Rhode Island 2025 Regular Session

Rhode Island Senate Bill S0064 Compare Versions

Only one version of the bill is available at this time.

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5	5	2025 -- S 0064
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7	7	LC000340
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9	9	S T A T E O F R H O D E I S L A N D
10	10	IN GENERAL ASSEMBLY
11	11	JANUARY SESSION, A.D. 2025
12	12	____________
13	13
14	14	A N A C T
15	15	RELATING TO HEALTH AND SAFETY -- RHODE ISLAND PAIN-CAPABLE UNBORN
16	16	CHILD PROTECTION ACT
17	17	Introduced By: Senators de la Cruz, Ciccone, Rogers, and E Morgan
18	18	Date Introduced: January 23, 2025
19	19	Referred To: Senate Judiciary
20	20
21	21
22	22	It is enacted by the General Assembly as follows:
23	23	SECTION 1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby 1
24	24	amended by adding thereto the following chapter: 2
25	25	CHAPTER 104 3
26	26	RHODE ISLAND PAIN-CAPABLE UNBORN CHILD PROTECTION ACT 4
27	27	23-104-1. Short title. 5
28	28	This chapter shall be known and may be cited as the “Rhode Island Pain-Capable Unborn 6
29	29	Child Protection Act”. 7
30	30	23-104-2. Legislative findings. 8
31	31	The general assembly makes the following findings: 9
32	32	(1) Pain receptors (nociceptors) are present throughout the unborn child's entire body no 10
33	33	later than sixteen (16) weeks after fertilization and nerves link these receptors to the brain's 11
34	34	thalamus and subcortical plate by no later than twenty (20) weeks. 12
35	35	(2) By eight (8) weeks after fertilization, the unborn child reacts to touch. After twenty (20) 13
36	36	weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult 14
37	37	human, for example, by recoiling. 15
38	38	(3) In the unborn child, application of such painful stimuli is associated with significant 16
39	39	increases in stress hormones known as the stress response. 17
40	40	(4) Subjection to such painful stimuli is associated with long-term harmful 18
41	41
42	42
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44	44	neurodevelopmental effects, such as altered pain sensitivity and, possibly, emotional, behavioral 1
45	45	and learning disabilities later in life. 2
46	46	(5) For the purposes of surgery on unborn children, fetal anesthesia is routinely 3
47	47	administered and is associated with a decrease in stress hormones compared to their level when 4
48	48	painful stimuli are applied without the anesthesia. 5
49	49	(6) The position, asserted by some medical experts, that the unborn child is incapable of 6
50	50	experiencing pain until a point later in pregnancy than twenty (20) weeks after fertilization 7
51	51	predominately rests on the assumption that the ability to experience pain depends on the cerebral 8
52	52	cortex and requires nerve collections between the thalamus and the cortex. However, recent medical 9
53	53	research and analysis, especially since 2007, provides strong evidence for the conclusion that a 10
54	54	functioning cortex is not necessary to experience pain. 11
55	55	(7) Substantial evidence indicates that children born missing the bulk of the cerebral cortex, 12
56	56	those with hydranencephaly, nevertheless experience pain. 13
57	57	(8) In adults, stimulation or ablation of the cerebral cortex does not alter pain perception, 14
58	58	while stimulation or ablation of the thalamus does. 15
59	59	(9) Substantial evidence indicates that structures used for pain processing in early 16
60	60	development differ from those of adults, using different neural elements available at specific times 17
61	61	during development, such as the subcortical plate, to fulfill the role of pain processing. 18
62	62	(10) The position, asserted by some medical experts, that the unborn child remains in a 19
63	63	coma-like sleep state that precludes the unborn child experiencing pain is inconsistent with the 20
64	64	documented reaction of unborn children to painful stimuli and with the experience of fetal surgeons 21
65	65	who have found it necessary to sedate the unborn child with anesthesia to prevent the unborn child 22
66	66	from thrashing about in reaction to invasive surgery. 23
67	67	(11) Consequently, there is substantial medical evidence that an unborn child is capable of 24
68	68	experiencing pain by twenty (20) weeks after fertilization. The general asssembly has the 25
69	69	constitutional authority to make this judgment. As the United States Supreme Court has noted in 26
70	70	Gonzales v. Carhart, 550 U.S. 124, 162-64 (2007), "[t]he Court has given state and federal 27
71	71	legislatures wide discretion to pass legislation in areas where there is medical and scientific 28
72	72	uncertainty.”; see Marshall v. United States, 414 U.S. 417, 427 (1974) (When Congress undertakes 29
73	73	to act in areas fraught with medical and scientific uncertainties, legislative options must be 30
74	74	especially broad.). The law need not give abortion doctors unfettered choice in the course of their 31
75	75	medical practice, nor should it elevate their status above other physicians in the medical 32
76	76	community. Medical uncertainly does not foreclose the exercise of legislative power in the abortion 33
77	77	context any more than it does in other contexts. 34
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81	81	(12) It is the purpose of the state to assert a compelling state interest in protecting the lives 1
82	82	of unborn children from the stage at which substantial medical evidence indicates that they are 2
83	83	capable of feeling pain. 3
84	84	(13) In enacting this legislation the state of Rhode Island is not asking the Supreme Court 4
85	85	to overturn or replace its holding, first articulated in Roe v. Wade, and reaffirmed in Planned 5
86	86	Parenthood of Southeastern Pennsylvania v. Casey, that the state interest in unborn human life, 6
87	87	which is "legitimate" throughout pregnancy, becomes "compelling" at viability. Rather, it asserts a 7
88	88	separate and independent compelling state interest in unborn human life that exists once the unborn 8
89	89	child is capable of feeling pain, which is asserted not in replacement of, but in addition to the state's 9
90	90	compelling state interest in protecting the lives of unborn children from the stage of viability. 10
91	91	(14) The United States Supreme Court has established that the "constitutional liberty of the 11
92	92	woman to have some freedom to terminate her pregnancy ... is not so unlimited . . . that from the 12
93	93	outset the State cannot show its concern for the life of the unborn, and at a later point in fetal 13
94	94	development the state's interest in life has sufficient force so that the right of the woman to terminate 14
95	95	the pregnancy can be restricted." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 15
96	96	U.S. 833, 869 (1992). 16
97	97	(15) The Supreme Court decision upholding the Partial-Birth Abortion Ban Act, Gonzales 17
98	98	v. Carhart, 550 U.S. 124 (2007) vindicated the dissenting opinion in the earlier decision that had 18
99	99	struck down Nebraska's Partial-Birth Abortion Ban Act. That opinion stated, "[In Casey] We held 19
100	100	it was inappropriate for the Judicial Branch to provide an exhaustive list of state interests implicated 20
101	101	by abortion.” Casey is premised on the states having an important constitutional role in defining 21
102	102	their interests in the abortion debate. It is only with this principle in mind that [a state's] interests 22
103	103	can be given proper weight. States also have an interest in forbidding medical procedures which, 23
104	104	in the state's reasonable determination, might cause the medical profession or society as a whole to 24
105	105	become insensitive, even disdainful, to life, including life in the human fetus. A state may take 25
106	106	measures to ensure the medical profession and its members are viewed as healers, sustained by a 26
107	107	compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life 27
108	108	which cannot survive without the assistance of others." Stenberg v. Carhart, 350 U.S. 914, 958-59 28
109	109	(2000)(Kennedy, J., dissenting). 29
110	110	(16) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in the context of 30
111	111	determining the severability of a state statute regulating abortion, the United States Supreme Court 31
112	112	noted that an explicit statement of legislative intent specifically made applicable to a particular 32
113	113	statute is of greater weight than a general savings or severability clause, it is the intent of the state 33
114	114	that if any one or more provisions, sections, subsections, sentences, clauses, phrases or words of 34
115	115
116	116
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118	118	this chapter or the application thereof to any person or circumstance is found to be unconstitutional, 1
119	119	the same is hereby declared to be severable and the balance of this act shall remain effective 2
120	120	notwithstanding such unconstitutionality. Moreover, the state declares that it would have passed 3
121	121	this chapter, and each provision, section, subsection, sentence, clause, phrase or word thereof, 4
122	122	irrespective of the fact that any one or more provisions, sections, subsections, sentences, clauses, 5
123	123	phrases or words, or any of their applications, were to be declared unconstitutional. 6
124	124	23-104-3. Definitions. 7
125	125	For purposes of this chapter: 8
126	126	(1) "Abortion" means the use or prescription of any instrument, medicine, drug, or any 9
127	127	other substance or device to: 10
128	128	(i) Intentionally kill the unborn child of a woman known to be pregnant; or 11
129	129	(ii) Intentionally terminate the pregnancy of a woman known to be pregnant, with an 12
130	130	intention other than: 13
131	131	(A) After viability to produce a live birth and preserve the life and health of the child born 14
132	132	alive; or 15
133	133	(B) To remove a dead unborn child. 16
134	134	(2) "Attempt to perform or induce an abortion" means an act, or an omission of a statutorily 17
135	135	required act, that, under the circumstances as the actor believes them to be, constitutes a substantial 18
136	136	step in a course of conduct planned to culminate in the performance or induction of an abortion in 19
137	137	this state in violation of this chapter. 20
138	138	(3) "Department" means the department of health. 21
139	139	(4) "Fertilization" means the fusion of a human spermatozoon with a human ovum. 22
140	140	(5) "Medical emergency" means a condition that, in reasonable medical judgment, so 23
141	141	complicates the medical condition of the pregnant woman that it necessitates the immediate 24
142	142	abortion of her pregnancy without first determining post-fertilization age to avert her death, or for 25
143	143	which the delay necessary to determine post-fertilization age will create serious risk of substantial 26
144	144	and irreversible physical impairment of a major bodily function, not including psychological or 27
145	145	emotional conditions. No condition may be deemed a medical emergency if based on a claim or 28
146	146	diagnosis that the woman will engage in conduct which she intends to result in her death or in 29
147	147	substantial and irreversible physical impairment of a major bodily function. 30
148	148	(6) "Physician" means any person licensed to practice medicine and surgery, or osteopathic 31
149	149	medicine and surgery in this state. 32
150	150	(7) "Post-fertilization age" means the age of the unborn child as calculated from the fusion 33
151	151	of a human spermatozoon with a human ovum. 34
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155	155	(8) "Probable post-fertilization age of the unborn child" means what, in reasonable medical 1
156	156	judgment, will with reasonable probability be the post-fertilization age of the unborn child at the 2
157	157	time the abortion is planned to be performed or induced. 3
158	158	(9) "Reasonable medical judgment" means a medical judgment that would be made by a 4
159	159	reasonably prudent physician, knowledgeable about the case and the treatment possibilities with 5
160	160	respect to the medical conditions involved. 6
161	161	(10) "Serious health risk to the unborn child's mother" means that in reasonable medical 7
162	162	judgment she has a condition that so complicates her medical condition that it necessitates the 8
163	163	abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible 9
164	164	physical impairment of a major bodily function, not including psychological or emotional 10
165	165	conditions. No greater risk may be determined to exist if it is based on a claim or diagnosis that the 11
166	166	woman will engage in conduct which she intends to result in her death or in substantial and 12
167	167	irreversible physical impairment of a major bodily function. 13
168	168	(11) "Unborn child" or "fetus" each mean an individual organism of the species homo 14
169	169	sapiens from fertilization until live birth. 15
170	170	(12) "Woman" means a female human being, whether or not she has reached the age of 16
171	171	majority. 17
172	172	23-104-4. Protection of unborn child capable of feeling pain from abortion. 18
173	173	(a) No person may perform or induce, or attempt to perform or induce, an abortion of an 19
174	174	unborn child capable of feeling pain, unless necessary to prevent serious health risk to the unborn 20
175	175	child's mother. 21
176	176	(b) An unborn child shall be deemed capable of feeling pain when it has been determined, 22
177	177	by the physician performing or inducing, or attempting to perform or induce the abortion, or by 23
178	178	another physician upon whose determination that physician relies, that the probable post 24
179	179	fertilization age of the woman's unborn child is twenty (20) or more weeks. 25
180	180	(c) Except in the case of a medical emergency, no abortion may be performed or induced, 26
181	181	or be attempted to be performed or induced, unless the physician performing or inducing it has first 27
182	182	made a determination of the probable post fertilization age of the unborn child or relied upon such 28
183	183	a determination made by another physician. In making this determination, the physician shall make 29
184	184	such inquiries of the woman and perform or cause to be performed such medical examinations and 30
185	185	tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions 31
186	186	involved, would consider necessary to perform in making an accurate diagnosis with respect to post 32
187	187	fertilization age. 33
188	188	(d) When an abortion of an unborn child capable of feeling pain is necessary to prevent 34
189	189
190	190
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192	192	serious health risk to the unborn child's mother, the physician shall terminate the pregnancy in the 1
193	193	manner which, in reasonable medical judgment, provides the best opportunity for the unborn child 2
194	194	to survive, unless, in reasonable medical judgment, termination of the pregnancy in that manner 3
195	195	would pose a greater risk either of the death of the pregnant woman or of the substantial and 4
196	196	irreversible physical impairment of a major bodily function, not including psychological or 5
197	197	emotional conditions, of the woman than would other available methods. No greater risk may be 6
198	198	determined to exist if it is based on a claim or diagnosis that the woman will engage in conduct 7
199	199	which she intends to result in her death or in substantial and irreversible physical impairment of a 8
200	200	major bodily function. 9
201	201	23-104-5. Reporting. 10
202	202	(a) Any physician who performs or induces, or attempts to perform or induce, an abortion 11
203	203	shall report to the department, on a schedule and in accordance with forms and regulations adopted 12
204	204	and promulgated by the department, that include: 13
205	205	(1) Post-fertilization age: 14
206	206	(i) If a determination of probable post-fertilization age was made, whether ultrasound was 15
207	207	employed in making the determination, and the week of probable post-fertilization age determined; 16
208	208	(ii) If a determination of probable post-fertilization age was not made, the basis of the 17
209	209	determination that a medical emergency existed. 18
210	210	(2) Method of abortion, which of the following was employed: 19
211	211	(i) Medication abortion (such as, but not limited to, mifepristone/misoprostol or 20
212	212	methotrexate/misoprostol); 21
213	213	(ii) Manual vacuum aspiration; 22
214	214	(iii) Electrical vacuum aspiration; 23
215	215	(iv) Dilation and evacuation; 24
216	216	(v) Combined induction abortion and dilation and evacuation; 25
217	217	(vi) Induction abortion with prostaglandins; 26
218	218	(vii) Induction abortion with intra-amniotic instillation (such as, but not limited to, saline 27
219	219	or urea); 28
220	220	(viii) Induction abortion, other means; 29
221	221	(ix) Intact dilation and extraction (partial-birth); or 30
222	222	(x) Method not listed (specify). 31
223	223	(3) Whether an intra-fetal injection was used in an attempt to induce fetal demise (such as, 32
224	224	but not limited to, intra-fetal potassium chloride or digoxin). 33
225	225	(4) Age and race of the patient. 34
226	226
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229	229	(5) If the unborn child was deemed capable of experiencing pain under § 23-104-4(b), the 1
230	230	basis of the determination that the pregnant woman had a condition which so complicated her 2
231	231	medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert 3
232	232	serious risk of substantial and irreversible physical impairment of a major bodily function, not 4
233	233	including psychological or emotional conditions. 5
234	234	(6) If the unborn child was deemed capable of experiencing pain under § 23-104-4(b), 6
235	235	whether or not the method of abortion used was one that, in reasonable medical judgment, provided 7
236	236	the best opportunity for the unborn child to survive and, if such a method was not used, the basis 8
237	237	of the determination that termination of the pregnancy in that manner would pose a greater risk 9
238	238	either of the death of the pregnant woman or of the substantial and irreversible physical impairment 10
239	239	of a major bodily function, not including psychological or emotional conditions, of the woman than 11
240	240	would other available methods. 12
241	241	(b) Reports required by subsection (a) of this section shall not contain the name or the 13
242	242	address of the patient whose pregnancy was terminated, nor shall the report contain any other 14
243	243	information identifying the patient, except that each report shall contain a unique medical record 15
244	244	identifying number, to enable matching the report to the patient's medical records. These reports 16
245	245	shall be maintained in strict confidence by the department, shall not be available for public 17
246	246	inspection, and shall not be made available except: 18
247	247	(1) To the office of attorney general pursuant to a criminal investigation; 19
248	248	(2) To the office of attorney general pursuant to a civil investigation of the grounds for an 20
249	249	action under § 23-104-7; or 21
250	250	(3) Pursuant to court order in an action under § 23-104-7. 22
251	251	(c) By June 30 of each year the department shall issue a public report providing statistics 23
252	252	for the previous calendar year compiled from all of the reports covering that year submitted in 24
253	253	accordance with this section for each of the items listed in subsection (a) of this section. Each report 25
254	254	shall also provide the statistics for all previous calendar years during which this section was in 26
255	255	effect, adjusted to reflect any additional information from late or corrected reports. The department 27
256	256	shall take care to ensure that none of the information included in the public reports could reasonably 28
257	257	lead to the identification of any pregnant woman upon whom an abortion was performed, induced, 29
258	258	or attempted. 30
259	259	(d) Any physician who fails to submit a report by the end of thirty (30) days following the 31
260	260	due date established by regulation shall be subject to a late fee of one thousand dollars ($1,000) for 32
261	261	each additional thirty (30) day period or portion of a thirty (30) day period the report is overdue. 33
262	262	Any physician required to report in accordance with this act who has not submitted a report, or has 34
263	263
264	264
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266	266	submitted only an incomplete report, more than six (6) months following the due date, may, in an 1
267	267	action brought by the department, be directed by a court of competent jurisdiction to submit a 2
268	268	complete report within a period stated by court order or be subject to civil contempt. Intentional or 3
269	269	reckless failure by any physician to conform to any requirement of this section, other than late filing 4
270	270	of a report, constitutes "unprofessional conduct". Intentional or reckless failure by any physician to 5
271	271	submit a complete report in accordance with a court order constitutes "unprofessional conduct”. 6
272	272	Intentional or reckless falsification of any report required under this section shall be punishable as 7
273	273	a misdemeanor. 8
274	274	(e) Within ninety (90) days of the effective date of this chapter, the department shall adopt 9
275	275	and promulgate forms and regulations to assist in compliance with this section. Subsection (a) of 10
276	276	this section shall take effect so as to require reports regarding all abortions performed or induced 11
277	277	on and after the first day of the first calendar month following the effective date of the rules. 12
278	278	23-104-6. Penalties. 13
279	279	Any person who intentionally or recklessly performs or induces, or attempts to perform or 14
280	280	induce an abortion in violation of this chapter shall be guilty of a felony. No penalty may be 15
281	281	assessed against the woman upon whom the abortion is performed or induced, or attempted to be 16
282	282	performed or induced. 17
283	283	23-104-7. Civil remedies. 18
284	284	(a) Any woman upon whom an abortion has been performed or induced in violation of this 19
285	285	chapter, or the father of the unborn child who was the subject of such an abortion, may maintain an 20
286	286	action against the person who performed or induced the abortion in intentional or reckless violation 21
287	287	of this chapter for actual and punitive damages. Any woman upon whom an abortion has been 22
288	288	attempted in violation of this chapter may maintain an action against the person who attempted to 23
289	289	perform or induce the abortion in an intentional or reckless violation of this chapter for actual and 24
290	290	punitive damages. No damages may be awarded a plaintiff if the pregnancy resulted from the 25
291	291	plaintiff's criminal conduct. 26
292	292	(b) A cause of action for injunctive relief against any person who has intentionally or 27
293	293	recklessly violated this chapter may be maintained: 28
294	294	(1) By the woman upon whom an abortion was performed or induced, or attempted to be 29
295	295	performed or induced in violation of this chapter; 30
296	296	(2) If the woman had not attained the age of eighteen (18) years at the time of the abortion, 31
297	297	or has died as a result of the abortion, the parent or guardian of the pregnant woman; 32
298	298	(3) By a prosecuting attorney with appropriate jurisdiction; or 33
299	299	(4) By the office of attorney general. 34
300	300
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303	303	The injunction shall prevent the abortion provider from performing or inducing, or 1
304	304	attempting to perform or induce further abortions in violation of this chapter. A cause of action 2
305	305	may not be maintained by a plaintiff if the pregnancy resulted from the plaintiff's criminal conduct. 3
306	306	(c) If judgment is rendered in favor of the plaintiff in an action described in this section, 4
307	307	the court shall render judgment for a reasonable attorneys' fee in favor of the plaintiff against the 5
308	308	defendant. 6
309	309	(d) If judgment is rendered in favor of the defendant and the court finds that the plaintiff's 7
310	310	suit was frivolous and brought in bad faith, the court shall render judgment for a reasonable 8
311	311	attorneys' fee in favor of the defendant against the plaintiff. 9
312	312	(e) No damages or attorneys' fee may be assessed against the woman upon whom an 10
313	313	abortion was performed or induced, or attempted to be performed or induced, except in accordance 11
314	314	with subsection (d) of this section. 12
315	315	23-104-8. Protection of privacy in court proceedings. 13
316	316	In every civil or criminal proceeding, or any action brought under this chapter, the court 14
317	317	shall rule whether the anonymity of any woman upon whom an abortion has been performed or 15
318	318	induced, or attempted to be performed or induced shall be preserved from public disclosure if she 16
319	319	does not give her consent to the disclosure. The court, upon motion, or sua sponte, shall make a 17
320	320	ruling and, upon determining that her anonymity should be preserved, shall issue orders to the 18
321	321	parties, witnesses, and counsel, and shall direct the sealing of the record and exclusion of 19
322	322	individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity 20
323	323	from public disclosure. Each order shall be accompanied by specific written findings explaining 21
324	324	why the anonymity of the woman should be preserved from public disclosure, why the order is 22
325	325	essential to that end, how the order is narrowly tailored to serve that interest, and why no reasonable 23
326	326	less restrictive alternative exists. In the absence of written consent of the woman upon whom an 24
327	327	abortion has been performed or induced, or attempted to be performed or induced, anyone, other 25
328	328	than a public official, who brings an action under §§ 23-104-7(a) or 23-104-7(b), shall do so under 26
329	329	a pseudonym. This section shall not be construed to conceal the identity of the plaintiff or of 27
330	330	witnesses from the defendant or from attorneys for the defendant. 28
331	331	23-104-9. Litigation defense fund. 29
332	332	(a) There is created a restricted revenue account to be known as the “Rhode Island Pain-30
333	333	Capable Unborn Child Protection Litigation Fund”. The fund shall be maintained by the general 31
334	334	treasurer for the purpose of providing funds to pay for any costs and expenses incurred by 32
335	335	individuals relating to actions surrounding the defense of this law. 33
336	336	(b) The fund shall consist of: 34
337	337
338	338
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340	340	(1) Appropriations made to the account by the general assembly; and 1
341	341	(2) Any donations, gifts, or grants received by the account. 2
342	342	(c) The fund shall retain the interest income derived from the monies credited to the fund. 3
343	343	23-104-10. Construction. 4
344	344	(a) This chapter shall not be construed to repeal, by implication or otherwise, any 5
345	345	applicable law, rule or regulation, regulating or restricting abortion. 6
346	346	(b) If any provisions or provisions of this chapter, or the application of this chapter to any 7
347	347	person or circumstance is held invalid by a court of competent authority, that invalidity does not 8
348	348	affect other provisions or applications of this chapter which can be given effect without that invalid 9
349	349	provision or provisions or application of the provision or provisions, and to this end the provisions 10
350	350	of this chapter are declared to be separable and severable. 11
351	351	SECTION 2. This act shall take effect on January 1, 2026. 12
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358	358	EXPLANATION
359	359	BY THE LEGISLATIVE COUNCIL
360	360	OF
361	361	A N A C T
362	362	RELATING TO HEALTH AND SAFETY -- RHODE ISLAND PAIN-CAPABLE UNBORN
363	363	CHILD PROTECTION ACT
364	364	***
365	365	This act would create the Rhode Island Pain-Capable Unborn Child Protection Act, 1
366	366	prohibiting the performance or induction of an abortion of an unborn child capable of feeling pain, 2
367	367	unless necessary to prevent serious health risk to the unborn child’s mother. 3
368	368	This act would take effect on January 1, 2026. 4
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