Amended in Assembly May 1, 2014

Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2336

Introduced by Assembly Member Grove

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(Coauthors: Assembly Members Conway, Beth Gaines, Harkey, Olsen, Melendez, and Waldron)

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(Coauthor: Senator Fuller)

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February 21, 2014

An act to amend Section 2253 of the Business and Professions Code, and to add Article 2.7 (commencing with Section 123470) to Chapter 2 of Part 2 of Division 106 of the Health and Safety Code, relating to public health.

LEGISLATIVE COUNSEL’S DIGEST

AB 2336, as amended, Grove. Abortion: gender selection.

Existing law generally ensures the right of a woman to choose or obtain an abortion, but provides that the performance of an abortion is unauthorized under certain circumstances, including when the abortion is performed on a viable fetus and continuation of the pregnancy posed no risk to the life or health of the pregnant woman, as specified.

This bill would enact the Prenatal Nondiscrimination Act. The bill would prohibit a person from intentionally performing or attempting to perform an abortion with knowledge that the pregnant woman is seeking the abortion begin delete on account end delete begin insert because end insert of the gender of the unborn child. The bill would provide for injunctive relief, civil damages, and civil fines for a violation of this provision. The bill would also prohibit the public disclosure of the woman’s identity, unless she consents to that disclosure.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

This act shall be known and may be cited as the
Prenatal Nondiscrimination Act or PRENDA.

SEC. 2.  

Section 2253 of the Business and Professions Code is
amended to read:

2253.  

(a) Except as otherwise prohibited by Article 2.7
(commencing with Section 123470) of Chapter 2 of Part 2 of
Division 106 of the Health and Safety Code, failure to comply
with the Reproductive Privacy Act (Article 2.5 (commencing with
Section 123460) of Chapter 2 of Part 2 of Division 106 of the
Health and Safety Code) constitutes unprofessional conduct.

(b) (1) Except as provided in paragraph (2), a person is subject
to Section 2052 if he or she performs an abortion, and at the time
of so doing, does not have a valid, unrevoked, and unsuspended
license to practice as a physician and surgeon.

(2) A person shall not be subject to Section 2052 if he or she
performs an abortion by medication or aspiration techniques in
the first trimester of pregnancy, and at the time of so doing, has a
valid, unrevoked, and unsuspended license or certificate obtained
in accordance with the Nursing Practice Act (Chapter 6
(commencing with Section 2700)) or the Physician Assistant
Practice Act (Chapter 7.7 (commencing with Section 3500)), that
authorizes him or her to perform the functions necessary for an
abortion by medication or aspiration techniques.

(c) In order to perform an abortion by aspiration techniques
pursuant to paragraph (2) of subdivision (b), a person shall comply
with Section 2725.4 or 3502.4.

SEC. 3.  

Article 2.7 (commencing with Section 123470) is
added to Chapter 2 of Part 2 of Division 106 of the Health and
Safety Code, to read:

 

Article 2.7.  Abortion: Gender Selection and Prenatal
Nondiscrimination

 

123470.  

For purposes of this article, the following definitions
shall apply:

(a) “Abortion” means the 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 who died as the result of natural causes in utero, accidental
trauma, or a criminal assault on the pregnant woman or her unborn
child.

(b) “Attempt to perform an abortion” means 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 an abortion. Substantial
steps include, but are not limited to, agreeing with an individual
to perform an abortion on that individual or on some other person,
regardless of whether the term “abortion” is used in the agreement,
and regardless of whether the agreement is contingent on another
factor such as receipt of payment or a determination of pregnancy;
or scheduling or planning a time to perform an abortion on an
individual, regardless of whether the term “abortion” is used, and
regardless of whether the performance is contingent on another
factor such as receipt of payment or a determination of pregnancy.
This definition does not require that an abortion procedure actually
be initiated for an attempt to occur.

123471.  

A person shall not intentionally perform or attempt
to perform an abortion with knowledge that the pregnant woman
is seeking the abortion begin delete on account end delete begin insert because end insert of the gender of the
unborn child.

123472.  

(a) (1) Any of the following persons may maintain
an action against the person who performed an abortion in violation
of Section 123471:

(A) The person upon whom the abortion was performed,
regardless of that person’s age.

(B) The father of the unborn child who was the subject of the
abortion that was performed.

(C) If the person upon whom the abortion was performed is a
minor, a parent, legal guardian, or grandparent of the person.

(2) No person shall be estopped from recovery in begin delete such end delete an action
begin insert described in paragraph (1) end insert on the ground that either the plaintiff
or the person upon whom the abortion was performed gave consent
to the abortion.

(b) If judgment is rendered in favor of the plaintiff in any action
described in this section, the person may recover ten thousand
dollars ($10,000) in punitive damages and treble actual damages.
The court shall also award reasonable attorney’s fees in favor of
the plaintiff against the defendant. If 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 may award reasonable
attorney’s fees in favor of the defendant against the plaintiff. For
purposes of this section, the term “frivolous” has the same meaning
as provided in Section 128.5 of the Code of Civil Procedure.

(c) (1) A cause of action for injunctive relief against any person
who has knowingly violated this section may be maintained by
the female upon whom an abortion was performed or attempted
to be performed in violation of this section, by a person who is the
spouse, parent, sibling, or guardian of, or a current or former
licensed health care provider of, the female upon whom an abortion
has been performed or attempted to be performed in violation of
this act, by begin delete or end delete a prosecuting attorney with appropriate jurisdiction,
or by the Attorney General. The injunction shall prevent the
abortion provider from performing further abortions in violation
of this section in this state.

(2) A person who knowingly violates the terms of an injunction
issued in accordance with this section shall be subject to civil
contempt, and shall be fined ten thousand dollars ($10,000) for
the first violation, fifty thousand dollars ($50,000) for the second
violation, one hundred thousand dollars ($100,000) for the third
violation, and for each succeeding violation an amount in excess
of one hundred thousand dollars ($100,000) determined by the
court to be an amount sufficient to deter future violations. The
fines shall be the exclusive penalties for the contempt. Each
performance or attempted performance of an abortion in violation
of the terms of an injunction is a separate violation. These fines
shall be cumulative. However, no fine may be assessed against the
woman on whom an abortion is performed or attempted.

(d) Any pleading filed in a proceeding or action brought pursuant
to this section shall ensure that the identity of any woman upon
whom an abortion is performed or attempted is not publicly
disclosed and that all parties substitute a pseudonym for the true
name of the woman and other parties as necessary to protect the
woman’s privacy, unless she gives her written consent to the
disclosure of her identity. Absent that written consent, the court,
upon motion or sua sponte, shall issue orders to the parties,
witnesses, and counsel, and shall direct the sealing of the record
and exclude individuals from courtrooms or hearing rooms, to the
extent necessary to safeguard the woman’s identity from public
disclosure.

123473.  

The provisions of this article are severable. If any
provision of this section or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.