BILL ANALYSIS
AB 2512
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Date of Hearing: April 25, 2006
ASSEMBLY COMMITTEE ON HEALTH
Wilma Chan, Chair
AB 2512 (Runner) - As Introduced: February 23, 2006
SUBJECT : Fetal pain prevention.
SUMMARY : Enacts the Unborn Child Pain Awareness Act of 2006.
Specifically, this bill :
1)Contains a number of findings and declarations related to
fetal pain, abortion methods, the federal Humane Slaughter Act
of 1958, the federal Animal Welfare Act, and the federal
Public Health Service Act.
2)Defines "abortion" as 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.
3)Defines "abortion provider" as any person legally qualified to
perform an abortion under applicable federal and state laws.
4)Defines "pain-capable unborn child" as an unborn child who has
reached a probable stage of development of 20 weeks after
fertilization. Prohibits this bill from being 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.
5)Defines "probable age of development" as 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.
6)Defines "unborn child" as a member of the species homo
sapiens, at any stage of development, who is carried in the
womb.
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7)Defines "medical emergency" as 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.
8)Defines "reasonable medical judgment" as 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.
9)Prohibits an abortion provider performing any abortion, of a
pain-capable unborn child, from complying with the
requirements of this bill.
10)Requires the abortion provider or his or her agent, before
any part of an abortion involving a pain-capable unborn child
begins and by telephone or in person, to:
a) Make an oral statement, as specified, 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. Permits the abortion provider, after
making the statement, to 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.
b) If the abortion provider is not qualified or willing to
administer anesthesia or other pain-reducing drug, arrange
for a qualified specialist to administer or advise the
pregnant woman of in response to the request; advise the
woman where she may obtain the anesthesia or other
pain-reducing drugs for the unborn child in the course of
an abortion; or, advise the woman 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.
c) Provide the pregnant woman with the Unborn Child Pain
Awareness Brochure developed by the Department of Health
Services (DHS) pursuant to this bill and provide
information on accessing the brochure on the department's
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Web site, as specified.
d) Provide the pregnant woman with the Unborn Child Pain
Awareness Decision Form developed by DHS pursuant to this
bill and obtain the appropriate signature of the woman on
the form.
11)Requires DHS, by April 1, 2007, to develop an Unborn Child
Pain Awareness Brochure, to be written in English and Spanish
and contain the same information as required under the
statement specified in a) above, 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.
12)Requires the information to be written in an objective and
nonjudgmental manner and be printed in a typeface large enough
to be clearly legible. Requires the brochure to be made
available by DHS at no cost to any abortion provider.
13)Requires the brochure to be available on the Web site of the
department at a minimum resolution of 70 dots per inch.
Requires all pictures appearing on the Web site to be a
minimum of 200x300 pixels and all letters to be a minimum of
12 point font. Requires all the information and pictures to
be accessible with an industry standard browser, requiring no
additional plug-ins.
14)Requires an abortion provider or his or her agent to offer to
provide a pregnant woman with the brochure, before any part of
an abortion of a pain-capable unborn child begins through an
in-person visit by the pregnant woman, an e-mail attachment,
from the abortion provider or his or her agent, or a request
to have the brochure mailed, by certified mail, to the woman
at least 72 hours before any part of the abortion begins.
15)Requires DHS, by March 2, 2007, to develop an Unborn Child
Pain Awareness Decision Form.
16)Permits a pregnant woman, after the abortion provider or his
or her agent offers to provide a pregnant woman the brochure,
to waive receipt of the brochure by signing the waiver form
contained in the Unborn Child Pain Awareness Decision Form.
17)Requires the form, to be valid and with respect to the
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pregnant woman, to: contain a statement that affirms that the
woman has received or been offered all of the information
required in this bill; require the woman to explicitly either
request or refuse the administration of pain-reducing drugs to
the unborn child; and be signed by a pregnant woman prior to
the performance of an abortion involving a pain-capable unborn
child.
18)Requires the form, to be valid and with respect to the
abortion provider, to: contain a statement that the provider
has provided the woman with all of the information required
under this bill; contain, if applicable, a certification by
the provider that an exception described in this bill applies
and the detailed reasons for the certification; and, be signed
by the provider prior to the performance of the abortion
procedure.
19)Requires DHS to adopt regulations relating to the period of
time during which copies of the forms under this subdivision
are required to be maintained by abortion providers.
20)Prohibits anything in this bill from being construed to
impede an abortion provider or the abortion provider's agent
from offering their 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.
21)Prohibits the notice and advisement requirements of this bill
from applying to an abortion provider in the case of a medical
emergency.
22)Requires the abortion provider, upon his or her determination
that a medical emergency exists with respect to a pregnant
woman, to certify the specific medical conditions that
constitutes the emergency.
23)Requires an abortion provider who willfully falsifies a
certification of emergency to be subject to all the penalties
for violation of this bill.
24)Requires an abortion provider who willfully violates this
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bill to be subject to civil penalties in a civil action
commenced by the Attorney General (AG) in accordance with this
bill in an appropriate court. Permits the AG to commence a
civil action under this bill.
25)Requires the AG, at the time of the commencement of an action
under this bill, to certify to the court involved that, at
least 30 calendar days prior to the filing of the action, the
AG has:
a) Provided notice of the alleged violation of this bill,
in writing, to the district attorney who has jurisdiction,
the California Medical Board, and DHS; and,
b) Believes that the action by the State of California is
in the public interest and necessary to secure substantial
justice.
26)Permits the California Medical Board, with respect to an
action under this article, to hold a hearing to determine the
penalty to be imposed under this bill.
27)Permits 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, to commence a
civil action against the abortion provider for any knowing or
reckless violation of this article for actual and punitive
damages.
28)Requires the California Medical Board, in consultation with
DHS, to 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 bill.
EXISTING LAW :
1)Provides for the performance of abortions under the
Therapeutic Abortion Act by licensed physicians or surgeons.
2)Requires physicians and surgeons to obtain written consent
from patients prior to various procedures and treatments, not
including abortion.
FISCAL EFFECT : Unknown
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COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, there is
substantial evidence that an unborn child has the physical
structure necessary to experience pain 20 weeks after
fertilization. There is no specification for the
administration of anesthesia to unborn children when they are
aborted 20 weeks after fertilization. Because of the nature
of the abortion procedure, it is apparent that it causes pain
to the unborn child in absence of any anesthesia. One
procedure, the dilation and evacuation method, uses a clamp to
grasp the unborn child's body parts at random and pull them
out, finishing with the head after it is crushed. In order to
prevent the pain suffered by an unborn child in an abortion
procedure, it is vital to provide women undergoing an abortion
with the option of anesthesia. For this reason current law
protects these children from experiencing pain in prenatal
surgery by injecting the unborn child with anesthesia.
2)PREVIOUS LEGISLATION . In 2004, AB 2331 (Mountjoy) would have
required a physician performing an abortion in the 3rd
trimester of pregnancy to offer to the pregnant woman
information and counseling on fetal pain and offer to the
pregnant woman anesthesia for the fetus. AB 2331 would have
also required the physician to arrange for anesthesia to be
administered if the pregnant woman voluntarily consents to
administration of anesthesia for the fetus and would have
required the pregnant woman to sign a document that
information and counseling on fetal pain was provided and that
the physician offered anesthesia for the fetus. AB 2331
failed passage in the Assembly Committee on Health by a vote
of 4-14. In 1997, AB 1758 (Runner) contained the exact
language found in AB 2331 and failed passage in the Assembly
Committee on Health by a vote of 8-11.
3)TECHNICAL AMENDMENTS .
a) On page 9, line 30: delete "appropriate" and on line 31
delete "be heard at" and insert "hold"
b) On page 9, lines 26, 31, and 39 should read "Medical
Board of California" rather than "California Medical Board"
4)DOUBLE REFERRAL . This bill is double referred. Should it pass
out of this Committee, it will be heard in the Assembly
Committee on Judiciary.
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5)SUPPORT . The California Catholic Conference writes that this
bill exhibits both compassion and common sense. Capitol
Resource Institute states that it has been well documented
that unborn children experience pain, among other emotions,
during abortion and when making a choice, women deserve to
have all the facts so they can make an informed choice. The
California Family Alliance writes that this bill makes the
valid point that current laws protect animals from pain and
that unborn children deserve no less compassion.
6)OPPOSITION . The American College of Obstetricians and
Gynecologists (ACOG), District IX, asserts that just over 1%
of all abortions occur after 20 weeks gestation and many of
these abortions occur for highly unusual circumstances such as
a severe fetal anomaly and/or lack of viability or the health
or life of the mother. ACOG also writes that informed consent
is a unique and personalized process between the physician and
the patient, where all aspects of the procedure are discussed,
including risks, alternatives and anesthesia and that the
mandated discussion and treatment outlined in this bill are
inappropriate intrusions into the practice of medicine.
Finally, ACOG contends that there are factual and medical
inaccuracies throughout this bill, such as defining a 20-week
fetus as a "pain-capable unborn child." The California
Medical Association writes that this bill is a troubling
governmental intrusion into the physician-patient
relationship, even delineating the exact words a physician
must say to his or her patient. The California Family Health
Council contends that the mandated discussion and treatment
options as outlined in this bill are inappropriate intrusions
into the practice of medicine. Planned Parenthood Affiliates
of California opposes this bill because it is not based on
conclusive medical evidence, it does not take into account
women's health, and it tries to set legal precedent by
recognizing in statute the term "unborn child." Planned
Parenthood Golden Gate asserts that this bill puts political
philosophy before sciences and is a shameless attack on women
who are already making a difficult choice. American
Association of University Women writes that the mandated
script required in this bill intrudes upon a woman's
relationship with her physician and ignores her needs and
circumstances with misinformation.
REGISTERED SUPPORT / OPPOSITION :
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Support
California Catholic Conference
California Family Alliance
California Family Council
Capitol Resource Institute
Opposition
American Association of University Women
American College of Obstetricians and Gynecologists, District IX
California Family Health Council
California Medical Association
California National Organization for Women
California Women Lawyers
National Association of Social Workers, California Chapter
Planned Parenthood Affiliates of California
Planned Parenthood Golden Gate
Analysis Prepared by : Melanie Moreno / HEALTH / (916)
319-2097