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AN ACT relating to unborn children. 1
WHEREAS, the Fourteenth Amendment to the Constitution of the United States 2
requires that no state "shall deny to any person within its jurisdiction the equal protection 3
of the laws"; and 4
WHEREAS, innocent human life, created in the image of God, should be equally 5
protected under the laws from fertilization to natural death; and 6
WHEREAS, to ensure the right to life and equal protection of the laws, all preborn 7
children should be protected with the same homicide laws protecting all other human 8
persons; and 9
WHEREAS, all persons potentially subject to such laws are entitled to due process 10
protections; and 11
WHEREAS, pregnant mothers should be protected from being pressured to abort 12
their children by repealing provisions that may otherwise allow a person to solicit, 13
command, aid, or counsel a mother to abort her child; 14
NOW, THEREFORE, 15
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 16
SECTION 1. A NEW SECTION OF KRS CHAPTER 507 IS CREATED TO 17
READ AS FOLLOWS: 18
Unless specifically provided otherwise, in a prosecution under this chapter where the 19
victim is an unborn child, enforcement shall be subject to the same legal principles as 20
would apply to the homicide of a person who had been born alive, including 21
presumptions, defenses, justifications, laws of parties, immunities, and clemencies. 22
SECTION 2. A NEW SECTION OF KRS CHAPTER 507 IS CREATED TO 23
READ AS FOLLOWS: 24
This chapter shall not apply to the unintentional death of an unborn child when the 25
death results from: 26
(1) The undertaking of life-saving procedures on a pregnant woman when the 27 UNOFFICIAL COPY 25 RS BR 1373
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procedures are accompanied by reasonable steps, if available, to save the life of 1
her unborn child; or 2
(2) A spontaneous miscarriage. 3
Section 3. KRS 507.010 is amended to read as follows: 4
As used in this chapter: 5
(1) "Abuse" has the same meaning as in KRS 508.090; 6
(2) "Criminal homicide" means that a person is guilty of causing the death of another 7
human being under circumstances which constitute murder, manslaughter in the 8
first degree, manslaughter in the second degree, or reckless homicide;[ and] 9
(3) "Person" and "human being" include an unborn child; 10
(4)[(3)] "Physically helpless" and "mentally helpless" have the same meaning as in 11
KRS 508.090; 12
(5) "Spontaneous miscarriage" means the natural or accidental termination of a 13
pregnancy and the expulsion of the unborn child; and 14
(6) "Unborn child" means an individual from fertilization until live birth. 15
SECTION 4. A NEW SECTION OF KRS CHAPTER 508 IS CREATED TO 16
READ AS FOLLOWS: 17
As used in KRS 508.010, 508.020, 508.025, 508.030, 508.032, and 508.040 and Sections 18
4 to 6 of this Act: 19
(1) "Person" includes an unborn child; 20
(2) "Spontaneous miscarriage" means the natural or accidental termination of a 21
pregnancy and the expulsion of the unborn child; and 22
(3) "Unborn child" means an individual from fertilization until live birth. 23
SECTION 5. A NEW SECTION OF KRS CHAPTER 508 IS CREATED TO 24
READ AS FOLLOWS: 25
Unless specifically provided otherwise, in a prosecution under KRS 508.010, 508.020, 26
508.025, 508.030, 508.032, and 508.040 where the victim is an unborn child, 27 UNOFFICIAL COPY 25 RS BR 1373
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enforcement shall be subject to the same legal principles as would apply to the assault 1
of a person who had been born alive, including presumptions, defenses, justifications, 2
laws of parties, immunities, and clemencies. 3
SECTION 6. A NEW SECTION OF KRS CHAPTER 508 IS CREATED TO 4
READ AS FOLLOWS: 5
This chapter shall not apply to the unintentional death of an unborn child when the 6
death results from: 7
(1) The undertaking of life-saving procedures on a pregnant woman when the 8
procedures are accompanied by reasonable steps, if available, to save the life of 9
her unborn child; or 10
(2) A spontaneous miscarriage. 11
SECTION 7. A NEW SECTION OF KRS CHAPTER 15 IS CREATED TO 12
READ AS FOLLOWS: 13
The Attorney General shall have concurrent jurisdiction with Commonwealth's 14
attorneys and county attorneys for the investigation and prosecution of offenses under 15
KRS Chapter 507 and KRS 508.010, 508.020, 508.025, 508.030, 508.032, and 508.040 16
when the victim is an unborn child as defined in Sections 3 and 4 of this Act. 17
Section 8. KRS 501.090 is amended to read as follows: 18
(1) In any prosecution for an offense other than an intentional homicide, except as 19
provided in subsection (2)(b) of this section, it is a defense that the defendant 20
engaged in the proscribed conduct because he or she was coerced to do so by the 21
use of, or a threat of the use of, unlawful physical force against him or her or 22
another person which a person in his or her situation could not reasonably be 23
expected to resist. 24
(2) The defense provided by subsection (1) of this section is: 25
(a) Unavailable if the defendant intentionally or wantonly placed himself or 26
herself in a situation in which it was probable that he or she would be 27 UNOFFICIAL COPY 25 RS BR 1373
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subjected to coercion; and 1
(b) Available for an offense of intentional homicide when the victim is an 2
unborn child as defined in Section 3 of this Act and the defendant is the 3
child's mother. 4
Section 9. KRS 311.732 is amended to read as follows: 5
(1) For purposes of this section the following definitions shall apply: 6
(a) "Minor" means any person under the age of eighteen (18); 7
(b) "Emancipated minor" means any minor who is or has been married or has by 8
court order or otherwise been freed from the care, custody, and control of her 9
parents; and 10
(c) "Abortion" means the use of any instrument, medicine, drug, or any other 11
substance or device with intent to terminate the pregnancy of a woman known 12
to be pregnant with intent other than to increase the probability of a live birth, 13
to preserve the life or health of the child after live birth, or to remove a dead 14
fetus. 15
(2) No person shall perform an abortion upon a minor unless: 16
(a) The attending physician has secured the informed written consent of the 17
minor and one (1) parent or legal guardian with joint or physical custody and 18
the consenting parent or legal guardian of the minor has made a reasonable 19
attempt to notify any other parent with joint or physical custody at least forty-20
eight (48) hours prior to providing the informed written consent. 21
1. Notice shall not be required to be provided to any parent who has: 22
a. Previously been enjoined by a domestic violence order or 23
interpersonal protective order, regardless of whether or not the 24
person to be protected by the order was the minor; or 25
b. Been convicted of, or entered into a diversion program for, a 26
criminal offense against a victim who is a minor as defined in 27 UNOFFICIAL COPY 25 RS BR 1373
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KRS 17.500 or for a violent or sexual criminal offense under KRS 1
Chapter 506, 507,[ 507A,] 508, 509, 510, 529, 530, or 531. 2
2. The informed written consent shall include: 3
a. A copy of the minor's government-issued identification, a copy of 4
the consenting parent's or legal guardian's government-issued 5
identification, and written documentation including but not limited 6
to a birth certificate, court-ordered custodial paperwork, or tax 7
return, establishing that he or she is the lawful parent or legal 8
guardian; and 9
b. The parent's or legal guardian's certification that he or she consents 10
to the abortion. The certification shall be in a signed, dated, and 11
notarized document that has been initialed on each page and that 12
contains the following statement, which shall precede the signature 13
of the parent or legal guardian: "I, (insert name of parent or legal 14
guardian), am the (select "parent" or "legal guardian") of (insert 15
name of minor) and give consent for (insert name of attending 16
physician) to perform an abortion on her. Under penalties of 17
perjury, I declare that I have read the foregoing statement and that 18
the facts stated in it are true." 19
3. The attending physician shall keep a copy of the informed written 20
consent in the medical file of the minor for five (5) years after the minor 21
reaches eighteen (18) years of age or for seven (7) years, whichever is 22
longer. 23
4. The attending physician securing the informed written consent from a 24
parent or legal guardian under this subsection shall execute for inclusion 25
in the medical record of the minor an affidavit stating: "I, (insert name 26
of attending physician), certify that, according to my best information 27 UNOFFICIAL COPY 25 RS BR 1373
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and belief, a reasonable person under similar circumstances would rely 1
on the information presented by both the minor and her parent or legal 2
guardian as sufficient evidence of identity."; 3
(b) The minor is emancipated and the attending physician has received the 4
informed written consent of the minor; or 5
(c) The minor elects to petition any Circuit or District Court of the 6
Commonwealth pursuant to subsection (3) of this section and obtain an order 7
pursuant to subsection (4) of this section granting consent to the abortion and 8
the attending physician has received the informed written consent of the 9
minor. 10
(3) Every minor shall have the right to petition any Circuit or District Court of the 11
Commonwealth for an order granting the right to self-consent to an abortion 12
pursuant to the following procedures: 13
(a) The minor or her next friend may prepare and file a petition setting forth the 14
request of the minor for an order of consent to an abortion; 15
(b) The court shall ensure that the minor prepares or her next friend is given 16
assistance in preparing and filing the petition and shall ensure that the minor's 17
identity is kept anonymous; 18
(c) The minor may participate in proceedings in the court on her own behalf or 19
through her next friend and the court shall appoint a guardian ad litem for her. 20
The court shall advise her that she has a right to court-appointed counsel and 21
shall provide her with such counsel upon her request; 22
(d) All proceedings under this section shall be anonymous and shall be given 23
preference over other matters to ensure that the court may reach a decision 24
promptly, but in no case shall the court fail to rule within seventy-two (72) 25
hours of the time of application, provided that the seventy-two (72) hour 26
limitation may be extended at the request of the minor; and 27 UNOFFICIAL COPY 25 RS BR 1373
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(e) The court shall hold a hearing on the merits of the petition before reaching a 1
decision. The court shall hear evidence at the hearing relating to: 2
1. The minor's: 3
a. Age; 4
b. Emotional development and stability; 5
c. Maturity; 6
d. Intellect; 7
e. Credibility and demeanor as a witness; 8
f. Ability to accept responsibility; 9
g. Ability to assess both the current and future life-impacting 10
consequences of, and alternatives to, the abortion; and 11
h. Ability to understand and explain the medical risks of the abortion 12
and to apply that understanding to her decision; and 13
2. Whether there may be any undue influence by another on the minor's 14
decision to have an abortion. 15
(4) (a) If the court finds by: 16
1. Clear and convincing evidence that the minor is sufficiently mature to 17
decide whether to have an abortion; 18
2. Clear and convincing evidence that the requirements of this section are 19
not in the best interest of the minor; or 20
3. A preponderance of the evidence that the minor is the victim of child 21
abuse or sexual abuse inflicted by one (1) or both of her parents or her 22
legal guardian; 23
the court shall enter a written order, making specific factual findings and legal 24
conclusions supporting its decision to grant the petition for an abortion. 25
(b) If the court does not make any of the findings specified in paragraph (a) of 26
this subsection, the court shall deny the petition. 27 UNOFFICIAL COPY 25 RS BR 1373
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(c) As used in this subsection, "best interest of the minor" shall not include 1
financial best interest, financial considerations, or the potential financial 2
impact on the minor or the minor's family if the minor does not have an 3
abortion. 4
(5) Any minor shall have the right of anonymous and expedited appeal to the Court of 5
Appeals, and that court shall give precedence over other pending matters. 6
(6) All hearings under this section, including appeals, shall remain confidential and 7
closed to the public. The hearings shall be held in chambers or in a similarly private 8
and informal setting within the courthouse. 9
(7) No fees shall be required of any minor who declares she has no sufficient funds to 10
pursue the procedures provided by this section. 11
(8) (a) The Supreme Court is respectfully requested to promulgate any rules and 12
regulations it feels are necessary to ensure that proceedings under this section 13
are handled in an expeditious and anonymous manner. 14
(b) The Supreme Court, through the Administrative Office of the Courts, shall 15
report by February 1 of each year to the Legislative Research Commission 16
and the cabinet on the number of petitions filed under subsection (3) of this 17
section for the preceding year, and the timing and manner of disposal of the 18
petition by each court. For each approved petition granting an abortion filed 19
under subsection (3) of this section, the specific court finding in subsection 20
(4) of this section shall be included in the report. 21
(9) (a) The requirements of subsections (2), (3), and (4) of this section shall not apply 22
when, in the best medical judgment of the physician based on the facts of the 23
case before him or her, a medical emergency exists that so complicates the 24
pregnancy as to require an immediate abortion. 25
(b) If a medical emergency exists, the physician shall make reasonable attempts, 26
whenever possible, and without endangering the minor, to contact the parent 27 UNOFFICIAL COPY 25 RS BR 1373
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or legal guardian of the minor, and may proceed, but must document reasons 1
for the medical necessity in the minor's medical records. 2
(c) The physician shall inform the parent or legal guardian, in person or by 3
telephone, within twenty-four (24) hours of the abortion, including details of 4
the medical emergency that necessitated the abortion without the parent's or 5
legal guardian's consent. The physician shall also provide this information in 6
writing to the parent or legal guardian at his or her last known address by 7
first-class mail or by certified mail, return receipt requested, with delivery 8
restricted to the parent or legal guardian. 9
(10) A report indicating the basis for any medical judgment that warrants failure to 10
obtain consent pursuant to this section shall be filed with the Cabinet for Health and 11
Family Services on a form supplied by the cabinet. This report shall be confidential. 12
(11) Failure to obtain consent pursuant to the requirements of this section is prima facie 13
evidence of failure to obtain informed consent and of interference with family 14
relations in appropriate civil actions. The law of this state shall not be construed to 15
preclude the award of exemplary damages in any appropriate civil action relevant to 16
violations of this section. Nothing in this section shall be construed to limit the 17
common-law rights of parents. 18
(12) A minor upon whom an abortion is performed is not guilty of violating this section. 19
Section 10. KRS 402.205 is amended to read as follows: 20
(1) A minor who is seventeen (17) years of age may petition the family court in the 21
county in which the minor resides, or the District Court in that county if a family 22
court division has not been established in that county, for an order granting 23
permission to marry. The petition shall contain the following: 24
(a) The petitioner's name, gender, age, date of birth, address, and how long the 25
petitioner has resided at that address, as well as prior addresses and dates of 26
residence for the six (6) months preceding the petition; 27 UNOFFICIAL COPY 25 RS BR 1373
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(b) The intended spouse's name, gender, age, date of birth, address, and how long 1
the intended spouse has resided at that address, as well as prior addresses and 2
dates of residence for the six (6) months preceding the petition; 3
(c) An affidavit attesting to the consent to marry signed by: 4
1. The father or the mother of the petitioner, if the parents are married, the 5
parents are not legally separated, no legal guardian has been appointed 6
for petitioner, and no court order has been issued granting custody of 7
petitioner to a party other than the father or mother; 8
2. Both the father and the mother, if both are living and the parents are 9
divorced or legally separated, and a court order of joint custody to the 10
parents of the petitioner has been issued and is in effect; 11
3. The surviving parent, if the parents were divorced or legally separated, 12
and a court order of joint custody to the parents of the petitioner was 13
issued prior to the death of either the father or mother, which order 14
remains in effect; 15
4. The custodial parent, as established by a court order which has not been 16
superseded, where the parents are divorced or legally separated and joint 17
custody of the petitioner has not been ordered; or 18
5. Another person having lawful custodial charge of the petitioner; 19
(d) A statement of the reasons why the petitioner desires to marry, how the parties 20
came to know each other, and how long they have known each other; 21
(e) Evidence of the petitioner's maturity and capacity for self-sufficiency 22
independent of the petitioner's parents and the intended spouse, including but 23
not limited to: 24
1. Proof that the petitioner has maintained stable housing or employment 25
for at least three (3) consecutive months prior to the petition; and 26
2. Proof that the petitioner has completed high school, obtained a High 27 UNOFFICIAL COPY 25 RS BR 1373
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School Equivalency Diploma, or completed a vocational training or 1
certificate program; 2
(f) Copies of any criminal records of either party to be married; and 3
(g) Copies of any domestic violence order or interpersonal protective order 4
involving either party to be married. 5
(2) Upon the filing of the petition for permission to marry, the court shall set a date for 6
an evidentiary hearing on the petition that is no sooner than thirty (30) days but not 7
later than sixty (60) days from the date of the filing. 8
(3) The petitioner may be represented by counsel in court proceeding pertaining to the 9
petition to marry. 10
(4) The court shall take reasonable measures to ensure that any representations made by 11
a minor party are free of coercion, undue influence, or duress. Reasonable measures 12
shall include but are not limited to in camera interviews. 13
(5) Following an evidentiary hearing, the court shall grant the minor's petition for 14
permission to marry unless: 15
(a) The age difference between the parties is more than four (4) years; 16
(b) The intended spouse was or is a person in a position of authority or a position 17
of special trust as defined in KRS 532.045 in relation to the minor; 18
(c) The intended spouse has previously been enjoined by a domestic violence 19
order or interpersonal protective order, regardless of whether or not the person 20
to be protected by the order was the minor petitioner; 21
(d) The intended spouse has been convicted of or entered into a diversion 22
program for a criminal offense against a victim who is a minor as defined in 23
KRS 17.500 or for a violent or sexual criminal offense under KRS Chapter 24
506, 507,[ 507A,] 508, 509, 510, 529, 530, or 531; 25
(e) The court finds by a preponderance of the evidence that the minor was a 26
victim and that the intended spouse was the perpetrator of a sexual offense 27 UNOFFICIAL COPY 25 RS BR 1373
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against the minor under KRS 510.040, 510.050, 510.060, 510.110, 510.120, 1
or 510.130; 2
(f) The court finds by a preponderance of the evidence that abuse, coercion, 3
undue influence, or duress is present; or 4
(g) The court finds that it would otherwise not be in the minor party's best interest 5
to grant the petition to marry. 6
(6) A past or current pregnancy of the minor or the intended spouse shall not be 7
sufficient evidence to establish that the best interests of the minor would be served 8
by granting the petition for marriage. 9
(7) The granting of a petition for permission to marry filed under subsection (1) of this 10
section shall remove the disabilities of minority. A minor emancipated by the 11
petition shall be considered to have all the rights and responsibilities of an adult, 12
except for specific constitutional or statutory age requirements, including but not 13
limited to voting, the use of alcoholic beverages, and other health and safety 14
regulations relevant to him or her because of his or her age. 15
(8) The minor shall be advised by the court of the rights and responsibilities of parties 16
to a marriage and of emancipated minors. The minor shall be provided with a fact 17
sheet on these rights and responsibilities to be developed by the Office of the 18
Attorney General and the Cabinet for Health and Family Services. The fact sheet 19
shall include referral information for legal aid agencies in the Commonwealth and 20
national hotlines for domestic violence and sexual assault. 21
(9) The court may make any other orders that the court deems appropriate for the 22
minor's protection and may impose any other condition on the grant of the petition 23
that the court determines is reasonable under the circumstances for the minor's 24
protection. 25
(10) The court may set a fee not to exceed twenty dollars ($20) to file a petition for 26
permission to marry under this section. 27 UNOFFICIAL COPY 25 RS BR 1373
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Section 11. KRS 439.265 is amended to read as follows: 1
(1) Subject to the provisions of KRS Chapter 439 and Chapters 500 to 534, any Circuit 2
Court may, upon motion of the defendant made not earlier than thirty (30) days nor 3
later than one hundred eighty (180) days after the defendant has been incarcerated 4
in a county jail following his or her conviction and sentencing pending delivery to 5
the institution to which he or she has been sentenced, or delivered to the keeper of 6
the institution to which he or she has been sentenced, suspend the further execution 7
of the sentence and place the defendant on probation upon terms the court 8
determines. Time spent on any form of release following conviction shall not count 9
toward time required under this section. 10
(2) The court shall consider any motion filed in accordance with subsection (1) of this 11
section within sixty (60) days of the filing date of that motion, and shall enter its 12
ruling within ten (10) days after considering the motion. The defendant may, in the 13
discretion of the trial court, have the right to a hearing on any motion he or she may 14
file, or have filed for him or her, that would suspend further execution of sentence. 15
Any court order granting or denying a motion to suspend further execution of 16
sentence is not reviewable. 17
(3) (a) During the period in which the defendant may file a motion pursuant to this 18
statute, the sentencing judge, within his or her discretion, may order that the 19
defendant be held in a local detention facility that is not at or above maximum 20
capacity until such time as the court rules on said motion. During this period 21
of detention, and prior to the court's ruling on said motion, the court may 22
require the defendant to participate in any approved community work program 23
or other forms of work release. Persons held in the county jail pursuant to this 24
subsection shall not be subject to transfer to a state correctional facility until 25
the decision is made not to place the petitioner on shock probation. 26
(b) The provisions concerning community work programs or other forms of work 27 UNOFFICIAL COPY 25 RS BR 1373
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release shall apply only to persons convicted of Class C or Class D felonies, 1
and may be granted only after a hearing at which the Commonwealth's 2
attorney has the opportunity to present arguments in favor or opposition 3
thereto. 4
(4) [(a) ]If the defendant is a violent offender as defined in KRS 439.3401, the 5
sentence shall not be probated under this section.[ 6
(b) The sentence shall not be probated under this section if the defendant has been 7
convicted of: 8
1. A violation of either KRS 507.040 or 507A.040 and a violation of KRS 9
189A.010 arising out of the same incident; or 10
2. A violation of either KRS 507.050 or 507A.050 and a violation of KRS 11
189A.010 arising out of the same incident.] 12
(5) If the defendant has been convicted of an offense under KRS 510.050, 510.080, 13
530.020, 530.064(1)(a), or 531.310, or criminal attempt to commit any of these 14
offenses under KRS 506.010, the sentence shall not be suspended, in accordance 15
with KRS 532.045. 16
(6) When a defendant has been convicted of a sex crime, as defined in KRS 17.500, the 17
court shall order a comprehensive sex offender presentence evaluation, unless one 18
has been provided within the past six (6) months, in which case the court may order 19
an update of the comprehensive sex offender presentence evaluation of the 20
defendant conducted by the sex offender treatment program operated or approved 21
by the Department of Corrections or the Sex Offender Risk Assessment Advisory 22
Board. The comprehensive sex offender presentence evaluation shall provide to the 23
court a recommendation related to the risk of a repeat offense by the defendant and 24
the defendant's amenability to treatment, and shall be considered by the court in 25
determining whether to suspend the sentence. If the court suspends the sentence and 26
places the defendant on probation, the provisions of KRS 532.045(3) to (7) shall 27 UNOFFICIAL COPY 25 RS BR 1373
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apply. 1
(7) The authority granted in this section shall be exercised by the judge who imposed 2
sentence on the defendant, unless he or she is unable to act and it appears that his or 3
her inability to act should continue beyond the expiration of the term of the court. 4
In such case, the judge who imposed sentence shall assign a judge to dispose of a 5
motion filed under this section, or as prescribed by the rules and practices 6
concerning the responsibility for disposition of criminal matters. 7
(8) The provisions of this section shall not apply where a sentence of death has been 8
imposed. 9
Section 12. The following KRS sections are repealed: 10
507A.010 Definitions -- Exceptions. 11
507A.020 Fetal homicide in the first degree. 12
507A.030 Fetal homicide in the second degree. 13
507A.040 Fetal homicide in the third degree. 14
507A.050 Fetal homicide in the fourth degree. 15
507A.060 Death sentence prohibited. 16
Section 13. The changes in law made by this Act apply only to conduct that 17
occurs on or after the effective date of this Act. Conduct that occurs before the effective 18
date of this Act is governed by the law in effect at the time the conduct occurred, and that 19
law is continued in effect for that purpose. 20
Section 14. Existing provisions relating to prenatal homicide or assault or 21
regulating abortion or abortion facilities are not repealed but are superseded to the extent 22
that those provisions may conflict with or may be inconsistent with Sections 1, 2, 3, 4, 5, 23
6, 7, and 8 of this Act. 24
Section 15. This Act may be cited as the Prenatal Equal Protection Act. 25