MISSISSIPPI LEGISLATURE
2014 Regular Session
To: Judiciary B
By: Representatives Gipson, Alday, Arnold, Bain, Bell, Boyd, Brown (20th), Byrd, Carpenter, Chism, Hamilton, Jennings, Martinson, Nelson, Pigott, Rogers (14th), Rogers (61st), Rushing, Taylor, Turner, Weathersby, Moore, Monsour, Baker, Aldridge, Beckett, Formby, Mettetal, Eure, Bennett, Denny, Kinkade, Shirley, Willis, Crawford, Gunn
AN ACT TO CREATE NEW SECTIONS 41-41-131 THROUGH 41-41-145, MISSISSIPPI CODE OF 1972, TO PROHIBIT THE PERFORMING OR INDUCING OF AN ABORTION AT OR AFTER TWENTY WEEKS AFTER CONCEPTION; TO PROHIBIT THE PERFORMING OR INDUCING OF AN ABORTION UNTIL A PHYSICIAN MAKES A DETERMINATION OF THE PROBABLE POST-CONCEPTION AGE OF THE UNBORN CHILD; TO PROVIDE FOR CERTAIN EXCEPTIONS; TO PROVIDE FOR THE PROTECTION OF PRIVACY IN COURT PROCEEDINGS OF THE IDENTITY OF THE WOMAN ON WHOM AN ABORTION HAS BEEN PERFORMED OR INDUCED; TO AMEND SECTION 73-25-29, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A PHYSICIAN WHO PERFORMS OR INDUCES AN ABORTION IN VIOLATION OF THIS ACT IS SUBJECT TO DISCIPLINARY ACTION; TO BRING FORWARD SECTION 41-75-1, MISSISSIPPI CODE OF 1972, FOR THE PURPOSES OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) The findings indicate that:
(a) Substantial medical evidence recognizes that an unborn child is capable of experiencing pain by not later than twenty (20) weeks after conception;
(b) The state has a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that these children are capable of feeling pain;
(c) The compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that an unborn child is capable of feeling pain is intended to be separate from and independent of the compelling state interest in protecting the lives of unborn children from the stage of viability, and neither state interest is intended to replace the other; and
(d) Restricting elective abortions at or later than twenty (20) weeks post-conception, as provided by Sections 41-41-131 through 41-41-145, does not impose an undue burden or a substantial obstacle on a woman's ability to have an abortion because:
(i) The woman has adequate time to decide whether to have an abortion in the first twenty (20) weeks after conception; and
(ii) Sections 41-41-131 through 41-41-145 do not apply to abortions that are necessary to avert the death or substantial and irreversible physical impairment of a major bodily function of the pregnant woman or abortions that are performed on unborn children with severe fetal abnormalities.
(2) The Legislature intends that every application of Sections 41-41-131 through 41-41-145 to every individual woman shall be severable from each other. In the unexpected event that the application of Sections 41-41-131 through 41-41-145 is found to impose an impermissible undue burden on any pregnant woman or group of pregnant women, the application of Sections 41-41-131 through 41-41-145 to those women shall be severed from the remaining applications of Sections 41-41-131 through 41-41-145 that do not impose an undue burden, and those remaining applications shall remain in force and unaffected, consistent with Section 13 of this act.
SECTION 2. The following shall be codified as Section 41-41-131, Mississippi Code of 1972:
41-41-131. Sections 41-41-131 through 41-41-145 may be cited as the Preborn Pain Act.
SECTION 3. The following shall be codified as Section 41-41-133, Mississippi Code of 1972:
41-41-133. As used in Sections 41-41-131 through 41-41-145:
(a) "Abortion" means the use or prescription of any instrument, medicine, drug or any other substance or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth or to remove a dead fetus.
(b) "Post-conception age" means the age of the unborn child as calculated from the time the fused human spermatozoon and human ovum implant in the human female uterus.
(c) "Severe fetal abnormality" means a life threatening physical condition that, in reasonable medical judgment, regardless of the provision of life saving medical treatment, is incompatible with life outside the womb.
SECTION 4. The following shall be codified as Section 41-41-135, Mississippi Code of 1972:
41-41-135. Except as otherwise provided by Section 41-41-141, a physician may not perform or induce or attempt to perform or induce an abortion without, before the procedure:
(a) Making a determination of the probable post-conception age of the unborn child; or
(b) Possessing and relying on a determination of the probable post-conception age of the unborn child made by another physician.
SECTION 5. The following shall be codified as Section 41-41-137, Mississippi Code of 1972:
41-41-137. Except as otherwise provided by Section 41-41-141, a person may not perform or induce or attempt to perform or induce an abortion on a woman if it has been determined, by the physician performing, inducing, or attempting to perform or induce the abortion or by another physician on whose determination that physician relies, that the probable post-conception age of the unborn child is twenty (20) or more weeks.
SECTION 6. The following shall be codified as Section 41-41-139, Mississippi Code of 1972:
41-41-139. (1) This section applies only to an abortion authorized under Section 41-41-141(1)(a) or (b) in which:
(a) The probable post-conception age of the unborn child is twenty (20) or more weeks; or
(b) The probable post-conception age of the unborn child has not been determined but could reasonably be twenty (20) or more weeks.
(2) Except as otherwise provided by Section 41-41-141(1)(c), a physician performing or inducing an abortion under subsection (1) of this section shall terminate the pregnancy in the manner that, in the physician's reasonable medical judgment, provides the best opportunity for the unborn child to survive.
SECTION 7. The following shall be codified as Section 41-41-141, Mississippi Code of 1972:
41-41-141. (1) The prohibitions and requirements under Sections 41-41-135, 41-41-137 and 41-41-139(2) do not apply to an abortion performed or induced if there exists a condition that, in the physician's reasonable medical judgment, so complicates the medical condition of the woman that, to avert the woman's death or a serious risk of substantial and irreversible physical impairment of a major bodily function, other than a psychological condition, it necessitates, as applicable:
(a) The immediate abortion of her pregnancy without the delay necessary to determine the probable post-conception age of the unborn child;
(b) The abortion of her pregnancy even though the post-conception age of the unborn child is twenty (20) or more weeks; or
(c) The use of a method of abortion other than a method described by Section 41-41-139(2).
(2) A physician may not take an action authorized under subsection (1) of this section if the risk of death or a substantial and irreversible physical impairment of a major bodily function arises from a claim or diagnosis that the woman will engage in conduct that may result in her death or in substantial and irreversible physical impairment of a major bodily function.
(3) The prohibitions and requirements under Sections 41-41-135, 41-41-137 and 41-41-139(2) do not apply to an abortion performed or induced on an unborn child who has a severe fetal abnormality.
SECTION 8. The following shall be codified as Section 41-41-143, Mississippi Code of 1972:
41-41-143. (1) Except as otherwise provided by this section, in a civil or criminal proceeding or action involving an act prohibited under Sections 41-41-131 through 41-41-145, the identity of the woman on whom an abortion has been performed or induced or attempted to be performed or induced is not subject to public disclosure if the woman does not give consent to disclosure.
(2) Unless the court makes a ruling under subsection (3) of this section to allow disclosure of the woman's identity, the court shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to protect the woman's identity from public disclosure.
(3) A court may order the disclosure of information that is confidential under this section if:
(a) A motion is filed with the court requesting release of the information and a hearing on that request;
(b) Notice of the hearing is served on each interested party; and
(c) The court determines after the hearing and an in camera review that disclosure is essential to the administration of justice and there is no reasonable alternative to disclosure.
SECTION 9. The following shall be codified as Section 41-41-145, Mississippi Code of 1972:
41-41-145. (1) Sections 41-41-131 through 41-41-145 shall be construed, as a matter of state law, to be enforceable up to but no further than the maximum possible extent consistent with federal constitutional requirements, even if that construction is not readily apparent, as such constructions are authorized only to the extent necessary to save Sections 41-41-131 through 41-41-145 from judicial invalidation. Judicial reformation of statutory language is explicitly authorized only to the extent necessary to save the statutory provision from invalidity.
(2) If any court determines that a provision of Sections 41-41-131 through 41-41-145 is unconstitutionally vague, the court shall interpret the provision, as a matter of state law, to avoid the vagueness problem and shall enforce the provision to the maximum possible extent. If a federal court finds any provision of Sections 41-41-131 through 41-41-145 or its application to any person, group of persons, or circumstances to be unconstitutionally vague and declines to impose the saving construction described by this subsection, the Mississippi Supreme Court shall provide an authoritative construction of the objectionable statutory provisions that avoids the constitutional problems while enforcing the statute's restrictions to the maximum possible extent, and shall agree to answer any question certified from a federal appellate court regarding the statute.
(3) State executive or administrative official may not decline to enforce Sections 41-41-131 through 41-41-145, or adopt a construction of Sections 41-41-131 through 41-41-145 in a way that narrows their applicability, based on the official's own beliefs about what the state or federal constitution requires, unless the official is enjoined by a state or federal court from enforcing Sections 41-41-131 through 41-41-145.
(4) Sections 41-41-131 through 41-41-145 may not be construed to authorize the prosecution of or a cause of action to be brought against a woman on whom an abortion is performed or induced or attempted to be performed or induced in violation of Sections 41-41-131 through 41-41-145.
SECTION 10. Section 73-25-29, Mississippi Code of 1972, is amended as follows:
73-25-29. The grounds for the nonissuance, suspension, revocation or restriction of a license or the denial of reinstatement or renewal of a license are:
(1) Habitual personal use of narcotic drugs, or any other drug having addiction-forming or addiction-sustaining liability.
(2) Habitual use of intoxicating liquors, or any beverage, to an extent which affects professional competency.
(3) Administering, dispensing or prescribing any narcotic drug, or any other drug having addiction-forming or addiction-sustaining liability otherwise than in the course of legitimate professional practice.
(4) Conviction of violation of any federal or state law regulating the possession, distribution or use of any narcotic drug or any drug considered a controlled substance under state or federal law, a certified copy of the conviction order or judgment rendered by the trial court being prima facie evidence thereof, notwithstanding the pendency of any appeal.
(5) Procuring, or attempting to procure, or aiding in, an abortion that is not medically indicated.
(6) Conviction of a felony or misdemeanor involving moral turpitude, a certified copy of the conviction order or judgment rendered by the trial court being prima facie evidence thereof, notwithstanding the pendency of any appeal.
(7) Obtaining or attempting to obtain a license by fraud or deception.
(8) Unprofessional conduct, which includes, but is not limited to:
(a) Practicing medicine under a false or assumed name or impersonating another practitioner, living or dead.
(b) Knowingly performing any act which in any way assists an unlicensed person to practice medicine.
(c) Making or willfully causing to be made any flamboyant claims concerning the licensee's professional excellence.
(d) Being guilty of any dishonorable or unethical conduct likely to deceive, defraud or harm the public.
(e) Obtaining a fee as personal compensation or gain from a person on fraudulent representation of a disease or injury condition generally considered incurable by competent medical authority in the light of current scientific knowledge and practice can be cured or offering, undertaking, attempting or agreeing to cure or treat the same by a secret method, which he refuses to divulge to the board upon request.
(f) Use of any false, fraudulent or forged statement or document, or the use of any fraudulent, deceitful, dishonest or immoral practice in connection with any of the licensing requirements, including the signing in his professional capacity any certificate that is known to be false at the time he makes or signs such certificate.
(g) Failing to identify a physician's school of practice in all professional uses of his name by use of his earned degree or a description of his school of practice.
(9) The refusal of a licensing authority of another state or jurisdiction to issue or renew a license, permit or certificate to practice medicine in that jurisdiction or the revocation, suspension or other restriction imposed on a license, permit or certificate issued by such licensing authority which prevents or restricts practice in that jurisdiction, a certified copy of the disciplinary order or action taken by the other state or jurisdiction being prima facie evidence thereof, notwithstanding the pendency of any appeal.
(10) Surrender of a license or authorization to practice medicine in another state or jurisdiction or surrender of membership on any medical staff or in any medical or professional association or society while under disciplinary investigation by any of those authorities or bodies for acts or conduct similar to acts or conduct which would constitute grounds for action as defined in this section.
(11) Final sanctions imposed by the United States Department of Health and Human Services, Office of Inspector General or any successor federal agency or office, based upon a finding of incompetency, gross misconduct or failure to meet professionally recognized standards of health care; a certified copy of the notice of final sanction being prima facie evidence thereof. As used in this paragraph, the term "final sanction" means the written notice to a physician from the United States Department of Health and Human Services, Officer of Inspector General or any successor federal agency or office, which implements the exclusion.
(12) Failure to furnish the board, its investigators or representatives information legally requested by the board.
(13) Violation of any provision(s) of the Medical Practice Act or the rules and regulations of the board or of any order, stipulation or agreement with the board.
(14) Violation(s) of the provisions of Sections 41-121-1 through 41-121-9 relating to deceptive advertisement by health care practitioners. This paragraph shall stand repealed on July 1, 2016.
(15) Performing or inducing an abortion on a woman in violation of any provision of Sections 41-41-131 through 41-41-145.
In addition to the grounds specified above, the board shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.
SECTION 11. Section 41-75-1, Mississippi Code of 1972, is brought forward as follows:
41-75-1. For the purpose of this chapter:
(a) "Ambulatory surgical facility" means a publicly or privately owned institution that is primarily organized, constructed, renovated or otherwise established for the purpose of providing elective surgical treatment of "outpatients" whose recovery, under normal and routine circumstances, will not require "inpatient" care. The facility defined in this paragraph does not include the offices of private physicians or dentists, whether practicing individually or in groups, but does include organizations or facilities primarily engaged in that outpatient surgery, whether using the name "ambulatory surgical facility" or a similar or different name. That organization or facility, if in any manner considered to be operated or owned by a hospital or a hospital holding, leasing or management company, either for profit or not for profit, is required to comply with all licensing agency ambulatory surgical licensure standards governing a "hospital affiliated" facility as adopted under Section 41-9-1 et seq., provided that the organization or facility does not intend to seek federal certification as an ambulatory surgical facility as provided for at 42 CFR, Parts 405 and 416. If the organization or facility is to be operated or owned by a hospital or a hospital holding, leasing or management company and intends to seek federal certification as an ambulatory facility, then the facility is considered to be "freestanding" and must comply with all licensing agency ambulatory surgical licensure standards governing a "freestanding" facility.
If the organization or facility is to be owned or operated by an entity or person other than a hospital or hospital holding, leasing or management company, then the organization or facility must comply with all licensing agency ambulatory surgical facility standards governing a "freestanding" facility.
(b) "Hospital affiliated" ambulatory surgical facility means a separate and distinct organized unit of a hospital or a building owned, leased, rented or utilized by a hospital and located in the same county in which the hospital is located, for the primary purpose of performing ambulatory surgery procedures. The facility is not required to be separately licensed under this chapter and may operate under the hospital's license in compliance with all applicable requirements of Section 41-9-1 et seq.
(c) "Freestanding" ambulatory surgical facility means a separate and distinct facility or a separate and distinct organized unit of a hospital owned, leased, rented or utilized by a hospital or other persons for the primary purpose of performing ambulatory surgery procedures. The facility must be separately licensed as defined in this section and must comply with all licensing standards promulgated by the licensing agency under this chapter regarding a "freestanding" ambulatory surgical facility. Further, the facility must be a separate, identifiable entity and must be physically, administratively and financially independent and distinct from other operations of any other health facility, and shall maintain a separate organized medical and administrative staff. Furthermore, once licensed as a "freestanding" ambulatory surgical facility, the facility shall not become a component of any other health facility without securing a certificate of need to do that.
(d) "Ambulatory surgery" means surgical procedures that are more complex than office procedures performed under local anesthesia, but less complex than major procedures requiring prolonged postoperative monitoring and hospital care to ensure safe recovery and desirable results. General anesthesia is used in most cases. The patient must arrive at the facility and expect to be discharged on the same day. Ambulatory surgery shall only be performed by physicians or dentists licensed to practice in the State of Mississippi.
(e) "Abortion" means the use or prescription of any instrument, medicine, drug or any other substances or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth or to remove a dead fetus. Abortion procedures after the first trimester shall only be performed at a Level I abortion facility or an ambulatory surgical facility or hospital licensed to perform that service.
(f) "Abortion facility" means a facility operating substantially for the purpose of performing abortions and is a separate identifiable legal entity from any other health care facility. Abortions shall only be performed by physicians licensed to practice in the State of Mississippi. All physicians associated with the abortion facility must have admitting privileges at a local hospital and staff privileges to replace local hospital on-staff physicians. All physicians associated with an abortion facility must be board certified or eligible in obstetrics and gynecology, and a staff member trained in CPR shall always be present at the abortion facility when it is open. The term "abortion facility" includes physicians' offices that are used substantially for the purpose of performing abortions. An abortion facility operates substantially for the purpose of performing abortions if any of the following conditions are met:
(i) The abortion facility is a provider for performing ten (10) or more abortion procedures per calendar month during any month of a calendar year, or one hundred (100) or more in a calendar year.
(ii) The abortion facility, if operating less than twenty (20) days per calendar month, is a provider for performing ten (10) or more abortion procedures, or performing a number of abortion procedures that would be equivalent to ten (10) procedures per month, if the facility were operating twenty (20) or more days per calendar month, in any month of a calendar year.
(iii) The abortion facility holds itself out to the public as an abortion provider by advertising by any public means, such as newspaper, telephone directory, magazine or electronic media, that it performs abortions.
(iv) The facility applies to the licensing agency for licensure as an abortion facility.
(g) "Licensing agency" means the State Department of Health.
(h) "Operating" an abortion facility means that the facility is open for any period of time during a day and has on site at the facility or on call a physician licensed to practice in the State of Mississippi available to provide abortions.
An abortion facility may apply to be licensed as a Level I facility or a Level II facility by the licensing agency. Level II abortion facilities shall be required to meet minimum standards for abortion facilities as established by the licensing agency. Level I abortion facilities shall be required to meet minimum standards for abortion facilities and minimum standards for ambulatory surgical facilities as established by the licensing agency.
Any abortion facility that
begins operation after June 30, 1996, shall not be located within fifteen
hundred (1500) feet from the property on which any church, school or
kindergarten is located. An abortion facility shall not be in violation of
this paragraph if it is in compliance with this paragraph on the date it begins
operation and the property on which a church, school or kindergarten is
located is later within fifteen
hundred (1500) feet from the facility.
SECTION 12. Sections 41-41-131 through 41-41-145 may not be construed to repeal, by implication or otherwise, any other
provision of Mississippi law regulating or restricting abortion not specifically addressed by Sections 41-41-131 through 41-41-145. An abortion that complies with Sections 41-41-131 through 41-41-145 but violates any other law is unlawful. An abortion that complies with another state law but violates Sections 41-41-131 through 41-41-145 is unlawful as provided in Sections 41-41-131 through 41-41-145.
SECTION 13. (1) If some or all of the provisions of Sections 41-41-131 through 41-41-145 are ever temporarily or permanently restrained or enjoined by judicial order, all other provisions of Mississippi law regulating or restricting abortion shall be enforced as though the restrained or enjoined provisions had not been adopted; however, whenever the temporary or permanent restraining order or injunction is stayed or dissolved, or otherwise ceases to have effect, the provisions shall have full force and effect.
(2) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in the context of determining the severability of a state statute regulating abortion the United States Supreme Court held that an explicit statement of legislative intent is controlling, it is the intent of the Legislature that every provision, section, subsection, paragraph, sentence, clause, phrase, or word in Sections 41-41-131 through 41-41-145, and every application of the provisions in Sections 41-41-131 through 41-41-145, are severable from each other. If any application of any provision in Sections 41-41-131 through 41-41-145 to any person, group of persons, or circumstances is found by a court to be invalid, the remaining applications of that provision to all other persons and circumstances shall be severed and may not be affected.
All constitutionally valid applications of Sections 41-41-131 through 41-41-145 shall be severed from any applications that a court finds to be invalid, leaving the valid applications in force, because it is the Legislature's intent and priority that the valid applications be allowed to stand alone. Even if a reviewing court finds a provision of Sections 41-41-131 through 41-41-145 to impose an undue burden in a large or substantial fraction of relevant cases, the applications that do not present an undue burden shall be severed from the remaining provisions and shall remain in force, and shall be treated as if the Legislature had enacted a statute limited to the persons, group of persons, or circumstances for which the statute's application does not present an undue burden. The Legislature further declares that it would have passed Sections 41-41-131 through 41-41-145, and each provision, section, subsection, sentence, clause, phrase, or word, and all constitutional applications of Sections 41-41-131 through 41-41-145, irrespective of the fact that any provision, section, subsection, paragraph, sentence, clause, phrase, or word, or applications of Sections 41-41-131 through 41-41-145, were to be declared unconstitutional or to represent an undue burden.
(3) If Sections 41-41-131 through 41-41-145 are found by any court to be invalid or to impose an undue burden as applied to any person, group of persons, or circumstances, the prohibition shall apply to that person or group of persons or circumstances on the earliest date on which Sections 41-41-131 through 41-41-145 can be constitutionally applied.
(4) If any provision of Sections 41-41-131 through 41-41-145 is found by any court to be unconstitutionally vague, then the applications of that provision that do not present constitutional vagueness problems shall be severed and remain in force.
SECTION 14. This act shall take effect and be in force from and after July 1, 2014.