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Regular Session, 2012
SENATE BILL NO. 766 (Substitute of Senate Bill No. 593 by Senator Alario)
BY SENATORS ALARIO AND MILLS
CHILDREN. Provides for the Pain-Capable Unborn Child Protection Act. (8/1/12)
AN ACT1
To To enact R.S. 40:1299.30.1, relative to abortion; to provide for the Pain-Capable Unborn2
Child Protection Act; to provide for legislative intent; to provide for definitions; to3
provide for the determination of postfertilization age; to provide for penalties; to4
provide for an effective date; and to provide for related matters.5
Be it enacted by the Legislature of Louisiana:6
Section 1. R.S. 40:1299.30.1 is hereby enacted to read as follows: 7
ยง1299.30.1 Pain-Capable Unborn Child Protection Act8
A. This Part may be cited as the "Pain-Capable Unborn Child Protection9
Act".10
B. Legislative intent. (1) The legislature makes the following findings:11
(a) Pain receptors (nociceptors) are present throughout the unborn12
child's entire body and nerves link these receptors to the brain's thalamus and13
subcortical plate by no later than twenty weeks.14
(b) By eight weeks after fertilization, the unborn child reacts to touch.15
After twenty weeks, the unborn child reacts to stimuli that would be recognized16
as painful if applied to an adult human, for example, by recoiling.17 SB NO. 766
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(c) In the unborn child, application of such painful stimuli is associated1
with significant increases in stress hormones known as the stress response.2
(d) Subjection to such painful stimuli is associated with long-term3
harmful neurodevelopmental effects, such as altered pain sensitivity and,4
possibly, emotional, behavioral, and learning disabilities later in life.5
(e) For the purposes of surgery on unborn children, fetal anesthesia is6
routinely administered and is associated with a decrease in stress hormones7
compared to their level when painful stimuli are applied without such8
anesthesia.9
(f) The position, asserted by some medical experts, that the unborn child10
is incapable of experiencing pain until a point later in pregnancy than twenty11
weeks after fertilization predominately rests on the assumption that the ability12
to experience pain depends on the cerebral cortex and requires nerve13
connections between the thalamus and the cortex. However, recent medical14
research and analysis, especially since 2007, provides strong evidence for the15
conclusion that a functioning cortex is not necessary to experience pain.16
(g) Substantial evidence indicates that children born missing the bulk of17
the cerebral cortex, those with hydranencephaly, nevertheless experience pain.18
(h) In adults, stimulation or ablation of the cerebral cortex does not alter19
pain perception, while stimulation or ablation of the thalamus does.20
(i) Substantial evidence indicates that structures used for pain processing21
in early development differ from those of adults, using different neural elements22
available at specific times during development, such as the subcortical plate, to23
fulfill the role of pain processing.24
(j) The position, asserted by some medical experts, that the unborn child25
remains in a coma-like sleep state that precludes the unborn child experiencing26
pain is inconsistent with the documented reaction of unborn children to painful27
stimuli and with the experience of fetal surgeons who have found it necessary28
to sedate the unborn child with anesthesia to prevent the unborn child from29 SB NO. 766
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thrashing about in reaction to invasive surgery.1
(k) Consequently, there is substantial medical evidence that an unborn2
child is capable of experiencing pain by twenty weeks after fertilization.3
(2)(a) It is the purpose of the state to assert a compelling state interest4
in protecting the lives of unborn children from the stage at which substantial5
medical evidence indicates that they are capable of feeling pain.6
( b) Louisiana's compelling state interest in protecting the lives of unborn7
children from the stage at which substantial medical evidence indicates that8
they are capable of feeling pain is intended to be separate from and independent9
of Louisiana's compelling state interest in protecting the lives of unborn10
children from the stage of viability, and neither state interest is intended to11
replace the other.12
(3) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in the13
context of determining the severability of a state statute regulating abortion the14
United States Supreme Court noted that an explicit statement of legislative15
intent specifically made applicable to a particular statute is of greater weight16
than a general savings or severability clause, it is the intent of the state that if17
any one or more provisions, sections, subsections, sentences, clauses, phrases or18
words of this Act or the application thereof to any person or circumstance is19
found to be unconstitutional, the same is hereby declared to be severable and20
the balance of this Act shall remain effective notwithstanding such21
unconstitutionality. Moreover, the state declares that it would have passed this22
Act, and each provision, section, subsection, sentence, clause, phrase or word23
thereof, irrespective of the fact that any one or more provisions, sections,24
subsections, sentences, clauses, phrases or words, or any of their applications,25
were to be declared unconstitutional.26
C. Definitions. For purposes of this Section, the following terms shall27
have the following meanings unless the context clearly indicates otherwise:28
(1) "Abortion" means the use or prescription of any instrument,29 SB NO. 766
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medicine, drug, or any other substance or device to terminate the pregnancy of1
a woman known to be pregnant with an intention other than to increase the2
probability of a live birth, to preserve the life or health of the child after live3
birth, or to remove a dead unborn child who died as the result of natural causes4
in utero, accidental trauma, or a criminal assault on the pregnant woman or her5
unborn child, and which causes the premature termination of the pregnancy.6
(2) "Attempt to perform or induce an abortion" means an act, or an7
omission of a statutorily required act, that, under the circumstances as the actor8
believes them to be, constitutes a substantial step in a course of conduct planned9
to culminate in the performance or induction of an abortion in this state in10
violation of this Section.11
(3) "Department" means Department of Health and Hospitals.12
(4) "Fertilization" means the fusion of a human spermatozoon with a13
human ovum.14
(5) "Medical emergency" means a condition that, in reasonable medical15
judgment, so complicates the medical condition of the pregnant woman that it16
necessitates the immediate abortion of her pregnancy without first determining17
postfertilization age to avert her death or for which the delay necessary to18
determine postfertilization age will create serious risk of substantial and19
irreversible physical impairment of a major bodily function, not including20
psychological or emotional conditions. No condition shall be deemed a medical21
emergency if based on a claim or diagnosis that the woman will engage in22
conduct which she intends to result in her death or in substantial and23
irreversible physical impairment of a major bodily function.24
(6) "Medically futile" means that, in the reasonable medical judgment25
of the attending physician, the unborn child has a profound and irremediable26
congenital or chromosomal anomaly that is incompatible with sustaining life27
after birth.28
(7) "Physician" means any person licensed to practice medicine and29 SB NO. 766
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surgery or osteopathic medicine and surgery in the state of Louisiana.1
(8) "Postfertilization age" means the age of the unborn child as2
calculated from the fusion of a human spermatozoon with a human ovum.3
(9) "Probable postfertilization age of the unborn child" means what, in4
reasonable medical judgment, will with reasonable probability be the5
postfertilization age of the unborn child at the time the abortion is planned to6
be performed or induced.7
(10) "Reasonable medical judgment" means a medical judgment that8
would be made by a reasonably prudent physician, knowledgeable about the9
case and the treatment possibilities with respect to the medical conditions10
involved.11
(11) "Unborn child" or "fetus" each mean an individual organism of the12
species homo sapiens from fertilization until live birth.13
(12) "Woman" means a female human being whether or not she has14
reached the age of majority.15
D. Determination of postfertilization age.16
(1) Except in the case of a medical emergency or when a pregnancy is17
diagnosed as medically futile, no abortion shall be performed or induced or be18
attempted to be performed or induced unless the physician performing or19
inducing it has first made a determination of the probable postfertilization age20
of the unborn child or relied upon such a determination made by another21
physician. In making such a determination, the physician shall make such22
inquiries of the woman and perform or cause to be performed such medical23
examinations and tests as a reasonably prudent physician, knowledgeable about24
the case and the medical conditions involved, would consider necessary to25
perform in making an accurate diagnosis with respect to postfertilization age.26
(2) Failure by any physician to conform to any requirement of this27
Section constitutes "unprofessional conduct" pursuant to R.S. 37:1261.28
E. Abortion of unborn child of twenty or more weeks postfertilization29 SB NO. 766
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age prohibited.1
(1) No person shall perform or induce or attempt to perform or induce2
an abortion upon a woman when it has been determined, by the physician3
performing or inducing or attempting to perform or induce the abortion or by4
another physician upon whose determination that physician relies, that the5
probable postfertilization age of the woman's unborn child is twenty or more6
weeks, unless the pregnancy is diagnosed as medically futile or, in reasonable7
medical judgment, she has a condition which so complicates her medical8
condition as to necessitate the abortion of her pregnancy to avert her death or9
to avert serious risk of substantial and irreversible physical impairment of a10
major bodily function, not including psychological or emotional conditions. No11
such greater risk shall be deemed to exist if it is based on a claim or diagnosis12
that the woman will engage in conduct which she intends to result in her death13
or in substantial and irreversible physical impairment of a major bodily14
function.15
(2) When an abortion upon a woman whose unborn child has been16
determined to have a probable postfertilization age of twenty or more weeks is17
not prohibited by Paragraph (1) of this Subsection, the physician shall18
terminate the pregnancy in the manner which, in reasonable medical judgment,19
provides the best opportunity for the unborn child to survive, unless, in20
reasonable medical judgment, termination of the pregnancy in that manner21
would pose a greater risk either of the death of the pregnant woman or of the22
substantial and irreversible physical impairment of a major bodily function, not23
including psychological or emotional conditions, of the woman than would other24
available methods. No such greater risk shall be deemed to exist if it is based25
on a claim or diagnosis that the woman will engage in conduct which she intends26
to result in her death or in substantial and irreversible physical impairment of27
a major bodily function.28
F. Penalties. Any person who intentionally or knowingly fails to comply29 SB NO. 766
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with the requirements of this Section shall be subject to the penalties as1
provided for in R.S. 40:1299.35.19.2
G. Construction.3
This Section shall not be construed to repeal, by implication or4
otherwise, R.S. 40:1299.35.2 or any otherwise applicable provision of Louisiana5
law regulating or restricting abortion. An abortion that complies with this6
Section but violates the provisions of R.S. 40:1299.35.2 or any otherwise7
applicable provision of Louisiana law shall be deemed unlawful as provided in8
such provision. An abortion that complies with the provisions of R.S.9
40:1299.35.2 or any otherwise applicable provision of Louisiana law regulating10
or restricting abortion but violates this Section shall be deemed unlawful as11
provided in this Section. If some or all of the provisions of this Section are12
temporarily or permanently restrained or enjoined by judicial order, all other13
provisions of Louisiana law regulating or restricting abortion shall be enforced14
as though such restrained or enjoined provisions had not been adopted;15
provided, however, that whenever such temporary or permanent restraining16
order of injunction is stayed or dissolved, or otherwise ceases to have effect,17
such provisions shall have full force and effect.18
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Tracy Sabina Sudduth.
DIGEST
Alario (SB 766)
Proposed law provides for the Pain-Capable Unborn Child Protection Act.
Proposed law provides for legislative intent.
Proposed law provides for severability if a court declares any provisions of proposed law to
be unconstitutional the balance of this Act shall remain effective.
Proposed law provides for definitions.
Proposed law provides that no abortion shall be performed or induced or be attempted to be
performed or induced unless the physician performing or inducing it has first made a
determination of the probable postfertilization age of the unborn child or relied upon such
a determination made by another physician. Proposed law provides for an exception in the
case of a medical emergency. SB NO. 766
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Proposed law prohibits an abortion of unborn child of 20 or more weeks postfertilization
age.
Proposed law provides that a failure by any physician to conform to the requirements of
proposed law constitutes "unprofessional conduct" pursuant to present law.
Proposed law provides that any person who intentionally or knowingly fails to comply with
the requirements of proposed law shall be fined not more than $1000, or imprisoned for not
more than two years, or both.
Proposed law shall not be construed to repeal, by implication or otherwise any applicable
provision of present law regulating or restricting abortion.
Effective August 1, 2012.
(Adds R.S. 40:1299.30.1)