Illinois General Assembly - Full Text of HB2058
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Full Text of HB2058  101st General Assembly




State of Illinois
2019 and 2020


Introduced , by Rep. Patrick Windhorst


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    Amends the Illinois Abortion Law of 1975. Provides that except in the case of a medical emergency, a physician or person shall not knowingly perform, induce, or attempt to perform an abortion upon a pregnant woman when the probable gestational age of her unborn child has been determined to be at least 20 weeks. Provides that a woman upon whom an abortion in violation of the Act is performed or induced may not be prosecuted under the Act for a conspiracy to violate the 20 week requirement. Provides that the woman, the father of the unborn child if married to the mother at the time she receives an abortion in violation of the Act, or, if the mother has not attained the age of 18 years at the time of the abortion, or both, the maternal grandparents of the unborn child, may in a civil action obtain appropriate relief, unless the pregnancy resulted from the plaintiff's criminal conduct or, if brought by the maternal grandparents, the maternal grandparents consented to the abortion. Provides that a medical facility licensed under the Ambulatory Surgical Treatment Center Act or the Hospital Licensing Act in which an abortion is performed or induced in violation of the Act shall be subject to immediate revocation of its license by the Department of Public Health. Provides that a medical facility licensed under the Ambulatory Surgical Treatment Center Act or the Hospital Licensing Act in which an abortion is performed or induced in violation of the Act shall lose all State funding for 2 years and shall reimburse the State for moneys or grants received from the State by the medical facility for the fiscal year in which the abortion in violation of the Act was performed.

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HB2058LRB101 07743 SLF 52792 b

1    AN ACT concerning criminal law.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The Illinois Abortion Law of 1975 is amended by
5changing Sections 2, 5, 10, and 14 and by adding Sections 1.1,
61.2, 11.2, 11.3, 11.4, and 11.5 as follows:
7    (720 ILCS 510/1.1 new)
8    Sec. 1.1. Legislative findings and purposes.
9    (1) The General Assembly of the State of Illinois does
10solemnly declare and find that:
11        (a) Abortion can cause serious physical and
12    psychological (both short-term and long-term)
13    complications for women, including but not limited to:
14    uterine perforation, uterine scarring, cervical
15    perforation or other injury, infection, bleeding,
16    hemorrhage, blood clots, failure to actually terminate the
17    pregnancy, incomplete abortion (retained tissue), pelvic
18    inflammatory disease, endometritis, missed ectopic
19    pregnancy, cardiac arrest, respiratory arrest, renal
20    failure, metabolic disorder, shock, embolism, coma,
21    placenta previa in subsequent pregnancies, preterm birth
22    in subsequent pregnancies, free fluid in the abdomen, organ
23    damage, adverse reactions to anesthesia and other drugs,



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1    psychological or emotional complications including
2    depression, anxiety, sleeping disorders, an increased risk
3    of breast cancer, and death.
4        (b) Abortion has a higher medical risk when the
5    procedure is performed later in pregnancy. Compared to an
6    abortion at 8 weeks gestation or earlier, the relative risk
7    increases exponentially at higher gestations (L. Bartlett
8    et al., Risk factors for legal induced abortion-related
9    mortality in the United States, OBSTETRICS & GYNECOLOGY
10    103(4):729 (2004)).
11        (c) In fact, the incidence of major complications is
12    highest after 20 weeks of gestation (J. Pregler & A.
14    PRACTICE 232 (2002)).
15        (d) According to the Alan Guttmacher Institute, the
16    risk of death associated with abortion increases with the
17    length of pregnancy, from one death for every one million
18    abortions at or before eight weeks gestation to one per
19    29,000 abortions at 16 to 20 weeks gestation and one per
20    11,000 abortions at 21 or more weeks gestation (citing L.
21    Bartlett et al., Risk factors for legal induced
22    abortion-related mortality in the United States,
23    OBSTETRICS & GYNECOLOGY 103(4):729–737 (2004)).
24        (e) After the first trimester, the risk of hemorrhage
25    from an abortion, in particular, is greater, and the
26    resultant complications may require a hysterectomy, other



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1    reparative surgery, or a blood transfusion.
2        (f) The State of Illinois has a legitimate concern for
3    the public's health and safety (Williamson v. Lee Optical,
4    348 U.S. 483, 486 (1955)).
5        (g) The State of Illinois "has legitimate interests
6    from the outset of pregnancy in protecting the health of
7    women" (Planned Parenthood of Southeastern Pennsylvania v.
8    Casey, 505 U.S. 833, 847 (1992)). More specifically, the
9    State of Illinois "has a legitimate concern with the health
10    of women who undergo abortions" (Akron v. Akron Ctr. for
11    Reproductive Health, Inc., 462 U.S. 416, 428-29 (1983)).
12        (h) In addition, there is substantial and
13    well-documented medical evidence that an unborn child by at
14    least 20 weeks gestation has the capacity to feel pain
15    during an abortion (K. Anand, Pain and its effects in the
16    human neonate and fetus, N.E.J.M. 317:1321 (1987)).
17        (i) Pain receptors (nociceptors) are present
18    throughout the unborn child's entire body no later than 18
19    weeks gestation.
20        (j) By 10 weeks gestation, the unborn child reacts to
21    touch.
22        (k) In the unborn child, application of such painful
23    stimuli is associated with significant increases in stress
24    hormones known as the stress response.
25        (l) Subjection to such painful stimuli is associated
26    with long-term harmful neurodevelopmental effects, such as



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1    altered pain sensitivity and, possibly, emotional,
2    behavioral, and learning disabilities later in life.
3        (m) For the purposes of surgery on unborn children,
4    fetal anesthesia is routinely administered and is
5    associated with a decrease in stress hormones compared to
6    their level when painful stimuli are applied without the
7    anesthesia.
8        (n) The position, asserted by some medical experts,
9    that the unborn child is incapable of experiencing pain
10    until a point later in pregnancy than 20 weeks gestation
11    predominantly rests on the assumption that the ability to
12    experience pain depends on the cerebral cortex and requires
13    nerve connections between the thalamus and the cortex.
14    However, recent medical research and analysis, especially
15    since 2007, provides strong evidence for the conclusion
16    that a functioning cortex is not necessary to experience
17    pain.
18        (o) Substantial evidence indicates that children born
19    missing the bulk of the cerebral cortex, those with
20    hydranencephaly, nevertheless experience pain.
21        (p) In adults, stimulation or ablation of the cerebral
22    cortex does not alter pain perception, while stimulation or
23    ablation of the thalamus does.
24        (q) Substantial evidence indicates that structures
25    used for pain processing in early development differ from
26    those of adults, using different neural elements available



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1    at specific times during development, such as the
2    subcortical plate, to fulfill the role of pain processing.
3        (r) The position, asserted by some medical experts,
4    that the unborn child remains in a coma-like sleep state
5    that precludes the unborn child experiencing pain is
6    inconsistent with the documented reaction of unborn
7    children to painful stimuli and with the experience of
8    fetal surgeons who have found it necessary to sedate the
9    unborn child with anesthesia to prevent the unborn child
10    from thrashing about in reaction to invasive surgery.
11    (2) Based on the findings in subsection (1), the General
12Assembly's purposes in enacting this amendatory Act of the
13101st General Assembly are to:
14        (a) Based on the documented risks to women's health,
15    prohibit abortions at or after 20 weeks gestation, except
16    in cases of a medical emergency.
17        (b) Prohibit abortions at or after 20 weeks gestation,
18    in part, because of the pain felt by an unborn child.
19        (c) Define "medical emergency" to encompass
20    "significant health risks", namely only those
21    circumstances in which a pregnant woman's life or a major
22    bodily function is threatened (Gonzales v. Carhart, 550
23    U.S. 124, 161 (2007)).
24    (720 ILCS 510/1.2 new)
25    Sec. 1.2. Construction.



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1    (a) Nothing in this Act shall be construed as creating or
2recognizing a right to an abortion.
3    (b) It is not the intention of this Act to make lawful an
4abortion that is currently unlawful.
5    (720 ILCS 510/2)  (from Ch. 38, par. 81-22)
6    Sec. 2. Unless the language or context clearly indicates a
7different meaning is intended, the following words or phrases
8for the purpose of this Law shall be given the meaning ascribed
9to them:
10    (1) "Viability" means that stage of fetal development when,
11in the medical judgment of the attending physician based on the
12particular facts of the case before him, there is a reasonable
13likelihood of sustained survival of the fetus outside the womb,
14with or without artificial support.
15    (2) "Physician" means any person licensed to practice
16medicine in all its branches under the Illinois Medical
17Practice Act of 1987, as amended, including a doctor of
19    (3) "Department" means the Department of Public Health,
20State of Illinois.
21    (4) "Abortion" means the use of any instrument, medicine,
22drug or any other substance or device to terminate the
23pregnancy of a woman known to be pregnant with an intention
24other than to increase the probability of a live birth, to
25preserve the life or health of the child after live birth, or



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1to remove a dead fetus.
2    (5) "Fertilization" and "conception" each mean the
3fertilization of a human ovum by a human sperm, which shall be
4deemed to have occurred at the time when it is known a
5spermatozoon has penetrated the cell membrane of the ovum.
6    (6) "Fetus" and "unborn child" each mean an individual
7organism of the species homo sapiens from fertilization until
8live birth.
9    (7) "Abortifacient" means any instrument, medicine, drug,
10or any other substance or device which is known to cause fetal
11death when employed in the usual and customary use for which it
12is manufactured, whether or not the fetus is known to exist
13when such substance or device is employed.
14    (8) "Born alive", "live born", and "live birth", when
15applied to an individual organism of the species homo sapiens,
16each mean he or she was completely expelled or extracted from
17his or her mother and after such separation breathed or showed
18evidence of any of the following: beating of the heart,
19pulsation of the umbilical cord, or definite movement of
20voluntary muscles, irrespective of the duration of pregnancy
21and whether or not the umbilical cord has been cut or the
22placenta is attached.
23    (9) "Attempt to perform" means an act or omission of a
24statutorily required act that, under the circumstances as the
25actor believes them to be, constitutes a substantial step in a
26course of conduct planned to culminate in the performance or



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1induction of an abortion.
2    (10) "Conception" means the fusion of a human spermatozoon
3with a human ovum.
4    (11) "Gestational age" means the time that has elapsed
5since the first day of the woman's last menstrual period.
6    (12) "Major bodily function" includes, but is not limited
7to, functions of the immune system, normal cell growth, and
8digestive, bowel, bladder, neurological, brain, respiratory,
9circulatory, endocrine, and reproductive functions.
10    (13) "Medical facility" means any public or private
11hospital, clinic, center, medical school, medical training
12institution, healthcare facility, physician's office,
13infirmary, or dispensary.
14    (14) "Pregnant" or "pregnancy" means that female
15reproductive condition of having an unborn child in the woman's
17    (15) "Probable gestational age" means what, in reasonable
18medical judgment, will with reasonable probability be the
19gestational age of the unborn child at the time the abortion is
20considered, performed, or attempted.
21    (16) "Reasonable medical judgment" means that medical
22judgment that would be made by a reasonably prudent physician,
23knowledgeable about the case and the treatment possibilities
24with respect to the medical condition or conditions involved.
25(Source: P.A. 85-1209.)



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1    (720 ILCS 510/5)  (from Ch. 38, par. 81-25)
2    Sec. 5. (1) When the fetus is viable no abortion shall be
3performed unless in the medical judgment of the attending or
4referring physician, based on the particular facts of the case
5before him, it is necessary to preserve the life or health of
6the mother. Intentional, knowing, or reckless failure to
7conform to the requirements of subsection (1) of Section 5 is a
8Class 2 felony.
9    (2) When the fetus is viable the physician shall certify in
10writing, on a form prescribed by the Department under Section
1110 of this Law, the medical indications which, in his medical
12judgment based on the particular facts of the case before him,
13warrant performance of the abortion to preserve the life or
14health of the mother.
15    (3) Except in the case of a medical emergency as
16specifically defined in subsection (5), no abortion shall be
17performed, induced, or attempted unless the attending or
18referring physician has first made a determination of the
19probable gestational age of the unborn child. In making the
20determination, the attending or referring physician shall make
21the inquiries of the pregnant woman and perform or cause to be
22performed all the medical examinations, imaging studies, and
23tests as a reasonably prudent physician, knowledgeable about
24the medical facts and conditions of both the woman and the
25unborn child involved, would consider necessary to perform and
26consider in making an accurate diagnosis with respect to



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1gestational age.
2    (4) Except in the case of a medical emergency as
3specifically defined in subsection (5), a physician or person
4shall not knowingly perform, induce, or attempt to perform an
5abortion upon a pregnant woman when the probable gestational
6age of her unborn child has been determined to be at least 20
7weeks. Intentional, knowing, or reckless failure to conform to
8the requirements of this subsection (4) is a Class 2 felony.
9    (5) In this Act only, "medical emergency" means a condition
10in which an abortion is necessary to preserve the life of the
11pregnant woman whose life is endangered by a physical disorder,
12physical illness, or physical injury, including a
13life-endangering physical condition caused by or arising from
14the pregnancy itself, or when continuation of the pregnancy
15will create a serious risk of substantial and irreversible
16impairment of a major bodily function (as specifically defined
17in subsection (12) of Section 2) of the pregnant woman.
18    (6) Any physician who performs an abortion under subsection
19(5) shall certify in writing, on a form prescribed by the
20Department under Section 10 of this Law, the reason or reasons
21for the determination that a medical emergency existed. The
22physician and the medical facility shall retain a copy of the
23written reports required under this Section for not less than 5
25    Failure to report under this Section does not subject the
26physician to criminal or civil penalties under Sections 11 and



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111.3. Subsection (5) does not preclude sanctions, disciplinary
2action, or any other appropriate action by the Illinois State
3Medical Disciplinary Board.
4(Source: P.A. 83-1128.)
5    (720 ILCS 510/10)  (from Ch. 38, par. 81-30)
6    Sec. 10. A report of each abortion performed shall be made
7to the Department on forms prescribed by it. Such report forms
8shall not identify the patient by name, but by an individual
9number to be noted in the patient's permanent record in the
10possession of the physician, and shall include information
12        (1) Identification of the physician who performed the
13    abortion and the facility where the abortion was performed
14    and a patient identification number;
15        (2) State in which the patient resides;
16        (3) Patient's date of birth, race and marital status;
17        (4) Number of prior pregnancies;
18        (5) Date of last menstrual period;
19        (6) Type of abortion procedure performed;
20        (7) Complications and whether the abortion resulted in
21    a live birth;
22        (8) The date the abortion was performed;
23        (9) Medical indications for any abortion performed
24    when the fetus was viable;
25        (10) The information required by Sections 6(1)(b) and



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1    6(4)(b) of this Act, if applicable;
2        (11) Basis for any medical judgment that a medical
3    emergency existed when required under Sections 5(6),
4    6(2)(a) and 6(6) and when required to be reported in
5    accordance with this Section by any provision of this Law;
6    and
7        (12) The pathologist's test results pursuant to
8    Section 12 of this Act.
9    Such form shall be completed by the hospital or other
10licensed facility, signed by the physician who performed the
11abortion or pregnancy termination, and transmitted to the
12Department not later than 10 days following the end of the
13month in which the abortion was performed.
14    In the event that a complication of an abortion occurs or
15becomes known after submission of such form, a correction using
16the same patient identification number shall be submitted to
17the Department within 10 days of its becoming known.
18    The Department may prescribe rules and regulations
19regarding the administration of this Law and shall prescribe
20regulations to secure the confidentiality of the woman's
21identity in the information to be provided under the "Vital
22Records Act". All reports received by the Department shall be
23treated as confidential and the Department shall secure the
24woman's anonymity. Such reports shall be used only for
25statistical purposes.
26    Upon 30 days public notice, the Department is empowered to



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1require reporting of any additional information which, in the
2sound discretion of the Department, is necessary to develop
3statistical data relating to the protection of maternal or
4fetal life or health, or is necessary to enforce the provisions
5of this Law, or is necessary to develop useful criteria for
6medical decisions. The Department shall annually report to the
7General Assembly all statistical data gathered under this Law
8and its recommendations to further the purpose of this Law.
9    The requirement for reporting to the General Assembly shall
10be satisfied by filing copies of the report as required by
11Section 3.1 of the General Assembly Organization Act, and
12filing such additional copies with the State Government Report
13Distribution Center for the General Assembly as is required
14under paragraph (t) of Section 7 of the State Library Act.
15(Source: P.A. 100-1148, eff. 12-10-18.)
16    (720 ILCS 510/11.2 new)
17    Sec. 11.2. Prosecutorial exclusion. A woman upon whom an
18abortion in violation of this Act is performed or induced may
19not be prosecuted under this Act for a conspiracy to violate
20subsection (4) of Section 5.
21    (720 ILCS 510/11.3 new)
22    Sec. 11.3. Civil remedies.
23    (1) The woman, the father of the unborn child if married to
24the mother at the time she receives an abortion in violation of



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1this Act, or, if the mother has not attained the age of 18
2years at the time of the abortion, or both, the maternal
3grandparents of the unborn child, may in a civil action obtain
4appropriate relief, unless the pregnancy resulted from the
5plaintiff's criminal conduct or, if brought by the maternal
6grandparents, the maternal grandparents consented to the
8    (2) The relief shall include:
9        (a) money damages for all psychological and physical
10    injuries occasioned by the violation of this Act; and
11        (b) statutory damages equal to 3 times the cost of the
12    abortion performed in violation of this Act.
13    (720 ILCS 510/11.4 new)
14    Sec. 11.4. Review by Medical Board.
15    (1) A physician defendant accused of violating this Act may
16seek a hearing before the Illinois State Medical Disciplinary
17Board as to whether the physician's conduct was necessary to
18save the life of the mother whose life was endangered by a
19physical disorder, physical illness, or physical injury,
20including a life-endangering physical condition caused by or
21arising from the pregnancy itself; or as to whether the
22continuation of the pregnancy would have created a serious risk
23of substantial and irreversible impairment of a major bodily
24function (as specifically defined in subsection (12) of Section
252) of the pregnant woman, or both.



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1    (2) The findings on this issue are admissible at the
2criminal and civil trials of the physician defendant. Upon a
3motion of the physician defendant, the court shall delay the
4beginning of the trial or trials for not more than 30 days to
5permit the hearing to take place.
6    (720 ILCS 510/11.5 new)
7    Sec. 11.5. Penalties for medical facilities.
8    (1) A medical facility licensed under the Ambulatory
9Surgical Treatment Center Act or the Hospital Licensing Act in
10which an abortion is performed or induced in violation of this
11Act shall be subject to immediate revocation of its license by
12the Department.
13    (2) A medical facility licensed under the Ambulatory
14Surgical Treatment Center Act or the Hospital Licensing Act in
15which an abortion is performed or induced in violation of this
16Act shall lose all State funding for 2 years and shall
17reimburse the State for moneys or grants received by the
18medical facility from the State for the fiscal year in which
19the abortion in violation of this Act was performed.
20    (720 ILCS 510/14)  (from Ch. 38, par. 81-34)
21    Sec. 14. (1) If any provision, word, phrase or clause of
22this Act or the application thereof to any person or
23circumstance shall be held invalid, such invalidity shall not
24affect the provisions, words, phrases, clauses or application



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1of this Act which can be given effect without the invalid
2provision, word, phrase, clause, or application, and to this
3end the provisions, words, phrases, and clauses of this Act are
4declared to be severable.
5    (2) Within 60 days from the time this Section becomes law,
6the Department shall issue regulations pursuant to Section 10.
7Insofar as Section 10 requires registration under the "Vital
8Records Act", it shall not take effect until such regulations
9are issued. The Department shall make available the forms
10required under Section 10 within 30 days of the time this
11Section becomes law. No requirement that any person report
12information to the Department shall become effective until the
13Department has made available the forms required under Section
1410. All other provisions of this amended Law shall take effect
15immediately upon enactment.
16    (3) The General Assembly, by joint resolution, may appoint
17one or more of its members, who sponsored or cosponsored this
18Act in his or her official capacity, to intervene as a matter
19of right in any case in which the constitutionality of this
20amendatory Act of the 101st General Assembly is challenged.
21(Source: P.A. 83-1128.)



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2 Statutes amended in order of appearance
3    720 ILCS 510/1.1 new
4    720 ILCS 510/1.2 new
5    720 ILCS 510/2from Ch. 38, par. 81-22
6    720 ILCS 510/5from Ch. 38, par. 81-25
7    720 ILCS 510/10from Ch. 38, par. 81-30
8    720 ILCS 510/11.2 new
9    720 ILCS 510/11.3 new
10    720 ILCS 510/11.4 new
11    720 ILCS 510/11.5 new
12    720 ILCS 510/14from Ch. 38, par. 81-34