SLS 12RS-479 ORIGINAL
Page 1 of 11
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
Regular Session, 2012
SENATE BILL NO. 593
BY SENATOR ALARIO
CHILDREN. Provides for the Viable and Pain-Capable Unborn Child Protection Act.
(8/1/12)
AN ACT1
To amend and reenact R.S. 40:1299.35.1(4), (7) through (11), 1299.35.2(B) and (C), the2
heading of R.S. 40:1299.35.4, 1299.35.4(A),(B) and (C) and 1299.35.12 and to enact3
R.S. 40:1299.35 and 1299.35.1(12),(13),(14) and (15) , relative to abortion; to4
provide for the Viable and Pain-Capable Unborn Child Protection Act; to provide for5
definitions; to provide for penalties; to provide for an effective date, and to provide6
for related matters.7
Section 1. R.S. 40:1299.35.1(4), (7) through (11), 1299.35.2(B) and (C), the heading8
of R.S. 40:1299.35.4, R.S. 1299.35.4(A),(B) and (C) and 1299.35.12 are hereby amended9
and reenacted and R.S. 40:1299.35 and 1299.35.1(12),(13),(14) and (15) are hereby enacted10
to read as follows: 11
§1299.35. Short title12
This Part may be cited as the "Viable and Pain-Capable Unborn Child13
Protection Act".14
§1299.35.1. Definitions15
As used in R.S. 40:1299.35.0 through 1299.35.19, the following words have16
the following meanings:17 SB NO. 593
SLS 12RS-479 ORIGINAL
Page 2 of 11
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
(1) * * *1
* * *2
(4) "Good faith medical judgment" means a physician's use of reasonable3
care and diligence, along with his best judgment, in the application of his skill. The4
standard of care required of every health care provider, except a hospital, in5
rendering professional services or health care to a patient, shall be to exercise that6
degree of skill ordinarily employed, under similar circumstances, by the members7
of his profession in good standing in the same community or locality, but if the8
physician was performing abortion procedures that are considered to be included in9
the areas of a medical specialty, then the standard shall be that of the degree of skill10
ordinarily employed, under similar circumstances, by one practicing in good standing11
in that specialty. (11)"Department" means the Department of Health and Hospitals.12
* * *13
(7) "Medical emergency" means the existence of any medical condition14
of a pregnant woman in which a reasonably prudent physician, with knowledge15
of the case and treatment possibilities with respect to the medical conditions16
involved, would determine that the immediate abortion or termination of17
pregnancy is necessary without first determining post-fertilization age or18
meeting the other requirements of this Part so as to avert the pregnant woman's19
death or to avert substantial and irreversible physical impairment of a major20
bodily function arising from continued pregnancy, not including psychological21
or emotional conditions.22
(7)(8) "Physician" means a person licensed to practice medicine in the state23
of Louisiana.24
(9)"Post-fertilization age" means the age of the unborn child as25
calculated from the fusion of a human spermatozoon with a human ovum.26
(8)(10) "Pregnant" means that female reproductive condition of having a27
developing embryo or fetus in the uterus which commences at fertilization and28
implantation.29 SB NO. 593
SLS 12RS-479 ORIGINAL
Page 3 of 11
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
(11) "Probable post-fertilization age of the unborn child" means what,1
in reasonable medical judgment, will with reasonable probability be the post-2
fertilization age of the unborn child at the time the abortion is planned to be3
performed or induced.4
(12) "Reasonable medical judgment" means a medical judgment that5
would be made by a reasonably prudent physician, knowledgeable about the6
case and the treatment possibilities with respect to the medical conditions7
involved.8
(13) "Termination of pregnancy after viability", means the deliberate9
and artificial termination of a pregnancy for reasons of medical emergency10
after the unborn child has reached the point of viability with knowledge that the11
termination of pregnancy will, with reasonable likelihood, create a serious risk12
to the sustained survival of the unborn child. This definition and the provisions13
of this Part shall not apply in any way to a natural or artificially induced14
delivery in a licensed hospital when the physician in reasonable good faith and15
under the ordinary standard of care determines that the unborn child has16
reached full term, and such physician intends to deliver the child alive, even if17
complications result in the death of the unborn child or the woman.18
(9)(14) "Unborn child" or "fetus" means the unborn offspring of human19
beings from the moment of conception through pregnancy and until live birth.20
(10)(15) "Viable" and "viability" each mean that stage of fetal development21
when, in the reasonable medical judgment of the physician based upon the22
particular facts of the case before him, and in light of the most advanced medical23
technology and information available to him, there is a reasonable likelihood of24
sustained survival of the unborn child outside the body of his mother, with or without25
artificial support; provided that there shall be a legal presumption that an26
unborn child is viable when the unborn child has reached the probable post-27
fertilization age of twenty weeks (the equivalent of a gestational age of twenty-28
two weeks or greater).29 SB NO. 593
SLS 12RS-479 ORIGINAL
Page 4 of 11
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
§1299.35.2. Abortion by physician; determination of viability; ultrasound test1
required; exceptions; penalties2
* * *3
B. Viability. Except in the case of a medical emergency, before a physician4
performs an abortion, the physician, by use of his good faith reasonable medical5
judgment, shall first determine the probable post-fertilization age of the unborn6
child to determine if the unborn child is viable and thus entitled to legal7
protection in accord with R.S. 1299.35.4, provided that there shall be a legal8
presumption that an unborn child is viable when the unborn child has reached9
the probable post-fertilization age of twenty weeks (the equivalent of a probable10
gestational age of twenty-two weeks or greater).11
C. Determination of Viability. In order to preserve the health of the woman,12
and in order to assist in making an accurate finding of viability considering13
gestational age, weight, and lung maturity of the unborn child, the physician14
intending to terminate a pregnancy perform an abortion shall first perform or cause15
to be performed an ultrasound examination pursuant to the provisions of Subsection16
D of this Section. The physician shall enter such findings and determination of17
viability in the medical record of the pregnant woman, along with photographs or18
prints of the ultrasound evidencing the findings.19
* * *20
§1299.35.4. Abortion after viability of viable, pain-capable unborn child21
prohibited; hospital requirement for termination of pregnancy22
after viability; second attendant physician required; duties23
A . Before a physician may perform an abortion upon a pregnant woman24
whose unborn child is viable, such physician shall first certify in writing that the25
abortion is necessary to preserve the life or health of the woman and shall further26
certify in writing the medical indications for such abortion and the probable health27
consequences. Prohibition; penalties. No person shall intentionally or knowingly28
perform or induce, or attempt to perform or induce, an abortion upon a woman29 SB NO. 593
SLS 12RS-479 ORIGINAL
Page 5 of 11
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
when it has been determined that the probable post-fertilization age of the1
woman's unborn child is twenty or more weeks, unless, in reasonable medical2
judgment, she has a condition which so complicates her medical condition as to3
necessitate the abortion of her pregnancy to avert her death or to avert serious4
risk of substantial and irreversible physical impairment of a major bodily5
function, not including psychological or emotional conditions. In addition to the6
civil remedies and criminal penalties provided by R.S. 40:1299.35.19, a violation7
of this Section shall provide a basis for professional disciplinary action and8
license revocation provided for under law.9
B. Good faith effort required to protect the life of the unborn child in10
terminations of pregnancy after viability; hospital requirement; prohibitions.11
(1) When the pregnant woman whose unborn child has been determined12
to have a probable post-fertilization age of twenty or more weeks is not13
prohibited due to a medical condition of the woman that requires a termination14
of pregnancy after viability to avert her death or to avert serious risk of15
substantial and irreversible physical impairment of a major bodily function, not16
including psychological or emotional conditions, the physician shall certify the17
supporting findings or medical conclusions in the woman's medical record and18
shall proceed medically only if necessary, in accord with the provisions of this19
Section.20
(2) Except in the case of medical emergency, a termination of pregnancy21
after viability under this Section shall be performed only in a properly licensed22
hospital. Any physician who induces performs an abortion upon a woman carrying23
a viable unborn child a termination of pregnancy after viability shall utilize the24
available method or technique of abortion most likely to preserve the life and health25
of the unborn child. In cases where the method or technique of abortion which26
would most likely preserve the life and health of the unborn child would present a27
greater risk to the life and health of the woman than another available method or28
technique, the physician may utilize such other method or technique. In all cases29 SB NO. 593
SLS 12RS-479 ORIGINAL
Page 6 of 11
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
where the physician performs induces a termination of pregnancy after viability1
an abortion upon a viable unborn child, the physician shall certify in writing the2
available method or techniques considered and the reasons for choosing the method3
or technique employed.4
(3) No person performing a termination of pregnancy after viability shall5
knowingly or intentionally harm or damage the brain, spinal cord, heart, lungs,6
or other vital organs of the unborn child, nor knowingly or intentionally cause7
the unborn child to be dismembered or poisoned, except in cases of medical8
emergency.9
C. Born-Alive Infant Care. Except in the case of medical emergency, An10
abortion of a viable unborn child a termination of pregnancy after viability as11
defined in R.S. 40:1299.35.1 shall be performed or induced only when there is in12
attendance a another physician other than the physician performing or inducing the13
abortion who shall take control of and provide immediate medical care for an infant14
born alive in accord with the ordinary and reasonable standard of care as a result15
of the abortion. During the performance of the abortion, the physician performing16
it, and subsequently to the abortion, the physician required by this Section to be in17
attendance, shall take all reasonable steps in keeping with good medical practice,18
consistent with the procedure used, to preserve the life and health of the viable19
unborn child and born-alive infant, respectively, provided that it does not pose an20
increased risk to the life or physical health of the woman.21
* * *22
§1299.35.12. Emergency23
The provisions of R.S. 40:1299.35.2, 1299.35.4, 1299.35.5, and 1299.35.624
R.S. 40:1299.35.0 through 1299.35.19 shall not apply to an abortion or25
termination of pregnancy in the case of when a medical emergency compels the26
immediate performance of an abortion because the continuation of the pregnancy27
poses an immediate threat and grave risk to the life or permanent physical health of28
the pregnant woman as defined in R.S. 40:1299.35.1. Within twenty-four hours, the29 SB NO. 593
SLS 12RS-479 ORIGINAL
Page 7 of 11
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
attending physician shall certify the medical reasons supporting to the medical1
emergency need for the abortion and shall enter such certification in the medical2
record of the pregnant woman.3
* * *4
Section 2. Legislative findings and purpose5
A. The Legislature's purposes in promulgating this Act, based on the6
following findings, include:7
(1) Based on the documented risks to women's health, prohibit abortions at8
or after twenty weeks post-fertilization except in cases of a medical emergency.9
(2) Prohibit abortions of unborn children presumed to be viable at or after10
twenty weeks post-fertilization, in part, because of the pain felt by an unborn child.11
(3) Define "medical emergency" to encompass only those circumstances in12
which a pregnant woman's life or a major, physical bodily function is threatened.13
Gonzales v. Carhart, 550 U.S. 124, 161 (2007).14
B. The Legislature makes the following findings:15
(1) Abortion can cause serious physical and psychological (both short- and16
long term) complications for women, including but not limited to: uterine17
perforation, uterine scarring, cervical perforation or other injury, infection, bleeding,18
hemorrhage, blood clots, failure to actually terminate the pregnancy, incomplete19
abortion (retained tissue), pelvic inflammatory disease, endometritis, missed ectopic20
pregnancy, cardiac arrest, respiratory arrest, renal failure, metabolic disorder, shock,21
embolism, coma, placenta previa in subsequent pregnancies, preterm delivery in22
subsequent pregnancies, free fluid in the abdomen, organ damage, adverse reactions23
to anesthesia and other drugs, psychological or emotional complications such as24
depression, anxiety, sleeping disorders, and death.25
(2) Abortion has a higher medical risk when the procedure is performed later26
in pregnancy. Compared to an abortion at eight weeks' gestation or earlier, the27
relative risk increases exponentially at higher gestations. L. Bartlett et al., Risk28
factors for legal induced abortion-related mortality in the United States,29 SB NO. 593
SLS 12RS-479 ORIGINAL
Page 8 of 11
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
OBSTETRICS & GYNECOLOGY 103(4):729–737 (2004).1
(3) The incidence of major complications is highest after 20 weeks of2
gestation. J. Pregler & A. DeCherney, WOMEN'S HEALTH: PRINCIPLES AND3
CLINICAL PRACTICE 232 (2002).4
(4) The risk of death associated with abortion increases with the length of5
pregnancy, from one death for every one million abortions at or before eight weeks6
gestation to one per 29,000 abortions at sixteen to twenty weeks and one per 11,0007
abortions at twenty-one or more weeks. L. Bartlett et al., Risk factors for legal8
induced abortion-related mortality in the United States, OBSTETRICS &9
GYNECOLOGY 103(4):729–737 (2004). After the first trimester, the risk of10
hemorrhage from an abortion, in particular, is greater, and the resultant11
complications may require a hysterectomy, other reparative surgery, or a blood12
transfusion.13
(5) The State of Louisiana has a legitimate concern for the public's health and14
safety. Williamson v. Lee Optical, 348 U.S. 483, 486 (1985).15
(6) The State of Louisiana "has legitimate interests from the outset of16
pregnancy in protecting the health of women." Planned Parenthood of Southeastern17
Pennsylvania v. Casey, 505 U.S. 833, 847 (1992); Planned Parenthood Arizona, Inc.18
v. American Ass'n of Pro-Life Obstetricians & Gynecologists, 257 P.3d 181, 19419
(Ariz.App. Div. 1,2011). More specifically, Louisiana "has a legitimate concern with20
the health of women who undergo abortions." Akron v. Akron Ctr. for Reproductive21
Health, Inc., 462 U.S. 416, 428-29 (1983).22
(7) There is substantial and well-documented medical evidence that an23
unborn child by at least twenty weeks gestation has the capacity to feel pain during24
an abortion. K. Anand, Pain and its effects in the human neonate and fetus, NEW25
ENGLAND JOURNAL OF MEDI CINE, 317:1321-29 (1987).26
(8) Pain receptors (nociceptors) are present throughout the unborn child's27
entire body by no later than sixteen weeks after fertilization and nerves link these28
receptors to the brain's thalamus and subcortical plate by no later than twenty weeks.29 SB NO. 593
SLS 12RS-479 ORIGINAL
Page 9 of 11
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
(9) By eight weeks after fertilization, the unborn child reacts to touch. After1
twenty weeks post-fertilization, the unborn child reacts to stimuli that would be2
recognized as painful if applied to an adult human, for example, by recoiling.3
(10) In the unborn child, application of such painful stimuli is associated with4
significant increases in stress hormones known as the stress response.5
(11) Subjection to such painful stimuli is associated with long-term harmful6
neurodeveolopmental effects, such as altered pain sensitivity and, possibly,7
emotional, behavioral, and learning disabilities later in life.8
(12) For the purposes of surgery on unborn children, fetal anesthesia is9
routinely administered and is associated with a decrease in stress hormones10
compared to their level when painful stimuli is applied without such anesthesia.11
(13) The position, asserted by some medical experts, that the unborn child is12
incapable of experiencing pain until a point later in pregnancy than twenty weeks13
after fertilization predominately rests on the assumption that the ability to experience14
pain depends on the cerebral cortex and requires nerve connections between the15
thalamus and the cortex. However, recent medical research and analysis, especially16
since 2007, provides strong evidence for the conclusion that a functioning cortex is17
not necessary to experience pain.18
(14) Substantial evidence indicates that children born missing the bulk of the19
cerebral cortex, those with hydranencephaly, nevertheless experience pain.20
(15) In adults, stimulation or ablation of the cerebral cortex does not alter21
pain perception, while stimulation or ablation of the thalamus does.22
(16) Substantial evidence indicates that structures used for pain processing23
in early development differ from those of adults, using different neural elements24
available at specific times during development, such as the subcortical plate, to fulfill25
the role of pain processing.26
(17) The position, asserted by some medical experts, that the unborn child27
remains in a coma-like sleep state that precludes the unborn child experiencing pain28
is inconsistent with the documented reaction of unborn children to painful stimuli29 SB NO. 593
SLS 12RS-479 ORIGINAL
Page 10 of 11
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
and with the experience of fetal surgeons who have found it necessary to sedate the1
unborn child with anesthesia to prevent the unborn child from thrashing about in2
reaction to invasive surgery.3
(18) Consequently, there is substantial medical evidence that an unborn child4
is capable of experiencing pain by twenty weeks after fertilization.5
(19) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in the6
context of determining the severability of a state statute regulating abortion the7
United States Supreme Court noted that an explicit statement of legislative intent8
specifically made applicable to a particular statute is of greater weight than a general9
savings or severability clause, it is the intent of the state that if anyone or more10
provisions, sections, subsections, sentences, clauses, phrases or words of this Act or11
the application thereof to any person or circumstance is found to be unconstitutional,12
the same is hereby declared to be severable and the balance of this Act shall remain13
effective notwithstanding such unconstitutionality. Moreover, the state declares that14
it would have passed this Act, and each provision, section, subsection, sentence,15
clause, phrase or word thereof, irrespective of the fact that any one or more16
provisions, sections, subsections, sentences, clauses, phrases or words, or any of their17
applications, were to be declared unconstitutional.18
Section 3. If any provision or item of this Act, or the application thereof, is held19
invalid, such invalidity shall not affect other provisions, items, or applications of the act20
which can be given effect without the invalid provision, item, or application and to this end21
the provisions of this Act are hereby declared severable.22
Section 4. This Act shall become effective August 1, 2012.23 SB NO. 593
SLS 12RS-479 ORIGINAL
Page 11 of 11
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Tracy Sabina Sudduth.
DIGEST
593
Proposed law enacts the "Viable and Pain-Capable Unborn Child Protection Act".
Proposed law provides for professional disciplinary action and license revocation for any
person who intentionally or knowingly performs or induces, or attempt to perform or induce,
an abortion upon a woman when it has been determined that the probable post-fertilization
age of the woman's unborn child is 20 or more weeks.
Proposed law provides that there shall be a legal presumption that an unborn child is viable
when the unborn child has reached the probable post-fertilization age of 20 weeks.
Proposed law provides legislative findings and purposes.
Effective August 1, 2012.
(Amends R.S. 40:1299.35.1(4), (7)-(11), 1299.35.2(B) and (C), 1299.35.4(heading), (A),(B)
and (C) and 1299.35.12; adds R.S. 40:1299.35, 1299.35.1(12),(13),(14) and (15))