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Regular Session, 2011
HOUSE BILL NO. 645 (Substitute for House Bill No. 587 by Representative LaBruzzo)
BY REPRESENTATIVE LABRUZZO
ABORTION: Revises the Human Life Protection Act
AN ACT1
To amend and reenact R.S. 14:32.5(A) and R.S. 40:1299.30, 1299.33(D), 1299.34.5,2
1299.35.0, 1299.35.1(2), (4), (6), (8), and (9), and 1299.35.3, to enact R.S.3
40:1299.35.1(1)(d), and to repeal R.S. 40:1299.35.2, 1299.35.4, 1299.35.7, and4
1299.35.12, relative to abortion; to revise the definition of feticide; to repeal certain5
provisions relative to the prohibition of abortion; to repeal the federally funded6
Medicaid trigger to the prohibition of abortion; to modify certain definitions; to7
remove certain requirements relative to discrimination for refusal to participate in8
abortion; to provide with respect to the use of public funds; to modify legislative9
intent; to repeal provisions relative to abortions performed by physicians, the10
determination of viability, and ultrasound tests; to provide relative to the born-alive11
protection provision; to repeal provisions relative to the abortion after viability and12
the second attendant physician requirement; to repeal provisions relative to an13
abortion sought after rape or incest; to repeal certain medical emergency provisions;14
to provide an effective date; and to provide for related matters.15
Be it enacted by the Legislature of Louisiana:16
Section 1. R.S. 14:32.5(A) is hereby amended and reenacted to read as follows: 17
§32.5. Feticide defined; exceptions 18
A. Feticide is the killing of an unborn child by the act, procurement, or19
culpable omission of a person other than the mother of the unborn child. The offense20
of feticide shall not include acts which cause the death of an unborn child if those21
acts were committed during any abortion to which the pregnant woman or her legal22 HLS 11RS-1776 ENGROSSED
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guardian has consented or which was performed in an emergency as defined in R.S.1
40:1299.35.12. Nor shall the offense of feticide include acts which are committed2
pursuant to usual and customary standards of medical practice during diagnostic3
testing or therapeutic treatment.4
* * *5
Section 2. R.S. 40:1299.30, 1299.33(D), 1299.34.5, 1299.35.0, 1299.35.1(2), (4), (6),6
(8), and (9), and 1299.35.3 are hereby amended and reenacted and R.S. 40:1299.35.1(1)(d)7
is hereby enacted to read as follows: 8
§1299.30. Abortion; prohibition9
A. The provisions of this Act shall become effective immediately upon, and10
to the extent permitted, by the occurrence of any of the following circumstances:11
(1) Any decision of the United States Supreme Court which reverses, in12
whole or in part, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed. 2d 147 (1973),13
thereby, restoring to the state of Louisiana the authority to prohibit abortion.14
(2) Adoption of an amendment to the United States Constitution which, in15
whole or in part, restores to the state of Louisiana the authority to prohibit abortion.16
B. The provisions of this Act shall be effective relative to the appropriation17
of Medicaid funds, to the extent consistent with any executive order by the President18
of the United States, federal statute, appropriation rider, or federal regulation that19
sets forth the limited circumstances in which states must fund abortion to remain20
eligible to receive federal Medicaid funds pursuant to 42 U.S.C. 1396, et. seq.21
C. A. No person may knowingly administer to, prescribe for, or procure for,22
or sell to any pregnant woman any medicine, drug, or other substance with the23
specific intent of causing or abetting the termination of the life of an unborn human24
being child. No person may knowingly use or employ any instrument or procedure25
upon a pregnant woman with the specific intent of causing or abetting the26
termination of the life of an unborn human being child.27
D. B. Any violation of this Section shall be prosecuted pursuant to R.S.28
14:87.29 HLS 11RS-1776 ENGROSSED
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E. C. Nothing in this Section may be construed to prohibit the sale, use,1
prescription, or administration of a contraceptive measure, drug, or chemical, if it is2
administered prior to the time when a pregnancy could be determined through3
conventional medical testing and if the contraceptive measure is sold, used,4
prescribed, or administered in accordance with manufacturer instructions.5
F. D. It shall not be a violation of Subsection C A of this Section for a6
licensed physician health care professional to perform a medical procedure necessary7
in reasonable medical judgment to prevent the death or substantial risk of death due8
to a physical condition, or to prevent the serious, permanent impairment of a life-9
sustaining organ of a pregnant woman. However, the physician shall make10
reasonable medical efforts under the circumstances to preserve both the life of the11
mother and the life of her unborn child in a manner consistent with reasonable12
medical practice.13
G. E. Medical treatment provided to the mother by a licensed physician14
health care professional which results in the accidental or unintentional injury or15
death to the unborn child is not a violation of Subsection C A of this Section.16
H. F. Nothing in this Section may be construed to subject the pregnant17
mother upon whom any abortion is performed or attempted to any criminal18
conviction and penalty.19
I. G. The following terms as used in this Section shall have the following20
meanings:21
(1) "Pregnant" means the human female reproductive condition, of having22
a living unborn human being child within her body throughout the entire embryonic23
and fetal stages of the unborn child from fertilization to full gestation and childbirth.24
(2) "Unborn human being" means an individual living member of the25
species, homo sapiens, throughout the entire embryonic and fetal stages of the26
unborn child from fertilization to full gestation and childbirth. "Unborn child" means27
the unborn offspring of human beings from the moment of fertilization until birth.28 HLS 11RS-1776 ENGROSSED
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(3) "Fertilization" and "conception" means mean that point in time when a1
male human sperm penetrates the zona pellucida of a female human ovum.2
Wherever the words "fertilization" or "conception" are used, they shall also include3
human beings created through asexual forms of reproduction such as twinning,4
cloning, and the functional equivalent thereof.5
(4) "Health care professional" means:6
(a) A person who possesses a current license, certificate, registration, or7
other authority from a professional licensing board to provide health care services8
in this state.9
(b) Any person who is licensed or otherwise authorized by a professional10
licensing board to participate in a health care training program in this state.11
J. H. This Section shall be known, and may be cited, as the Human Life12
Protection Act.13
§1299.33. Governmental assistance; discrimination for refusal to participate in an14
abortion; prohibition 15
* * *16
D. No abortion shall be performed on any woman female. unless prior to the17
abortion she shall have been advised, orally and in writing, that she is not required18
to submit to the abortion and that she may refuse any abortion for any reason and19
without explanation and that she shall not be deprived of any governmental20
assistance or any other kind of benefits for refusing to submit to an abortion. This21
provision shall be of full force and effect notwithstanding the fact that the woman22
in question is a minor, in which event said minor's parents, or if a minor emancipated23
by marriage, the minor's husband, shall also be fully advised of their right to refuse24
an abortion for the minor in the same manner as the minor is advised. Compliance25
with this provision shall be evidenced by the written consent of the woman that she26
submits to the abortion voluntarily and of her own free will, and by written consent27
of her parents, if she is an unmarried minor, and by consent of her husband if she is28
a minor emancipated by marriage, such written consent to set forth the written advice29 HLS 11RS-1776 ENGROSSED
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given and the written consent and acknowledgment that a full explanation of the1
abortion procedure to be performed has been given and is understood. 2
* * *3
§1299.34.5. Use of public funds 4
A. Notwithstanding any other provision of law to the contrary, no public5
funds, made available to any institution, board, commission, department, agency,6
official, or employee of the state of Louisiana, or of any local political subdivision7
thereof, whether such funds are made available by the government of the United8
States, the state of Louisiana, or of a local governmental subdivision, or from any9
other public source shall be used in any way for, to assist in, or to provide facilities10
for an abortion. , except when the abortion is medically necessary to prevent the11
death of the mother.12
B. Notwithstanding any other provision of law to the contrary, no public13
funds made available to any institution, board, commission, department, agency,14
official, or employee of the state of Louisiana, or of any local political subdivision15
thereof, whether such funds are made available by the government of the United16
States, the state of Louisiana, or a local governmental subdivision, or from any other17
public source, shall be used in any way for, to assist in, or to provide facilities for an18
abortion, except for any of the following:19
(1) Whenever the abortion is necessary to save the life of the mother.20
(2) Whenever the abortion is being sought to terminate a pregnancy resulting21
from an alleged act of rape and all of the requirements of R.S. 40:1299.35.7(A) are22
met.23
(3) Whenever the abortion is being sought to terminate a pregnancy resulting24
from an alleged act of incest and all of the requirements of R.S. 40:1299.35.7(B) are25
met.26
C. The secretary of the Department of Health and Hospitals shall promulgate27
rules to insure that no funding of any abortion shall be made based upon a claim of28
rape or incest until the applicable requirements of R.S. 40:1299.35.7 have been29 HLS 11RS-1776 ENGROSSED
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complied with and written verification has been obtained from the physician1
performing the abortion and from the law enforcement official to whom the report2
is made, if applicable.3
D. Subsection A of this Section shall be superseded and Subsections B and4
C and R.S. 40:1299.35.7 shall become effective only when the circumstances in5
Subparagraph (1)(a) or in Subparagraph (2)(a) occur:6
(1)(a) A decision or order of a court of competent jurisdiction is rendered7
declaring the provisions of Subsection A unconstitutional, inconsistent with federal8
law, or otherwise unenforceable based on inconsistency with the Hyde Amendment,9
or enjoins the state or any of its officials from enforcing Subsection A while at the10
same time accepting federal funds pursuant to Title XIX, as modified by the Hyde11
Amendment, and then only if, as, and when a stay pending all appeals of the decision12
or order is denied, or, if a stay is granted, such stay expires or is no longer effective.13
(b) If such a decision or order is rendered, the state Department of Justice,14
on behalf of the state, shall vigorously and expeditiously pursue judicial remedies15
seeking to obtain a stay pending all appeals of the decision or order and its reversal.16
(2)(a) An order or decision of a court of competent jurisdiction is rendered17
affirming a finding of the administrator of the Health Care Financing Administration18
of the United States Department of Health and Human Services that Subsection A19
fails to substantially comply with the Hyde Amendment or denying a stay of the20
finding of the administrator and then only if, as, and when the state receives formal21
notification from the administrator that Medicaid funds, including but not limited to22
the federal percentage of Medicaid assistance payments pursuant to 42 U.S.C. 139623
et seq. allocated to the state from the United States government, will be withheld or24
terminated on a specified date.25
(b) If the administrator finds that the state is in noncompliance with the Hyde26
Amendment as it relates to funding certain abortions, the governor, the state27
Department of Justice, and the state Department of Health and Hospitals, on behalf28 HLS 11RS-1776 ENGROSSED
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of the state, shall vigorously and expeditiously pursue administrative and judicial1
remedies to obtain a stay of the finding and its reversal.2
(c) If such a decision or order is rendered by a court, the state Department3
of Justice, on behalf of the state, shall vigorously and expeditiously pursue judicial4
remedies seeking to obtain a stay of the decision or order and to seek its reversal.5
E. If Subsections B and C and R.S. 40:1299.35.7 become effective and6
subsequently the federal requirement for acceptance of Medicaid funds, that public7
funds be made available for abortions resulting from pregnancy due to rape or incest,8
is no longer applicable to the state of Louisiana, then on the same day, the provisions9
of Subsections B and C and R.S. 40:1299.35.7 shall be superseded and the provisions10
of Subsection A shall be effective to the fullest extent allowed by law.11
* * *12
§1299.35.0. Legislative intent 13
It is the intention of the Legislature of the State of Louisiana to regulate14
prohibit abortion to the extent permitted by the decisions of the United States15
Supreme Court. The Legislature does solemnly declare and find in reaffirmation of16
the longstanding policy of this State, that the unborn child is a human being from the17
time of conception and is, therefore, a legal person for purposes of the unborn child's18
right to life and is entitled to the right to life from conception under the laws and19
Constitution of this State. Further, the Legislature finds and declares that the20
longstanding policy of this State is to protect the right to life of the unborn child21
from conception by prohibiting abortion. impermissible only because of the22
decisions of the United States Supreme Court and that, therefore, if those decisions23
of the United States Supreme Court are ever reversed or modified or the United24
States Constitution is amended to allow protection of the unborn then the former25
policy of this State to prohibit abortions shall be enforced. 26
§1299.35.1. Definitions27
As used in R.S. 40:1299.35.0 through 1299.35.18, the following words have28
the following meanings:29 HLS 11RS-1776 ENGROSSED
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(1) "Abortion" or "induced abortion" means the act of using or prescribing1
any instrument, medicine, drug, or any other substance, device, or means with the2
intent to terminate the clinically diagnosable pregnancy of a woman with knowledge3
that the termination by those means will, with reasonable likelihood, cause the death4
of the unborn child. Such use, prescription, or means is not an abortion if done with5
the intent to:6
* * *7
(d) Perform a medical procedure necessary in the reasonable medical8
judgment of a licensed physician to prevent the death or substantial risk of death due9
to a physical condition, or to prevent the serious, permanent impairment of a life-10
sustaining organ of a pregnant woman. However, the physician shall make11
reasonable medical efforts under the circumstances to preserve both the life of the12
mother and the life of her unborn child in a manner consistent with reasonable13
medical practice. 14
(2) "Conception" and "fertilization" each mean the fusion of a human15
spermatozoon with a human ovum. "Fertilization" and "conception" mean that point16
in time when a male human sperm penetrates the zona pellucida of a female human17
ovum. Wherever the words "fertilization" or "conception" are used, they shall also18
include human beings created through asexual forms of reproduction such as19
twinning, cloning, or the functional equivalent thereof.20
* * *21
(4) "Good faith medical judgment" means a physician's use of reasonable22
care and diligence, along with his best judgment, in the application of his skill. The23
standard of care required of every health care provider, except a hospital, in24
rendering professional services or health care to a patient, shall be to exercise that25
degree of skill ordinarily employed, under similar circumstances, by the members26
of his profession in good standing in the same community or locality, but if the27
physician was performing abortion procedures that are considered to be included in28
the areas of a medical specialty, then the standard shall be that of the degree of skill29 HLS 11RS-1776 ENGROSSED
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ordinarily employed, under similar circumstances, by one practicing in good standing1
in that specialty.2
* * *3
(6) "Live birth" or "born alive", with respect to a member of the species4
homo sapiens, means the complete expulsion or extraction from its mother of that5
member, at any stage of development., who after that expulsion or extraction6
breathes or shows signs of life such as beating of the heart, pulsation of the umbilical7
cord, or definite movement of voluntary muscles, whether or not the umbilical cord8
has been cut or the placenta is attached, and regardless of whether the expulsion or9
extraction occurs as a result of natural or induced labor, cesarean section, or induced10
abortion.11
* * *12
(8) "Pregnant" means that female reproductive condition of having a13
developing embryo or fetus in the uterus which commences unborn child inside14
commencing at fertilization and implantation.15
(9) "Unborn child" or "fetus" means the unborn offspring of human beings16
from the moment of conception through pregnancy fertilization and until live birth.17
* * *18
§1299.35.3. Born-Alive Infant Protection Act19
A. In determining the meaning of any statute or of any rule, regulation, or20
interpretation of the various administrative agencies of this state, the words "person",21
"human being", "child", and "individual" include every infant member of the species22
homo sapiens who is born alive at any stage of development.23
B. An infant at any stage of development who has survived an abortion24
procedure resulting in his or her live birth shall be given reasonable and immediate25
medical care as provided in R.S. 40:1299.35.4(C).26
* * *27
Section 3. R.S. 40:1299.35.2, 1299.35.4, 1299.35.7, and 1299.35.12 are hereby28
repealed in their entirety.29 HLS 11RS-1776 ENGROSSED
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Section 4. This Act shall become effective upon signature by the governor or, if not1
signed by the governor, upon expiration of the time for bills to become law without signature2
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If3
vetoed by the governor and subsequently approved by the legislature, this Act shall become4
effective on the day following such approval.5
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
LaBruzzo HB No. 645
Abstract: Amends the Human Life Protection Act.
Present law (R.S. 14:32.5(A)) establishes the criminal offense of feticide. Provides that
feticide is the killing of an unborn child by the act, procurement, or culpable omission of a
person other than the mother of the unborn child. It also establishes the following limited
exceptions: (1) The offense of feticide shall not include acts which cause the death of an
unborn child if those acts were committed during any abortion to which the pregnant woman
or her legal guardian has consented or which was performed in an emergency as defined in
R.S. 40:1299.35.12 and (2) Nor shall the offense of feticide include acts which are
committed pursuant to usual and customary standards of medical practice during diagnostic
testing or therapeutic treatment.
Proposed law repeals the exceptions to the criminal offense of feticide.
Present law (R.S. 40:1299.30(A),(1), and (2)) establishes contingencies for the effectiveness
of abortion. Provides that the provisions of present law will become effective immediately
upon, and to the extent permitted, by the occurrence of any of the following circumstances:
(1) Any decision of the United States Supreme Court which reverses, in whole or in part,
Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed. 2d 147 (1973), thereby, restoring
to the state of Louisiana the authority to prohibit abortion.
(2) Adoption of an amendment to the United States Constitution which, in whole or in
part, restores to the state of Louisiana the authority to prohibit abortion.
Proposed law repeals present law.
Present law (R.S. 40:1299.30(B)) provides that the provisions of present law will become
effective relative to the appropriation of Medicaid funds, if any executive order by the
President of the United States, federal statute, appropriation rider, or federal regulation
establishes limited circumstances in which states must fund abortion to remain eligible to
receive federal Medicaid funds pursuant to federal law (42 U.S.C. 1396, et. seq.).
Proposed law repeals present law.
Present law (R.S. 40:1299.30(C)) provides that no person may knowingly administer to,
prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other
substance with the specific intent of causing or abetting the termination of the life of an
unborn human being. Further, provides that no person may knowingly use or employ any HLS 11RS-1776 ENGROSSED
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instrument or procedure upon a pregnant woman with the specific intent of causing or
abetting the termination of the life of an unborn human being.
Proposed law modifies present law by changing the term "human being" to "child."
Proposed law makes technical changes.
Present law (R.S. 40:1299.30(F)) provides that it is not a violation of present law for a
licensed physician to perform a medical procedure necessary in reasonable medical
judgment to prevent the death or substantial risk of death due to a physical condition, or to
prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman.
Proposed law changes the term "licensed physician" to "health care physician."
Present law (R.S. 40:1299.30(G)) provides that medical treatment that is provided to the
mother by a licensed physician which results in the accidental or unintentional injury or
death to the unborn child is not a violation of present law.
Proposed law changes the term "licensed physician" to "health care physician."
Present law (R.S. 40:1299.30(I)) provides that the following terms as used in present law
have the following meanings:
(1) "Pregnant" means the human female reproductive condition, of having a living
unborn human being within her body throughout the entire embryonic and fetal
stages of the unborn child from fertilization to full gestation and childbirth.
(2) "Unborn human being" means an individual living member of the species, homo
sapiens, throughout the entire embryonic and fetal stages of the unborn child from
fertilization to full gestation and childbirth.
(3) "Fertilization" means that point in time when a male human sperm penetrates the
zona pellucida of a female human ovum.
Proposed law modifies present law by changing the definition of "pregnant" to refer to a
living unborn child. Also repeals the definition of "unborn human being". Adds a definition
of "unborn child" which means the unborn offspring of human beings from the moment of
fertilization until birth. Proposed law modifies the definition of "fertilization" to include
"conception" and specifies that both mean that point in time when a male human sperm
penetrates the zona pellucida of a female human ovum. Further provides that wherever the
words fertilization or conception are used, they shall also include human beings created
through asexual forms of reproduction such as twinning, cloning, and the functional
equivalent thereof. Also adds the definition of "health care professional" which means: (1)
a person who possesses a current license, certificate, registration, or other authority from a
professional licensing board to provide health care services in this state and (2) any person
who is licensed or otherwise authorized by a professional licensing board to participate in
a health care training program in this state.
Present law (R.S. 40:1299.33(D)) provides that no abortion shall be performed on any
woman unless prior to the abortion she has been advised, orally and in writing, that she is
not required to submit to the abortion and that she may refuse any abortion for any reason
and without explanation and that she shall not be deprived of any governmental assistance
or any other kind of benefits for refusing to submit to an abortion. Also provides that present
law shall be of full force and effect even if the woman in question is a minor, in which event
said minor's parents, or if a minor emancipated by marriage, the minor's husband, shall also
be fully advised of their right to refuse an abortion for the minor in the same manner as the
minor is advised. Further provides that compliance with this provision shall be evidenced
by the written consent of the woman that she submits to the abortion voluntarily and of her HLS 11RS-1776 ENGROSSED
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own free will, and by written consent of her parents, if she is an unmarried minor, and by
consent of her husband if she is a minor emancipated by marriage, such written consent to
set forth the written advice given and the written consent and acknowledgment that a full
explanation of the abortion procedure to be performed has been given and is understood.
Proposed law modifies present law by specifying that no abortion can performed on any
female. Further it repeals the requirement that a woman must be advised, orally and in
writing, that she is not required to submit to an abortion and that she may refuse for any
reason and without explanation and that she shall not be deprived of any governmental
assistance or any other kinds of benefits for refusing to submit to an abortion. Also, repeals
the provision which made present law applicable to minors. Further, it repeals the
requirement that compliance with present law had to be evidenced by the written consent
of the following: (1) the woman, that she submits to the abortion voluntarily and of her on
free will; (2) her parents, if she is an unmarried minor; and (3) her husband if she is a minor
emancipated by marriage. Also, repeals the requirement that the written consent include the
type of written advice given and an acknowledgment that a full explanation of the abortion
procedure to be performed has been given and is understood.
Present law (R.S. 40:1299.34.5(A)) provides that no public funds, made available to any
institution, board, commission, department, agency, official, or employee of the state of
Louisiana, or of any local political subdivision thereof, whether such funds are made
available by the government of the United States, the state of Louisiana, or of a local
governmental subdivision, or from any other public source shall be used in any way for, to
assist in, or to provide facilities for an abortion, except when the abortion is medically
necessary to prevent the death of the mother
Proposed law repeals the exception to the prohibition against the use of public funds for an
abortion in circumstances where it is medically necessary to prevent the death of the mother.
Present law (R.S. 40:1299.34.5(B)) provides that no public funds made available to any
institution, board, commission, department, agency, official, or employee of the state of
Louisiana, or of any local political subdivision thereof, whether such funds are made
available by the government of the United States, the state of Louisiana, or a local
governmental subdivision, or from any other public source, shall be used in any way for, to
assist in, or to provide facilities for an abortion, except for any of the following:
(1) Whenever the abortion is necessary to save the life of the mother.
(2) Whenever the abortion is being sought to terminate a pregnancy resulting from an
alleged act of rape and all of the requirements of R.S. 40:1299.35.7(A) are met.
(3) Whenever the abortion is being sought to terminate a pregnancy resulting from an
alleged act of incest and all of the requirements of R.S. 40:1299.35.7(B) are met.
Proposed law repeals present law.
Present law (R.S. 40:1299.34.5(C)) requires the secretary of the Department of Health and
Hospitals to promulgate rules to insure that no funding of any abortion shall be made based
upon a claim of rape or incest until the applicable requirements of R.S. 40:1299.35.7 have
been complied with and written verification has been obtained from the physician
performing the abortion and from the law enforcement official to whom the report is made,
if applicable.
Proposed law repeals present law.
Present law (R.S. 40:1299.34.5(D)) provides that R.S. 40:1299.34.5(A) shall be superseded
and R.S. 40:1299.34.5(B) and (C) and R.S. 40:1299.35.7 shall become effective only when
the circumstances in R.S. 40:1299.34.5(D)(1)(a) or (2)(a) occur: HLS 11RS-1776 ENGROSSED
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(1)(a) A decision or order of a court of competent jurisdiction is rendered declaring
the provisions of R.S. 40:1299.34.5(A) unconstitutional, inconsistent with
federal law, or otherwise unenforceable based on inconsistency with the
Hyde Amendment, or enjoins the state or any of its officials from enforcing
Subsection A while at the same time accepting federal funds pursuant to Title
XIX, as modified by the Hyde Amendment, and then only if, as, and when
a stay pending all appeals of the decision or order is denied, or, if a stay is
granted, such stay expires or is no longer effective.
(b) If such a decision or order is rendered, the state Department of Justice, on
behalf of the state, shall vigorously and expeditiously pursue judicial
remedies seeking to obtain a stay pending all appeals of the decision or order
and its reversal.
(2)(a) An order or decision of a court of competent jurisdiction is rendered
affirming a finding of the administrator of the Health Care Financing
Administration of the United States Department of Health and Human
Services that Subsection A fails to substantially comply with the Hyde
Amendment or denying a stay of the finding of the administrator and then
only if, as, and when the state receives formal notification from the
administrator that Medicaid funds, including but not limited to the federal
percentage of Medicaid assistance payments pursuant to 42 U.S.C. 1396 et
seq. allocated to the state from the United States government, will be
withheld or terminated on a specified date.
(b) If the administrator finds that the state is in noncompliance with the Hyde
Amendment as it relates to funding certain abortions, the governor, the state
Department of Justice, and the state Department of Health and Hospitals, on
behalf of the state, shall vigorously and expeditiously pursue administrative
and judicial remedies to obtain a stay of the finding and its reversal.
(c) If such a decision or order is rendered by a court, the state Department of
Justice, on behalf of the state, shall vigorously and expeditiously pursue
judicial remedies seeking to obtain a stay of the decision or order and to seek
its reversal.
Proposed law repeals present law.
Present law (R.S. 40:1299.34.5(E)) provides that if R.S. 40:1299.34.5(B) and (C) and R.S.
40:1299.35.7 become effective and subsequently the federal requirement for acceptance of
Medicaid funds, that public funds be made available for abortions resulting from pregnancy
due to rape or incest, is no longer applicable to the state of Louisiana, then on the same day,
the provisions of R.S. 40:1299.34.5(B) and (C) and R.S. 40:1299.35.7 shall be superseded
and the provisions of R.S. 40:1299.34.5(A) shall be effective to the fullest extent allowed
by law.
Proposed law repeals present law.
Present law (R.S. 40:1299.35.0) provides legislative intent and indicates that it is the
intention of the Legislature of the State of Louisiana to regulate abortion to the extent
permitted by the decisions of the United States Supreme Court. Further the Legislature finds
and declares that the longstanding policy of this State is to protect the right to life of the
unborn child from conception by prohibiting abortion impermissible only because of the
decisions of the United States Supreme Court and that, therefore, if those decisions of the
United States Supreme Court are ever reversed or modified or the United States Constitution
is amended to allow protection of the unborn then the former policy of this State to prohibit
abortions shall be enforced.
Proposed law modifies present law by specifying that the intention of the Legislature is to
prohibit abortion. Repeals the provision which indicates the intention is to regulate abortion HLS 11RS-1776 ENGROSSED
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to the extent permitted by decisions of the United States Supreme Court. Further repeals the
provision which acknowledges that the prohibition of abortion is impermissible only because
of the decisions of the United States Supreme Court and that, therefore, if those decisions
of the United States Supreme Court are ever reversed or modified or the United States
Constitution is amended to allow protection of the unborn then the former policy of this
State to prohibit abortions shall be enforced.
Present law (R.S. 40:1299.35.1(1)) provides that for the purposes of R.S. 40:1299.35.0
through 1299.35.18, the following words have the following meanings:
(1) "Abortion" or "induced abortion" means the act of using or prescribing any
instrument, medicine, drug, or any other substance, device, or means with the intent
to terminate the clinically diagnosable pregnancy of a woman with knowledge that
the termination by those means will, with reasonable likelihood, cause the death of
the unborn child. Such use, prescription, or means is not an abortion if done with the
intent to:
(a) Save the life or preserve the health of an unborn child.
(b) Remove a dead unborn child caused by spontaneous abortion, missed abortion, or
inevitable abortion.
(c) Remove an ectopic pregnancy.
Proposed law adds to exceptions for abortions in present law a medical procedure necessary
in the reasonable medical judgment of a licensed physician to prevent the death or
substantial risk of death due to a physical condition, or to prevent the serious, permanent
impairment of a life-sustaining organ of a pregnant woman. Further provides that the
physician shall make reasonable medical efforts under the circumstances to preserve both
the life of the mother and the life of her unborn child in a manner consistent with reasonable
medical practice.
Present law (R.S. 40:1299.35.1(2)) defines "conception" and "fertilization" as each meaning
the fusion of a human spermatozoon with a human ovum.
Proposed law repeals the present law definition of "conception" and "fertilization." Further,
adds a new definition of "fertilization" and "conception" which mean that point in time when
a male human sperm penetrates the zona pellucida of a female human ovum. Further,
specifies that wherever the words fertilization or conception are used, they shall also include
human beings created through asexual forms of reproduction such as twinning, cloning, or
the functional equivalent thereof.
Present law (R.S. 40:1299.35.1(4)) defines "good faith medical judgment" as meaning a
physician's use of reasonable care and diligence, along with his best judgment, in the
application of his skill. Provides that the standard of care required of every health care
provider, except a hospital, in rendering professional services or health care to a patient,
shall be to exercise that degree of skill ordinarily employed, under similar circumstances,
by the members of his profession in good standing in the same community or locality, but
if the physician was performing abortion procedures that are considered to be included in
the areas of a medical specialty, then the standard shall be that of the degree of skill
ordinarily employed, under similar circumstances, by one practicing in good standing in that
specialty.
Proposed law modifies present law by deleting the provision relative to a physician's
performance of abortion procedures that are considered to be included in the areas of a
medical specialty and the standard shall be that of the degree of skill ordinarily employed,
under similar circumstances, by one practicing in good standing in that specialty.
Present law (R.S. 40:1299.35.1(6)) defines "live birth" or "born alive", with respect to a
member of the species homo sapiens, as meaning the complete expulsion or extraction from
its mother of that member, at any stage of development, who after that expulsion or HLS 11RS-1776 ENGROSSED
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extraction breathes or shows signs of life such as beating of the heart, pulsation of the
umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical
cord has been cut or the placenta is attached, and regardless of whether the expulsion or
extraction occurs as a result of natural or induced labor, cesarean section, or induced
abortion.
Proposed law modifies present law by deleting the provision that addresses the specific stage
of the development of a member of the species homo sapiens.
Present law (R.S. 40:1299.35.1(8)) defines "pregnant" as meaning that female reproductive
condition of having a developing embryo or fetus in the uterus which commences at
fertilization and implantation.
Proposed law modifies present law by deleting the language referring to embryo or fetus in
the uterus which commences and implantation. Instead, defines "Pregnant" as meaning that
female reproductive condition of having a developing unborn child inside commencing at
fertilization.
Present law (R.S. 40:1299.35.1(9)) defines "unborn child" or "fetus" as meaning the unborn
offspring of human beings from the moment of conception through pregnancy and until live
birth.
Proposed law modifies present law by deleting the term "fetus" and the words "conception
through pregnancy" and "live." Instead, defines "Unborn child" as meaning the unborn
offspring of human beings from the moment of fertilization and until live birth.
Present law (R.S. 40:1299.35.2) provides relative to an abortion by a physician, the
determination of viability, ultrasound tests, exceptions, and penalties as follows:
(1) Physician requirement. No person shall perform or induce an abortion unless that
person is a physician licensed to practice medicine in the state of Louisiana.
(2) Viability. Except in the case of a medical emergency, before a physician performs
an abortion, the physician, by use of his good faith medical judgment, shall first
determine if the unborn child is viable.
(3) Determination of Viability. In order to preserve the health of the woman, and in
order to assist in making an accurate finding of viability considering the gestational
age, weight, and lung maturity of the unborn child, the physician intending to
terminate a pregnancy shall first perform or cause to be performed an ultrasound
examination pursuant to the provisions of Subsection D of this Section. The
physician shall enter such findings and determination of viability in the medical
record of the pregnant woman, along with photographs or prints of the ultrasound
evidencing the findings.
(4) Ultrasound Requirements. Except in the case of a medical emergency, and in
addition to the provisions of R.S. 40:1299.35.6, consent to an abortion of an unborn
child at any stage of gestational development is voluntary and informed only if an
obstetric ultrasound is performed under the provisions of this Section.
(a) Qualifications to perform ultrasound. The ultrasound shall be performed by the
physician who is to perform the abortion, the referring physician, or a qualified
person working in conjunction with either physician. For purposes of this Section,
"qualified person" means a person having documented evidence that he or she has
completed a course in the operation of ultrasound equipment and is in compliance
with any other requirements of law regarding the operation of ultrasound equipment.
(b) Requirements. At least two hours prior to the woman having any part of an abortion
performed or induced, and prior to the administration of any anesthesia or
medication in preparation for the abortion on the woman, the physician who is to HLS 11RS-1776 ENGROSSED
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perform the abortion, the referring physician, or a qualified person working in
conjunction with either physician shall comply with all of the following
requirements:
(i) Perform an obstetric ultrasound on the pregnant woman and offer to
simultaneously display the screen which depicts the active ultrasound images
so that the pregnant woman may view them.
(ii) Offer to provide a simultaneous explanation of what the ultrasound is
depicting, which shall include the presence and location of the unborn child
within the uterus and the number of unborn children depicted, the dimensions
of the unborn child, and the presence of external members and internal
organs, if present and viewable.
(iii) Offer to provide the pregnant woman with a sealed envelope clearly marked
"ultrasound print" that contains an ultrasound photograph or print of her
unborn child of a quality consistent with current standard medical practice
that accurately portrays, to the extent feasible, the body of the unborn child
including external members, if present and viewable; provided that the
pregnant woman shall be informed that R.S. 40:1299.35.2 requires that she
be provided with the envelope containing the ultrasound print, but that there
is no requirement that she view the print image of her unborn child.
(iv) Orally read the following statement to the pregnant woman in the
examination room prior to beginning the ultrasound examination:
"Louisiana law requires that you be informed of three options that you may
request at any time during this ultrasound examination:
(aa) You have the option to view the ultrasound screen at any time during
the examination.
(bb) You have the option to receive an oral explanation of the ultrasound
images.
(cc) You have the option to receive an ultrasound photographic print.
Please inform me now or at any time during the ultrasound
examination if you want to view the screen, receive an oral
explanation or receive an ultrasound print."
(v) Obtain a written certification from the woman, after the ultrasound and prior
to the abortion, that the requirements of this Subsection have been complied
with.
(vi) Retain a copy of the written certification prescribed by present law. The
certification shall be placed in the medical file of the woman and shall be
kept by the abortion provider for a period of not less than seven years. If the
woman is a minor, the certification shall be placed in the medical file of the
minor and kept for at least seven years or for five years after the minor
reaches the age of majority, whichever is greater. The woman's medical files
shall be kept confidential as provided by law.
(c) Medical Emergencies.
(i) "Medical emergency" as used in this Section, means the existence of any
physical condition, not including any emotional, psychological, or mental
condition, which a reasonably prudent physician, with knowledge of the case
and treatment possibilities with respect to the medical conditions involved,
would determine necessitates the immediate abortion of the pregnancy to
avert the pregnant woman's death or to avert substantial and irreversible
impairment of a major bodily function arising from continued pregnancy.
(ii) Upon a determination by a physician that a medical emergency exists with
respect to a pregnant woman, the provider shall certify in writing the specific
medical conditions that constitute the emergency. The certification shall be
placed in the medical file of the woman and shall be kept by the abortion
provider for a period of not less than seven years. If the woman is a minor,
then the certification shall be placed in the medical file of the minor and kept
for at least seven years or for five years after the minor reaches the age of
majority, whichever is greater. The woman's medical files shall be kept
confidential as provided by law. HLS 11RS-1776 ENGROSSED
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(d) Civil penalties. In addition to whatever remedies are otherwise available under the
laws of this state, failure to comply with the requirements of this Section shall
provide a basis for professional disciplinary action provided for under law.
(e) Protection of privacy in court proceedings. In every civil or criminal proceeding or
action brought under this Section, the court shall rule whether the anonymity of any
female upon whom an abortion has been performed or attempted shall be preserved
from public disclosure if she does not give her consent to such disclosure. The court
may close any proceedings in the case and enter other protective orders to preserve
the privacy of the woman upon whom the abortion has been performed or attempted.
Present law cannot be construed to conceal the identity of the plaintiff or of
witnesses from the defendant.
Proposed law repeals present law.
Present law (R.S. 40:1299.35.3(A)) provides that in determining the meaning of any statute
or of any rule, regulation, or interpretation of the various administrative agencies of this
state, the words "person", "human being", "child", and "individual" include every infant
member of the species homo sapiens who is born alive at any stage of development.
Proposed law deletes the words "who is born alive" from present law.
Present law (R.S. 40:1299.35.3(B)) provides that an infant at any stage of development who
has survived an abortion procedure resulting in his or her live birth shall be given reasonable
and immediate medical care as provided in R.S. 40:1299.35.4(C).
Proposed law modifies present law by specifying that an infant at any stage of development
shall be given reasonable and immediate medical care.
Present law (R.S. 40:1299.35.4) provides with respect to abortion after viability and second
attendant physicians as follows:
(1) Before a physician may perform an abortion upon a pregnant woman whose unborn
child is viable, such physician shall first certify in writing that the abortion is
necessary to preserve the life or health of the woman and shall further certify in
writing the medical indications for such abortion and the probable health
consequences.
(2) Any physician who performs an abortion upon a woman carrying a viable unborn
child shall utilize the available method or technique of abortion most likely to
preserve the life and health of the unborn child. In cases where the method or
technique of abortion which would most likely preserve the life and health of the
unborn child would present a greater risk to the life and health of the woman than
another available method or technique, the physician may utilize such other method
or technique. In all cases where the physician performs an abortion upon a viable
unborn child, the physician shall certify in writing the available method or
techniques considered and the reasons for choosing the method or technique
employed.
(3) An abortion of a viable unborn child shall be performed or induced only when there
is in attendance a physician other than the physician performing or inducing the
abortion who shall take control of and provide immediate medical care for an infant
born alive as a result of the abortion. During the performance of the abortion, the
physician performing it, and subsequent to the abortion, the physician required by
this Section to be in attendance, shall take all reasonable steps in keeping with good
medical practice, consistent with the procedure used, to preserve the life and health
of the viable unborn child and born-alive infant, respectively, provided that it does
not pose an increased risk to the life or health of the woman. HLS 11RS-1776 ENGROSSED
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Proposed law repeals present law.
Present law (R.S. 40:1299.35.7) provides with respect to abortion sought due to rape or
incest and reporting and certification requirements as follows:
(1) Whenever an abortion is being sought pursuant to R.S. 40:1299.34.5 to terminate a
pregnancy resulting from an alleged act of rape, prior to the abortion all of the
following requirements shall be met:
(a) The rape victim shall report the rape to a law enforcement official unless the treating
physician certifies in writing that in the physician's professional opinion, the victim
was too physically or psychologically incapacitated to report the rape.
(b) The victim certifies that the pregnancy is the result of rape, which certificate shall
be witnessed by the treating physician.
(2) Whenever an abortion is being sought pursuant to R.S. 40:1299.34.5 to terminate a
pregnancy resulting from an alleged act of incest, prior to the abortion all of the
following requirements shall be met:
(a) The victim of incest shall report the act of incest to a law enforcement official unless
the treating physician certifies in writing that in the physician's professional opinion
the victim was too physically or psychologically incapacitated to report the incest.
(b) The victim certifies that the pregnancy is the result of incest, which certificate shall
be witnessed by the treating physician.
(3) The failure of the victim to comply with R.S. 40:1299.35.7(A) or (B), as applicable,
shall not subject the victim to the provisions of R.S. 40:1299.35.18.
(4) Whenever an abortion is being sought pursuant to R.S. 40:1299.34.5 to terminate a
pregnancy resulting from an alleged act of rape or incest, the victim may request
spiritual counseling and shall be offered the same informed consent information,
without the twenty-four-hour delay, contained in R.S. 40:1299.35.6(B), prior to the
performance of the abortion.
Proposed law repeals present law.
Present law (R.S. 40:1299.35.12) provides that the provisions of R.S. 40:1299.35.2,
1299.35.4, 1299.35.5, and 1299.35.6 shall not apply when a medical emergency compels the
immediate performance of an abortion because the continuation of the pregnancy poses an
immediate threat and grave risk to the life or permanent physical health of the pregnant
woman. Provides that within 24 hours, the attending physician shall certify to the
emergency need for the abortion and shall enter such certification in the medical record of
the pregnant woman.
Proposed law repeals present law.
Effective upon signature of governor or lapse of time for gubernatorial action.
(Amends R.S. 14:32.5(A) and R.S. 40:1299.30, 1299.33(D), 1299.34.5, 1299.35.0,
1299.35.1(2), (4), (6), (8), and (9), and 1299.35.3; Adds 40:1299.35.1(1)(d); Repeals R.S.
40:1299.35.2, 1299.35.4, 1299.35.7, and 1299.35.12)