsifies a certification
of emergency shall be subject to all the penalties for violation of
this article.
123470.35. (a) An abortion provider who willfully violates this
article shall be subject to civil penalties in a civil action
commenced by the Attorney General in accordance with this article in
an appropriate court.
(b) The Attorney General may commence a civil action under this
article.
(c) At the time of the commencement of an action under this
article, the Attorney General shall certify to the court involved
that, at least 30 calendar days prior to the filing of the action,
the Attorney General has complied with all of the following:
(1) He or she has provided notice of the alleged violation of this
article, in writing, to the district attorney who has jurisdiction,
the California Medical Board, and the department.
(2) He or she believes that the action by the State of California
is in the public interest and necessary to secure substantial
justice.
(d) With respect to an action under this article, the appropriate
California Medical Board may be heard at a hearing to determine the
penalty to be imposed under this article.
123470.40. A woman upon whom an abortion has been performed in
violation of this article, or the parent or legal guardian of the
woman if she is an unemancipated minor, may commence a civil action
against the abortion provider for any knowing or reckless violation
of this article for actual and punitive damages.
123470.45. The California Medical Board, in consultation with the
department, shall adopt regulations and procedures for the
revocation or suspension of the medical license of an abortion
provider upon a finding by a court that the provider has violated
this article.