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2015 Regular Session
HOUSE BILL NO. 701
BY REPRESENTATIVES WHITNEY AND HOFFMANN
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
ABORTION: Prohibits abortion based on sex selection
1 AN ACT
2To amend and reenact R.S. 40:1299.35.6(B)(3)(d), and to enact R.S. 40:1299.30.2,
3 1299.35.2(A)(3), and 1299.35.10(A)(27) and (28), relative to abortion; to provide
4 relative to attempts to perform abortions; to prohibit certain actions undertaken in
5 connection with abortion; to provide for civil actions pursuant to violation of certain
6 abortion prohibitions; to provide for determination of age and sex of an unborn child
7 in certain instances; to provide for information to be communicated to a woman prior
8 to abortion; to provide relative to individual abortion reports; to provide a legislative
9 declaration; and to provide for related matters.
10Be it enacted by the Legislature of Louisiana:
11 Section 1. R.S. 40:1299.35.6(B)(3)(d) is hereby amended and reenacted and R.S.
1240:1299.30.2, 1299.35.2(A)(3), and 1299.35.10(A)(27) and (28) are hereby enacted to read
13as follows:
14 §1299.30.2. Abortion as means of sex selection; prohibition; civil actions
15 A.(1) Definition. As used in this Section "attempt to perform an abortion"
16 shall mean to do or omit to do anything that, under the circumstances as the actor
17 believes them to be, is an act or omission constituting a substantial step in a course
18 of conduct planned to culminate in an abortion. Such a substantial step may include,
19 without limitation, any of the following:
20 (a) Agreeing with an individual to perform an abortion on that individual or
21 on some other person, whether or not the term "abortion" is used in the agreement,
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1 and whether or not the agreement is contingent on another factor such as receipt of
2 payment or a determination of pregnancy.
3 (b) Scheduling or planning a time to perform an abortion on an individual,
4 whether or not the term "abortion" is used, and whether or not the performance is
5 contingent on another factor such as receipt of payment or a determination of
6 pregnancy.
7 (2) The definition provided in this Subsection shall not be construed to
8 require that an abortion procedure actually be initiated for an attempt to occur.
9 B. Prohibition. No person shall intentionally perform or attempt to perform
10 an abortion with knowledge that the pregnant woman is seeking the abortion because
11 of the sex of the unborn child.
12 C. Civil penalties. Any person upon whom an abortion was performed in
13 violation of this Section, or the father or a grandparent of the unborn child who was
14 the subject of such an abortion, may maintain an action against the person who
15 performed the abortion. Each person who establishes actual damages shall be
16 entitled to treble damages and punitive damages in the amount of ten thousand
17 dollars. No person shall be prohibited from recovery in such a suit on the grounds
18 that either the plaintiff or the woman upon whom the abortion was performed gave
19 consent to the abortion.
20 D.(1) Injunctive relief. A cause of action for injunctive relief against any
21 person who has knowingly violated a provision of this Section may be maintained
22 by any of the following persons:
23 (a) The woman upon whom an abortion was performed or attempted in
24 violation of this Section.
25 (b) A spouse, parent, sibling, or guardian of, or a current or former licensed
26 health care provider of, the woman upon whom an abortion has been performed or
27 attempted in violation of this Section.
28 (c) A state's attorney with appropriate jurisdiction.
29 (d) The attorney general.
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1 (2) The injunction provided for in this Subsection shall prevent the abortion
2 provider from performing further abortions in violation of this Section.
3 E.(1) Violation of injunction. Any person who knowingly violates the terms
4 of an injunction issued in accordance with Subsection D of this Section shall be
5 subject to civil contempt, and shall be fined ten thousand dollars for the first
6 violation, fifty thousand dollars for the second violation, one hundred thousand
7 dollars for the third violation, and for each succeeding violation an amount in excess
8 of one hundred thousand dollars sufficient to deter future violations. The fines
9 provided for in this Subsection shall be the exclusive penalties for such contempt and
10 shall be cumulative.
11 (2) Each performance or attempted performance of an abortion in violation
12 of the terms of an injunction provided for in this Subsection shall constitute a
13 separate violation.
14 (3) No fine shall be assessed against the woman upon whom an abortion is
15 performed or attempted.
16 F. Attorney fees. If judgment is rendered in favor of the plaintiff in any
17 action described in this Section, the court shall also render judgment for reasonable
18 attorney fees in favor of the plaintiff against the defendant. If judgment is rendered
19 in favor of the defendant and the court finds that the plaintiff's suit was frivolous and
20 brought in bad faith, the court shall render judgment for reasonable attorney fees in
21 favor of the defendant against the plaintiff.
22 G. Privacy. In each proceeding or action brought pursuant to the provisions
23 of this Section, the anonymity of any woman upon whom an abortion is performed
24 or attempted shall be preserved from public disclosure unless she gives her consent
25 to such disclosure. The court, upon motion or sua sponte, shall issue orders to the
26 parties, witnesses, and counsel, and shall direct the sealing of the record and
27 exclusion of individuals from courtrooms or hearing rooms to the extent necessary
28 to safeguard the woman's identity from public disclosure. In the absence of written
29 consent of the woman upon whom an abortion has been performed or attempted, any
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1 person who brings an action under Subsection C of this Section shall do so under a
2 pseudonym.
3 * * *
4 §1299.35.2. Abortion by physician; determination of viability, probable
5 postfertilization age, and sex; ultrasound test required; exceptions; penalties
6 A.
7 * * *
8 (3)(a) Except in the case of a medical emergency, the physician performing
9 or inducing an abortion shall determine the probable postfertilization age of the
10 unborn child in accordance with R.S. 40:1299.30.1(D).
11 (b)(i) If the unborn child is determined to have a probable postfertilization
12 age of ten weeks or greater, the physician shall attempt to determine the sex of the
13 unborn child according to the standard prescribed in Item (ii) of this Subparagraph.
14 If the sex is determined, the mother shall be informed of the sex at least twenty-four
15 hours before the abortion in accordance with R.S. 40:1299.35.6(B)(3). If the
16 physician is unable to determine the sex of the unborn child, the mother shall be
17 informed that the sex was not determinable.
18 (ii) In attempting to make the determination of sex, the physician shall
19 perform such medical examinations and tests as a reasonably prudent physician,
20 knowledgeable about the case and the medical conditions involved, would consider
21 necessary to perform in making an accurate diagnosis with respect to the sex of the
22 unborn child.
23 (c) For purposes of this Paragraph, the terms "medical emergency",
24 "postfertilization age", "probable postfertilization age of the unborn child", and
25 "unborn child" have the meanings ascribed in R.S. 40:1299.30.1(C).
26 * * *
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1 §1299.35.6. Woman's Right To Know
2 * * *
3 B. Informed consent; requirements. After a woman is determined to be
4 pregnant, no abortion shall be performed or induced without the voluntary and
5 informed consent of the woman upon whom the abortion is to be performed or
6 induced. Except in the case of a medical emergency, consent to an abortion is
7 voluntary and informed if and only if:
8 * * *
9 (3) Oral information from the physician. At least twenty-four hours before
10 the abortion, the physician who is to perform the abortion or the referring physician
11 has informed the woman, orally and in person, of:
12 * * *
13 (d)(i) The probable anatomical and physiological characteristics of the
14 unborn child at the time the abortion is to be performed.
15 (ii) The sex of the unborn child, if known.
16 * * *
17 §1299.35.10. Reports
18 A. An individual abortion report for each abortion performed or induced
19 shall be completed by the attending physician. The report shall be confidential and
20 shall not contain the name or address of the woman. The report shall include:
21 * * *
22 (27) The probable postfertilization age of the unborn child, as determined in
23 accordance with R.S. 40:1299.30.1(D).
24 (28) The sex of the unborn child, if known, as determined in accordance with
25 R.S. 40:1299.32(A)(3); or an indication that the sex of the unborn child was not
26 determinable.
27 * * *
28 Section 2. In accordance with R.S. 24:175, if any provision or item of this Act or the
29application thereof to any person or circumstance is found to be unconstitutional, the same
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1is hereby declared to be severable and the balance of this Act shall remain effective
2notwithstanding such unconstitutionality. The legislature hereby declares that it would have
3passed this Act, and each provision, section, subsection, sentence, clause, phrase, or word
4thereof, irrespective of the fact that any one or more provision or item be declared
5unconstitutional.
6 Section 3. The Louisiana State Law Institute is hereby authorized to redesignate the
7number of any Section of statute enacted by this Act in a manner that comports with the
8technical recodification provisions of House Concurrent Resolution No. 84 of this 2015
9Regular Session of the Legislature.
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)]
HB 701 Engrossed 2015 Regular Session Whitney
Abstract: Requires that physicians who perform or induce abortions determine the sex of
the unborn child in certain instances, prohibits abortion based on sex selection, and
provides for civil actions pursuant to violations of that prohibition.
Proposed law prohibits the performance of an abortion and any attempt to perform an
abortion by a person who has knowledge that the pregnant woman is seeking the abortion
because of the sex of the unborn child.
Proposed law defines "attempt to perform an abortion" as doing or omitting to do anything
that, under the circumstances as the actor believes them to be, is an act or omission
constituting a substantial step in a course of conduct planned to culminate in an abortion.
Provides that a "substantial step" may include, without limitation, all of the following:
(1)Agreeing with an individual to perform an abortion on that individual or on some
other person, whether or not the term "abortion" is used in the agreement, and
whether or not the agreement is contingent on another factor such as receipt of
payment or a determination of pregnancy.
(2)Scheduling or planning a time to perform an abortion on an individual, whether or
not the term "abortion" is used, and whether or not the performance is contingent on
another factor such as receipt of payment or a determination of pregnancy.
Proposed law provides that the definition of "attempt to perform an abortion" shall not be
construed to require that an abortion procedure actually be initiated for an attempt to occur.
Proposed law provides that any of the following persons may maintain an action against the
person who performed the abortion for treble damages and punitive damages in the amount
of $10,000:
(1)The person upon whom an abortion was performed in violation of proposed law.
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(2)The father of the unborn child who was the subject of the abortion.
(3)A grandparent of the unborn child who was the subject of the abortion.
Proposed law stipulates that no person shall be prohibited from recovery in such a suit on
the grounds that either the plaintiff or the woman upon whom the abortion was performed
gave consent to the abortion.
Proposed law provides that any of the following persons may maintain a cause of action for
injunctive relief against any person who has knowingly violated a provision of proposed law:
(1)The woman upon whom an abortion was performed or attempted in violation of
proposed law.
(2)A spouse, parent, sibling, or guardian of, or a current or former licensed health care
provider of, the woman upon whom an abortion has been performed or attempted in
violation of proposed law.
(3)A state's attorney with appropriate jurisdiction.
(4)The attorney general.
Proposed law stipulates that the injunction provided for in proposed law shall prevent the
abortion provider from performing further abortions in violation of proposed law.
Proposed law provides that any person who knowingly violates the terms of an injunction
issued in accordance with proposed law shall be subject to civil contempt and shall be fined
as follows:
(1)$10,000 for the first violation.
(2)$50,000 for the second violation.
(3)$100,000 for the third violation.
(4)For each succeeding violation, an amount in excess of $100,000 sufficient to deter
future violations.
Proposed law stipulates that no fine shall be assessed against the woman upon whom an
abortion is performed or attempted.
Proposed law provides for reasonable attorney fees in favor of the plaintiff against the
defendant, or the defendant against the plaintiff, depending upon which party the judgment
favors in a civil action brought pursuant to proposed law.
Proposed law provides that in each proceeding or action brought pursuant to proposed law,
the anonymity of any woman upon whom an abortion is performed or attempted shall be
preserved from public disclosure unless she gives her consent to disclosure.
Proposed law adds the following to requirements in present law of a physician who performs
or induces an abortion:
(1)If the unborn child is determined to have a probable postfertilization age of 10 weeks
or greater, the physician shall attempt to determine the sex of the unborn child
according to a standard prescribed in proposed law.
(2)If the sex is determined, the mother shall be informed of the sex at least 24 hours
before the abortion in accordance with proposed law.
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(3)If the physician is unable to determine the sex of the unborn child, the mother shall
be informed that the sex was not determinable.
(4)That the physician, in attempting to make the determination of sex, perform such
medical examinations and tests as a reasonably prudent physician, knowledgeable
about the case and the medical conditions involved, would consider necessary to
perform in making an accurate diagnosis with respect to the sex of the unborn child.
Proposed law adds to present law known as the "Woman's Right To Know" law a
requirement that the sex of the unborn child, if known, be communicated to the woman
orally and in person by the physician who is to perform the abortion or the referring
physician at least 24 hours before the abortion.
Proposed law adds to present law relative to individual abortion reports requirements that
the following information be included in the reports:
(1)The probable postfertilization age of the unborn child, as determined in accordance
with present law.
(2)The sex of the unborn child, if known, as determined in accordance with proposed
law; or an indication that the sex of the unborn child was not determinable.
Proposed law provides that in accordance with present law relative to severability (R.S.
24:175), if any provision or item of proposed law or the application thereof to any person
or circumstance is found to be unconstitutional, the same is declared to be severable and the
balance of proposed law shall remain effective notwithstanding such unconstitutionality.
Provides a declaration indicating that the legislature would have passed proposed law, and
each provision, section, subsection, sentence, clause, phrase, or word thereof, irrespective
of the fact that any provision or item be declared unconstitutional.
(Amends R.S. 40:1299.35.6(B)(3)(d); Adds R.S. 40:1299.30.2, 1299.35.2(A)(3), and
1299.35.10(A)(27) and (28))
Summary of Amendments Adopted by House
The Committee Amendments Proposed by House Committee on Health and Welfare to
the original bill:
1. Add the following to requirements in present law of a physician who performs
or induces an abortion:
(a)If the unborn child is determined to have a probable postfertilization age
of 10 weeks or greater, the physician shall attempt to determine the sex
of the unborn child according to a standard prescribed in proposed law.
(b)If the sex is determined, the mother shall be informed of the sex at least
24 hours before the abortion in accordance with proposed law.
(c)If the physician is unable to determine the sex of the unborn child, the
mother shall be informed that the sex was not determinable.
(d)That the physician, in attempting to make the determination of sex,
perform such medical examinations and tests as a reasonably prudent
physician, knowledgeable about the case and the medical conditions
involved, would consider necessary to perform in making an accurate
diagnosis with respect to the sex of the unborn child.
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2. Add to present law known as the "Woman's Right To Know" law a requirement
that the sex of the unborn child, if known, be communicated to the woman orally
and in person by the physician who is to perform the abortion or the referring
physician at least 24 hours before the abortion.
3. Add to present law relative to individual abortion reports requirements that the
following information be included in the reports:
(a)The probable postfertilization age of the unborn child, as determined in
accordance with present law.
(b)The sex of the unborn child, if known, as determined in accordance with
proposed law; or an indication that the sex of the unborn child was not
determinable.
4. Make technical changes.
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