SLS 22RS-416 REENGROSSED
2022 Regular Session
SENATE BILL NO. 388
BY SENATORS HEWITT, ABRAHAM, ALLAIN, BARROW, CATHEY, CLOUD,
CONNICK, CORTEZ, FESI, JACKSON, MCMATH, MILLIGAN,
FRED MILLS, ROBERT MILLS, MORRIS, PEACOCK, POPE,
REESE, STINE, TALBOT, TARVER, WARD AND WOMACK AND
REPRESENTATIVE MOORE
ABORTION. Prohibits the sale of certain abortion-inducing drugs without a prescription
and provides for criminal penalties. (8/1/22)
1 AN ACT
2 To amend and reenact R.S. 14:32.9 and R.S. 51:1402(10) and to enact R.S. 40:962.2,
3 relative to abortion-inducing drugs and the crime of criminal abortion; to define
4 criminal abortion; to prohibit criminal abortion by means of the use of an abortion-
5 inducing drug without the prescribing physician being physically present during the
6 administration of the drug; to provide criminal penalties; to provide for defenses; to
7 prohibit the selling, prescribing, distributing, dispensing, or delivering of certain
8 abortion-inducing drugs under certain circumstances; to define abortion-inducing
9 drugs; to provide for exceptions; to provide for the promulgation of rules; to provide
10 for unfair trade practices; and to provide for related matters.
11 Be it enacted by the Legislature of Louisiana:
12 Section 1. R.S. 14:32.9 is hereby amended and reenacted to read as follows:
13 §32.9. Criminal abortion
14 A. Criminal abortion is committed when a person knowingly does either
15 of the following:
16 (1) Performs an abortion, with or without the consent of the pregnant woman
17 or her legal guardian, that results in the death of an unborn child when the abortion
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1 is performed by any individual who is not a physician licensed by the state of
2 Louisiana.
3 (2) Causes an abortion to occur by means of delivering, dispensing,
4 distributing, or providing a pregnant woman with an abortion-inducing drug
5 when the person administering the drug is not a physician licensed by the state
6 of Louisiana who administers the abortion-inducing drug in person to the
7 pregnant woman.
8 B. As used in this Section, the following terms, whether used in the
9 singular or plural, shall have the following meanings:
10 (1) "Abortion" means the act of using or prescribing any instrument,
11 medicine, drug, or any other substance, device, or means with the intent to terminate
12 the clinically diagnosable pregnancy of a woman with knowledge that the
13 termination by those means will, with reasonable likelihood, cause the death of the
14 unborn child is reasonably likely to occur. Such use, prescription, or means is not
15 an abortion if done with the intent to:
16 (a) Save the life or preserve the health of an unborn child.
17 (b) Remove a dead unborn child or induce delivery of the uterine contents in
18 case of a positive diagnosis, certified in writing in the woman's medical record along
19 with the results of an obstetric ultrasound test, that the pregnancy has ended or is in
20 the unavoidable and untreatable process of ending due to spontaneous miscarriage,
21 also known in medical terminology as spontaneous abortion, missed abortion,
22 inevitable abortion, incomplete abortion, or septic abortion.
23 (c) Remove an ectopic pregnancy.
24 (2) "Abortion-inducing drug" means a drug, medicine, or other
25 substance prescribed, dispensed, or distributed that is intended to cause an
26 abortion. "Abortion-inducing drug" includes the use of drugs, medicines, or
27 other substances that are known to have abortion-inducing properties including
28 the Mifeprex regimen, misoprostol (Cytotec), or methotrexate.
29 (2)(3) "Physician" means a natural person who is the holder of an allopathic
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1 (M.D.) degree or an osteopathic (D.O.) degree from a medical college in good
2 standing with the Louisiana State Board of Medical Examiners who holds a license,
3 permit, certification, or registration issued by the Louisiana State Board of Medical
4 Examiners to engage in the practice of medicine in this state.
5 (4) "Serious bodily injury" means bodily injury which involves
6 unconsciousness; extreme physical pain; protracted and obvious disfigurement;
7 protracted loss or impairment of the function of a bodily member, organ, or
8 mental faculty; loss or damage to reproductive capacity; or a substantial risk
9 of death.
10 (3)(5) "Unborn child" means the unborn offspring of human beings from the
11 moment of conception through pregnancy and until live birth shall have the same
12 meaning as provided in R.S. 14:2.
13 C.(1) Any person who knowingly performs or induces an abortion in
14 violation of this Section commits the crime of performing a criminal abortion
15 and shall be imprisoned at hard labor for not less than one nor more than five years,
16 fined not less than five thousand nor more than fifty thousand dollars, or both.
17 (2) Any person who knowingly performs an abortion in violation of this
18 Section that results in the death or serious bodily injury of the pregnant woman
19 shall be imprisoned at hard labor for not less than five nor more than ten years,
20 fined not less than ten thousand nor more than seventy-five thousand dollars,
21 or both.
22 (3) Any person who knowingly performs or induces an abortion that
23 results in the death or serious bodily injury of a pregnant woman under the age
24 of eighteen in violation of this Section shall be imprisoned at hard labor for not
25 less than fifteen nor more than fifty years, fined not less than fifteen thousand
26 nor more than one hundred thousand dollars, or both.
27 D. Statutory Construction and Defenses. None of the following shall be
28 construed to create the crime of criminal abortion and shall be defenses against
29 prosecution:
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1 (1) Any action taken when a physician or other licensed medical professional
2 is acting in the course of administering lawful medical care and an unborn child dies.
3 (2) Any act taken or omission by a pregnant woman with regard to her own
4 unborn child.
5 (3) Possessing for her own consumption or consuming an abortion-
6 inducing drug by a pregnant woman in violation of this Section shall not subject
7 the pregnant woman to the criminal consequences.
8 (4) Lawfully prescribing, dispensing, or distributing a drug, medicine,
9 or other substance for a bona fide medical reason that is not intended to cause
10 an abortion in violation of this Section.
11 Section 2. R.S. 40:962.2 is hereby enacted to read as follows:
12 §962.2. Chemical abortion and abortion-inducing drugs; restrictions of sales;
13 exceptions; penalties
14 A. Except as provided in R.S. 40:1061.11, no abortion-inducing drug may
15 be sold, prescribed, dispensed, distributed, or delivered in this state in violation
16 of this Section.
17 B. As used in this Section, "abortion-inducing drug" shall have the same
18 meaning as provided in R.S. 14:32.9. "Abortion-inducing drug" shall not
19 include any of the following:
20 (1) Contraceptive drugs or devices.
21 (2) Plan B or the morning-after pill.
22 (3) Other emergency contraception.
23 C. Notwithstanding any other provision of law to the contrary, delivery
24 to a person in Louisiana by mail-order, courier, or as a result of a sale made via
25 the internet in violation of this Section is strictly prohibited.
26 D. The Department of Health may promulgate rules pursuant to the
27 Administrative Procedure Act to provide for exemptions from this Section for
28 products using an abortion-inducing drug which are distributed for other
29 purposes that do not include causing an abortion.
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1 E.(1) Whoever violates any provision of this Section shall be fined not
2 more than one thousand dollars or imprisoned for not more than six months,
3 or both.
4 (2) Each instance of a sale or distribution of an abortion-inducing drug
5 shall be considered a separate offense for purposes of the penalties provided in
6 Paragraph (1) of this Subsection.
7 F. Possessing for her own consumption or consuming an abortion-
8 inducing drug by a pregnant woman in violation of this Section shall not subject
9 the pregnant woman to the criminal consequences.
10 Section 3. R.S. 51:1402(10) is hereby amended and reenacted to read as follows:
11 §1402. Definitions
12 As used in this Chapter, the following words and phrases shall have the
13 meanings hereinafter ascribed to them:
14 * * *
15 (10)(a) "Trade" or "commerce" means the advertising, offering for sale, sale,
16 or distribution of any services and any property, corporeal or incorporeal, immovable
17 or movable, and any other article, commodity, or thing of value wherever situated,
18 and includes any trade or commerce directly or indirectly affecting the people of the
19 state.
20 (b) "Trade" or "commerce" shall include the advertising, offering for
21 sale, sale, or distribution of a chemical abortion drug in violation of R.S.
22 40:962.2.
23 Section 4. If any provision or item of this Act, or the application thereof, is held
24 invalid, such invalidity shall not affect other provisions, items, or applications of the Act
25 which can be given effect without the invalid provision, item, or application and to this end
26 the provisions of this Act are hereby declared severable.
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The original instrument was prepared by Carla S. Roberts. The following
digest, which does not constitute a part of the legislative instrument, was
prepared by Cheryl Serrett.
DIGEST
SB 388 Reengrossed 2022 Regular Session Hewitt
Present law provides for the crime of criminal abortion. Present law defines "criminal
abortion" as the performance of an abortion where the abortionist is not a La. licensed
physician. Present law provides that any person who is guilty of criminal abortion will be
imprisoned at hard labor for not less than one nor more than five years, fined not less than
$5,000 nor more than $50,000, or both.
Proposed law retains present law but expands the definition for the crime of criminal
abortion to include the delivering, dispensing, distributing, or providing a pregnant woman
with an abortion-inducing drug when the person administering the drug is not a physician
licensed by the state who administers the abortion-inducing drug in person to the pregnant
woman.
Proposed law defines "abortion-inducing drug" as a drug, medicine or other substance that
is intended to cause an abortion. Includes drugs known to have abortion-inducing properties
such as Mifeprex regimen, misoprostol, or methotrexate.
Proposed law defines "serious bodily injury" as bodily injury involving unconsciousness,
extreme physical pain, protracted and obvious disfigurement, protracted loss or impairment
of the function of a bodily member, organ, or mental faculty, loss or damage to reproductive
capacity, or a substantial risk of death.
Proposed law increases the criminal penalties when a person knowingly performs a criminal
abortion that results in the death or serious bodily injury of the pregnant woman to a prison
term of not less than five nor more than 10 years, fined not less than $10,000 nor more than
$75,000, or both. Proposed law further provides that, if the recipient of the criminal abortion
is under the age of 18, the criminal penalty increases to imprisonment at hard labor for not
less than 15 years nor more than 50 years, fined not less than $15,000 nor more than
$100,000, or both.
Present law provides that the following are not criminal abortion:
(1)Any action when a physician or other licensed medical professional is acting in the
course of administering lawful medical care and an unborn child dies.
(2)Any act taken or omission by a pregnant woman with regard to her own unborn
child.
(3)Possessing an abortion-inducing drug for her own use.
(4)Lawfully prescribing, dispensing, or distributing a drug or medicine for a bona fide
medical reason that is not intended to cause an abortion.
Proposed law provides that Item (1) does not require the death of the unborn child and Item
(2) requires that the act or omission be lawful.
Proposed law otherwise retains present law.
Proposed law prohibits the sale or distribution of any abortion-inducing drug that may be
sold, prescribed, dispensed, distributed, or delivered in Louisiana without a prescription of
a duly licensed physician who is physically present with the pregnant woman when the drug
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is administered.
Proposed law further provides that an abortion-inducing drug cannot include contraceptive
drugs or devices, Plan B or the morning-after pill, or other emergency contraception.
Proposed law prohibits the delivery of an abortion-inducing drug to a person in Louisiana
by mail-order, courier, or as a result of a sale made via the internet.
Proposed law provides that the Dept. of Health may promulgate rules to allow products that
contain an abortion-inducing drug to be distributed for uses other than causing an abortion.
Proposed law further provides that whoever sells or distributes an abortion-inducing drug
without a prescription is subject to criminal penalties of not more than $1,000 or imprisoned
for not more than six months, or both, and each instance of a sale or distribution of an
abortion-inducing drug is considered a separate offense for purposes of the criminal
penalties. Further provides that possessing for personal consumption shall not subject a
pregnant women to criminal consequences.
Present law provides that unfair methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce are unlawful.
Proposed law provides that the advertising, offering for sale, sale, or distribution of chemical
abortion drugs without a prescription is an unfair trade practice.
Effective August 1, 2022.
(Amends R.S. 14:32.9 and R.S. 51:1402(10); adds R.S. 40:962.2)
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Judiciary C to the
original bill
1. Adds provision that "induced chemical abortion" means abortion caused by
certain drugs dispensed or distributed by anyone other than a physician who
is in the physical presence of the pregnant woman when the drug is
administered.
2. Defines "induced chemical abortion" to also mean giving instructions via
certain media regarding the self-administered inducement of a chemical
abortion when a physician is not physically present.
3. Provides that certain proposed law penalties apply when the unlawful act
results in serious bodily injury of the pregnant woman.
4. Adds provision that a lawful dispensing of a chemical abortion drug requires
the physician to be in the physical presence of the pregnant woman when the
drug is administered.
Senate Floor Amendments to engrossed bill
1. Changes definition of criminal abortion.
2. Defines "abortion-inducing drug".
3. Adds additional actions to list of activities not considered criminal abortion.
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4. Prohibits delivery of abortion-inducing drug by mail-order, courier, or
internet sale.
5. Provides severability.
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