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Regular Session, 2012 ENROLLED
SENATE BILL NO. 766 (Substitute of Senate Bill No. 593 by Senator Alario)
BY SENATORS ALARIO, JOHNS, MILLS AND NEVERS AND REPRESENTATIVES
ADAMS, ANDERS, ARMES, ARNOL D, BADON, BARRAS,
BARROW, BERTHELOT, BI LLIOT, STUART BI SHOP,
BROADWATER, BROWN, BURFORD, HENRY BURNS, TIM
BURNS, CARMODY, CHAMPAGNE, CHANEY, CONNICK,
CROMER, DANAHAY, DOVE, EDWARDS, FANNIN, GAROFALO,
GEYMANN, GISCLAIR, GUILLORY, GUINN, HARRIS, HARRISON,
HAVARD, HAZEL, HENRY, HENSGENS, HI LL, HODGES,
HOFFMANN, HOLLIS, HOWARD, HUVAL, JOHNSON, JONES,
KLECKLEY, LEBAS, LIGI, LOPINTO, LORUSSO, MACK, MILLER,
JAY MORRIS, JIM MORRIS, ORTEGO, PEARSON, PONTI, POPE,
PUGH, PYLANT, REYNOLDS, RITCHIE, SCHEXNAYDER,
SCHRODER, SEABAUGH, SIMON, ST. GERMAIN, TALBOT,
THIBAUT, THOMPSON, WHITNEY, PATRICK WILLIAMS AND
WILLMOTT
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
(c) In the unborn child, application of such painful stimuli is associated18
with significant increases in stress hormones known as the stress response.19
(d) Subjection to such painful stimuli is associated with long-term20
ACT No. 738 SB NO. 766 ENROLLED
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harmful neurodevelopmental effects, such as altered pain sensitivity and,1
possibly, emotional, behavioral, and learning disabilities later in life.2
(e) For the purposes of surgery on unborn children, fetal anesthesia is3
routinely administered and is associated with a decrease in stress hormones4
compared to their level when painful stimuli are applied without such5
anesthesia.6
(f) The position, asserted by some medical experts, that the unborn child7
is incapable of experiencing pain until a point later in pregnancy than twenty8
weeks after fertilization predominately rests on the assumption that the ability9
to experience pain depends on the cerebral cortex and requires nerve10
connections between the thalamus and the cortex. However, recent medical11
research and analysis, especially since 2007, provides strong evidence for the12
conclusion that a functioning cortex is not necessary to experience pain.13
(g) Substantial evidence indicates that children born missing the bulk of14
the cerebral cortex, those with hydranencephaly, nevertheless experience pain.15
(h) In adults, stimulation or ablation of the cerebral cortex does not alter16
pain perception, while stimulation or ablation of the thalamus does.17
(i) Substantial evidence indicates that structures used for pain processing18
in early development differ from those of adults, using different neural elements19
available at specific times during development, such as the subcortical plate, to20
fulfill the role of pain processing.21
(j) The position, asserted by some medical experts, that the unborn child22
remains in a coma-like sleep state that precludes the unborn child's23
experiencing pain is inconsistent with the documented reaction of unborn24
children to painful stimuli and with the experience of fetal surgeons who have25
found it necessary to sedate the unborn child with anesthesia to prevent the26
unborn child from thrashing about in reaction to invasive surgery.27
(k) Consequently, there is substantial medical evidence that an unborn28
child is capable of experiencing pain by twenty weeks after fertilization.29
(2)(a) It is the purpose of the state to assert a compelling state interest30 SB NO. 766 ENROLLED
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in protecting the lives of unborn children from the stage at which substantial1
medical evidence indicates that they are capable of feeling pain.2
( b) Louisiana's compelling state interest in protecting the lives of unborn3
children from the stage at which substantial medical evidence indicates that4
they are capable of feeling pain is intended to be separate from and independent5
of Louisiana's compelling state interest in protecting the lives of unborn6
children from the stage of viability, and neither state interest is intended to7
replace the other.8
(3) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in the9
context of determining the severability of a state statute regulating abortion the10
United States Supreme Court noted that an explicit statement of legislative11
intent specifically made applicable to a particular statute is of greater weight12
than a general savings or severability clause, it is the intent of the state that if13
any one or more provisions, sections, subsections, sentences, clauses, phrases or14
words of this Act or the application thereof to any person or circumstance is15
found to be unconstitutional, the same is hereby declared to be severable and16
the balance of this Act shall remain effective notwithstanding such17
unconstitutionality. Moreover, the state declares that it would have passed this18
Act, and each provision, section, subsection, sentence, clause, phrase or word19
thereof, irrespective of the fact that any one or more provisions, sections,20
subsections, sentences, clauses, phrases or words, or any of their applications,21
were to be declared unconstitutional.22
C. Definitions. For purposes of this Section, the following terms shall23
have the following meanings unless the context clearly indicates otherwise:24
(1) "Abortion" means the use or prescription of any instrument,25
medicine, drug, or any other substance or device to terminate the pregnancy of26
a woman known to be pregnant with an intention other than to increase the27
probability of a live birth, to preserve the life or health of the child after live28
birth, or to remove a dead unborn child who died as the result of natural causes29
in utero, accidental trauma, or a criminal assault on the pregnant woman or her30 SB NO. 766 ENROLLED
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unborn child, and which causes the premature termination of the pregnancy.1
(2) "Attempt to perform or induce an abortion" means an act, or an2
omission of a statutorily required act, that, under the circumstances as the actor3
believes them to be, constitutes a substantial step in a course of conduct planned4
to culminate in the performance or induction of an abortion in this state in5
violation of this Section.6
(3) "Department" means Department of Health and Hospitals.7
(4) "Fertilization" means the fusion of a human spermatozoon with a8
human ovum.9
(5) "Medical emergency" means a condition that, in reasonable medical10
judgment, so complicates the medical condition of the pregnant woman that it11
necessitates the immediate abortion of her pregnancy without first determining12
postfertilization age to avert her death or for which the delay necessary to13
determine postfertilization age will create serious risk of substantial and14
irreversible physical impairment of a major bodily function, not including15
psychological or emotional conditions. No condition shall be deemed a medical16
emergency if based on a claim or diagnosis that the woman will engage in17
conduct which she intends to result in her death or in substantial and18
irreversible physical impairment of a major bodily function.19
(6) "Medically futile" means that, in reasonable medical judgment, the20
unborn child has a profound and irremediable congenital or chromosomal21
anomaly that is incompatible with sustaining life after birth.22
(7) "Physician" means any person licensed to practice medicine and23
surgery or osteopathic medicine and surgery in the state of Louisiana.24
(8) "Postfertilization age" means the age of the unborn child as25
calculated from the fusion of a human spermatozoon with a human ovum.26
(9) "Probable postfertilization age of the unborn child" means what, in27
reasonable medical judgment, will with reasonable probability be the28
postfertilization age of the unborn child at the time the abortion is planned to29
be performed or induced.30 SB NO. 766 ENROLLED
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(10) "Reasonable medical judgment" means a medical judgment that1
would be made by a reasonably prudent physician, knowledgeable about the2
case and the treatment possibilities with respect to the medical conditions3
involved.4
(11) "Unborn child" or "fetus" each mean an individual organism of the5
species homo sapiens from fertilization until live birth.6
(12) "Woman" means a female human being whether or not she has7
reached the age of majority.8
D. Determination of postfertilization age.9
(1) Except in the case of a medical emergency or when a pregnancy is10
diagnosed as medically futile, no abortion shall be performed or induced or be11
attempted to be performed or induced unless the physician performing or12
inducing it has first made a determination of the probable postfertilization age13
of the unborn child or relied upon such a determination made by another14
physician. In making such a determination, the physician shall make such15
inquiries of the woman and perform or cause to be performed such medical16
examinations and tests as a reasonably prudent physician, knowledgeable about17
the case and the medical conditions involved, would consider necessary to18
perform in making an accurate diagnosis with respect to postfertilization age.19
(2) Failure by any physician to conform to any requirement of this20
Section constitutes "unprofessional conduct" pursuant to R.S. 37:1261.21
E. Abortion of unborn child of twenty or more weeks postfertilization22
age prohibited.23
(1) No person shall perform or induce or attempt to perform or induce24
an abortion upon a woman when it has been determined, by the physician25
performing or inducing or attempting to perform or induce the abortion or by26
another physician upon whose determination that physician relies, that the27
probable postfertilization age of the woman's unborn child is twenty or more28
weeks, unless the pregnancy is diagnosed as medically futile or, in reasonable29
medical judgment, she has a condition which so complicates her medical30 SB NO. 766 ENROLLED
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condition as to necessitate the abortion of her pregnancy to avert her death or1
to avert serious risk of substantial and irreversible physical impairment of a2
major bodily function, not including psychological or emotional conditions. No3
such greater risk shall be deemed to exist if it is based on a claim or diagnosis4
that the woman will engage in conduct which she intends to result in her death5
or in substantial and irreversible physical impairment of a major bodily6
function.7
(2) When an abortion upon a woman whose unborn child has been8
determined to have a probable postfertilization age of twenty or more weeks is9
not prohibited by Paragraph (1) of this Subsection, the physician shall10
terminate the pregnancy in the manner which, in reasonable medical judgment,11
provides the best opportunity for the unborn child to survive, unless, in12
reasonable medical judgment, termination of the pregnancy in that manner13
would pose a greater risk either of the death of the pregnant woman or of the14
substantial and irreversible physical impairment of a major bodily function, not15
including psychological or emotional conditions, of the woman than would other16
available methods. No such greater risk shall be deemed to exist if it is based17
on a claim or diagnosis that the woman will engage in conduct which she intends18
to result in her death or in substantial and irreversible physical impairment of19
a major bodily function.20
F. Penalties. Any person who intentionally or knowingly fails to comply21
with the requirements of this Section shall be subject to the penalties as22
provided for in R.S. 40:1299.35.19.23
G. Construction.24
This Section shall not be construed to repeal, by implication or25
otherwise, R.S. 40:1299.35.2 or any otherwise applicable provision of Louisiana26
law regulating or restricting abortion. An abortion that complies with this27
Section, but violates the provisions of R.S. 40:1299.35.2 or any otherwise28
applicable provision of Louisiana law, shall be deemed unlawful as provided in29
such provision. An abortion that complies with the provisions of R.S.30 SB NO. 766 ENROLLED
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40:1299.35.2 or any otherwise applicable provision of Louisiana law regulating1
or restricting abortion, but violates this Section, shall be deemed unlawful as2
provided in this Section. If some or all of the provisions of this Section are3
temporarily or permanently restrained or enjoined by judicial order, all other4
provisions of Louisiana law regulating or restricting abortion shall be enforced5
as though such restrained or enjoined provisions had not been adopted;6
provided, however, that whenever such temporary or permanent restraining7
order or injunction is stayed or dissolved, or otherwise ceases to have effect,8
such provisions shall have full force and effect.9
PRESIDENT OF THE SENATE
SPEAKER OF THE HOUSE OF REPRESENTATIVES
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED: