HB2384 101ST GENERAL ASSEMBLY

LRB101 09441 SLF 54539 b

101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB2384

Introduced , by Rep. Patrick Windhorst

SYNOPSIS AS INTRODUCED:

See Index

Amends the Illinois Abortion Law of 1975. Provides that except in the case of a medical emergency, a physician or person may 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 viable. 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.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Abortion Law of 1975 is amended by changing Sections 2, 5, 10, and 14 and by adding Sections 1.1, 1.2, 11.2, 11.3, 11.4, and 11.5 as follows:

(720 ILCS 510/1.1 new)

Sec. 1.1. Legislative findings and purposes.

(1) The General Assembly of the State of Illinois does solemnly declare and find that:

(a) Abortion can cause serious physical and psychological (both short-term and long-term) complications for women, including but not limited to: uterine perforation, uterine scarring, cervical perforation or other injury, infection, bleeding, hemorrhage, blood clots, failure to actually terminate the pregnancy, incomplete abortion (retained tissue), pelvic inflammatory disease, endometritis, missed ectopic pregnancy, cardiac arrest, respiratory arrest, renal failure, metabolic disorder, shock, embolism, coma, placenta previa in subsequent pregnancies, preterm birth in subsequent pregnancies, free fluid in the abdomen, organ damage, adverse reactions to anesthesia and other drugs, psychological or emotional complications including depression, anxiety, sleeping disorders, an increased risk of breast cancer, and death.

(b) Abortion has a higher medical risk when the procedure is performed later in pregnancy. Compared to an abortion at 8 weeks gestation or earlier, the relative risk increases exponentially at higher gestations (L. Bartlett et al., Risk factors for legal induced abortion-related mortality in the United States, OBSTETRICS & GYNECOLOGY 103(4):729 (2004)).

(c) In fact, the incidence of major complications is highest after 20 weeks of gestation (J. Pregler & A. DeCherney, WOMEN'S HEALTH: PRINCIPLES AND CLINICAL PRACTICE 232 (2002)).

(d) According to the Alan Guttmacher Institute, the risk of death associated with abortion increases with the length of pregnancy, from one death for every one million abortions at or before eight weeks gestation to one per 29,000 abortions at 16 to 20 weeks gestation and one per 11,000 abortions at 21 or more weeks gestation (citing L. Bartlett et al., Risk factors for legal induced abortion-related mortality in the United States, OBSTETRICS & GYNECOLOGY 103(4):729–737 (2004)).

(e) After the first trimester, the risk of hemorrhage from an abortion, in particular, is greater, and the resultant complications may require a hysterectomy, other reparative surgery, or a blood transfusion.

(f) The State of Illinois has a legitimate concern for the public's health and safety (Williamson v. Lee Optical, 348 U.S. 483, 486 (1955)).

(g) The State of Illinois "has legitimate interests from the outset of pregnancy in protecting the health of women" (Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 847 (1992)). More specifically, the State of Illinois "has a legitimate concern with the health of women who undergo abortions" (Akron v. Akron Ctr. for Reproductive Health, Inc., 462 U.S. 416, 428-29 (1983)).

(h) In addition, there is substantial and well-documented medical evidence that an unborn child by at least 20 weeks gestation has the capacity to feel pain during an abortion (K. Anand, Pain and its effects in the human neonate and fetus, N.E.J.M. 317:1321 (1987)).

(i) Pain receptors (nociceptors) are present throughout the unborn child's entire body no later than 18 weeks gestation.

(j) By 10 weeks gestation, the unborn child reacts to touch.

(k) In the unborn child, application of such painful stimuli is associated with significant increases in stress hormones known as the stress response.

(l) Subjection to such painful stimuli is associated with long-term harmful neurodevelopmental effects, such as altered pain sensitivity and, possibly, emotional, behavioral, and learning disabilities later in life.

(m) For the purposes of surgery on unborn children, fetal anesthesia is routinely administered and is associated with a decrease in stress hormones compared to their level when painful stimuli are applied without the anesthesia.

(n) The position, asserted by some medical experts, that the unborn child is incapable of experiencing pain until a point later in pregnancy than 20 weeks gestation predominantly rests on the assumption that the ability to experience pain depends on the cerebral cortex and requires nerve connections between the thalamus and the cortex. However, recent medical research and analysis, especially since 2007, provides strong evidence for the conclusion that a functioning cortex is not necessary to experience pain.

(o) Substantial evidence indicates that children born missing the bulk of the cerebral cortex, those with hydranencephaly, nevertheless experience pain.

(p) In adults, stimulation or ablation of the cerebral cortex does not alter pain perception, while stimulation or ablation of the thalamus does.

(q) Substantial evidence indicates that structures used for pain processing in early development differ from those of adults, using different neural elements available at specific times during development, such as the subcortical plate, to fulfill the role of pain processing.

(r) The position, asserted by some medical experts, that the unborn child remains in a coma-like sleep state that precludes the unborn child experiencing pain is inconsistent with the documented reaction of unborn children to painful stimuli and with the experience of fetal surgeons who have found it necessary to sedate the unborn child with anesthesia to prevent the unborn child from thrashing about in reaction to invasive surgery.

(s) A fetus is viable at or about 24 weeks of gestation.

(2) Based on the findings in subsection (1), the General Assembly's purposes in enacting this amendatory Act of the 101st General Assembly are to:

(a) Based on the documented risks to women's health, prohibit abortions at or after fetal viability, except in cases of a medical emergency.

(b) Prohibit abortions at or after fetal viability, in part, because of the pain felt by an unborn child.

(c) Define "medical emergency" to encompass "significant health risks", namely only those circumstances in which a pregnant woman's life or a major bodily function is threatened (Gonzales v. Carhart, 550 U.S. 124, 161 (2007)).

(720 ILCS 510/1.2 new)

Sec. 1.2. Construction.

(a) Nothing in this Act shall be construed as creating or recognizing a right to an abortion.

(b) It is not the intention of this Act to make lawful an abortion that is currently unlawful.

(720 ILCS 510/2) (from Ch. 38, par. 81-22)

Sec. 2. Unless the language or context clearly indicates a different meaning is intended, the following words or phrases for the purpose of this Law shall be given the meaning ascribed to them:

(1) "Viable" or "viability" "Viability" means that stage of fetal development when, in the medical judgment of the attending physician based on the particular facts of the case before him, there is a reasonable likelihood of sustained survival of the fetus outside the womb, with or without artificial support.

(2) "Physician" means any person licensed to practice medicine in all its branches under the Illinois Medical Practice Act of 1987, as amended, including a doctor of osteopathy.

(3) "Department" means the Department of Public Health, State of Illinois.

(4) "Abortion" means the use 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.

(5) "Fertilization" and "conception" each mean the fertilization of a human ovum by a human sperm, which shall be deemed to have occurred at the time when it is known a spermatozoon has penetrated the cell membrane of the ovum.

(6) "Fetus" and "unborn child" each mean an individual organism of the species homo sapiens from fertilization until live birth.

(7) "Abortifacient" means any instrument, medicine, drug, or any other substance or device which is known to cause fetal death when employed in the usual and customary use for which it is manufactured, whether or not the fetus is known to exist when such substance or device is employed.

(8) "Born alive", "live born", and "live birth", when applied to an individual organism of the species homo sapiens, each mean he or she was completely expelled or extracted from his or her mother and after such separation breathed or showed evidence of any of the following: beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, irrespective of the duration of pregnancy and whether or not the umbilical cord has been cut or the placenta is attached.

(9) "Attempt to perform" means an act or omission of a statutorily required act that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance or induction of an abortion.

(10) "Conception" means the fusion of a human spermatozoon with a human ovum.

(11) "Gestational age" means the time that has elapsed since the first day of the woman's last menstrual period.

(12) "Major bodily function" includes, but is not limited to, functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

(13) "Medical facility" means any public or private hospital, clinic, center, medical school, medical training institution, healthcare facility, physician's office, infirmary, or dispensary.

(14) "Pregnant" or "pregnancy" means that female reproductive condition of having an unborn child in the woman's uterus.

(15) "Probable gestational age" means what, in reasonable medical judgment, will with reasonable probability be the gestational age of the unborn child at the time the abortion is considered, performed, or attempted.

(16) "Reasonable medical judgment" means that medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical condition or conditions involved.

(Source: P.A. 85-1209.)

(720 ILCS 510/5) (from Ch. 38, par. 81-25)

Sec. 5. (1) (Blank). When the fetus is viable no abortion shall be performed unless in the medical judgment of the attending or referring physician, based on the particular facts of the case before him, it is necessary to preserve the life or health of the mother. Intentional, knowing, or reckless failure to conform to the requirements of subsection (1) of Section 5 is a Class 2 felony.

(2) (Blank). When the fetus is viable the physician shall certify in writing, on a form prescribed by the Department under Section 10 of this Law, the medical indications which, in his medical judgment based on the particular facts of the case before him, warrant performance of the abortion to preserve the life or health of the mother.

(3) Except in the case of a medical emergency as specifically defined in subsection (5), no abortion shall be performed, induced, or attempted unless the attending or referring physician has first made a determination of the viability of the unborn child. In making the determination, the attending or referring physician shall make the inquiries of the pregnant woman and perform or cause to be performed all the medical examinations, imaging studies, and tests as a reasonably prudent physician, knowledgeable about the medical facts and conditions of both the woman and the unborn child involved, would consider necessary to perform and consider in making an accurate diagnosis with respect to viability.

(4) Except in the case of a medical emergency as specifically defined in subsection (5), a physician or person may not knowingly perform, induce, or attempt to perform an abortion upon a pregnant woman when her unborn child has been determined to be viable. Intentional, knowing, or reckless failure to conform to the requirements of this subsection (4) is a Class 2 felony.

(5) In this Act only, "medical emergency" means a condition in which an abortion is necessary to preserve the life of the pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself, or when continuation of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function (as specifically defined in subsection (12) of Section 2) of the pregnant woman.

(6) Any physician who performs an abortion under subsection (5) shall certify in writing, on a form prescribed by the Department under Section 10 of this Law, the reason or reasons for the determination that a medical emergency existed. The physician and the medical facility shall retain a copy of the written reports required under this Section for not less than 5 years.

Failure to report under this Section does not subject the physician to criminal or civil penalties under Sections 11 and 11.3. Subsection (5) does not preclude sanctions, disciplinary action, or any other appropriate action by the Illinois State Medical Disciplinary Board.

(Source: P.A. 83-1128.)

(720 ILCS 510/10) (from Ch. 38, par. 81-30)

Sec. 10. A report of each abortion performed shall be made to the Department on forms prescribed by it. Such report forms shall not identify the patient by name, but by an individual number to be noted in the patient's permanent record in the possession of the physician, and shall include information concerning:

(1) Identification of the physician who performed the abortion and the facility where the abortion was performed and a patient identification number;

(2) State in which the patient resides;

(3) Patient's date of birth, race and marital status;

(4) Number of prior pregnancies;

(5) Date of last menstrual period;

(6) Type of abortion procedure performed;

(7) Complications and whether the abortion resulted in a live birth;

(8) The date the abortion was performed;

(9) Medical indications for any abortion performed when the fetus was viable;

(10) The information required by Sections 6(1)(b) and 6(4)(b) of this Act, if applicable;

(11) Basis for any medical judgment that a medical emergency existed when required under Sections 5(6), 6(2)(a) and 6(6) and when required to be reported in accordance with this Section by any provision of this Law; and

(12) The pathologist's test results pursuant to Section 12 of this Act.

Such form shall be completed by the hospital or other licensed facility, signed by the physician who performed the abortion or pregnancy termination, and transmitted to the Department not later than 10 days following the end of the month in which the abortion was performed.

In the event that a complication of an abortion occurs or becomes known after submission of such form, a correction using the same patient identification number shall be submitted to the Department within 10 days of its becoming known.

The Department may prescribe rules and regulations regarding the administration of this Law and shall prescribe regulations to secure the confidentiality of the woman's identity in the information to be provided under the "Vital Records Act". All reports received by the Department shall be treated as confidential and the Department shall secure the woman's anonymity. Such reports shall be used only for statistical purposes.

Upon 30 days public notice, the Department is empowered to require reporting of any additional information which, in the sound discretion of the Department, is necessary to develop statistical data relating to the protection of maternal or fetal life or health, or is necessary to enforce the provisions of this Law, or is necessary to develop useful criteria for medical decisions. The Department shall annually report to the General Assembly all statistical data gathered under this Law and its recommendations to further the purpose of this Law.

The requirement for reporting to the General Assembly shall be satisfied by filing copies of the report as required by Section 3.1 of the General Assembly Organization Act, and filing such additional copies with the State Government Report Distribution Center for the General Assembly as is required under paragraph (t) of Section 7 of the State Library Act.

(Source: P.A. 100-1148, eff. 12-10-18.)

(720 ILCS 510/11.2 new)

Sec. 11.2. Prosecutorial exclusion. A woman upon whom an abortion in violation of this Act is performed or induced may not be prosecuted under this Act for a conspiracy to violate subsection (4) of Section 5.

(720 ILCS 510/11.3 new)

Sec. 11.3. Civil remedies.

(1) The woman, the father of the unborn child if married to the mother at the time she receives an abortion in violation of this 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.

(2) The relief shall include:

(a) money damages for all psychological and physical injuries occasioned by the violation of this Act; and

(b) statutory damages equal to 3 times the cost of the abortion performed in violation of this Act.

(720 ILCS 510/11.4 new)

Sec. 11.4. Review by Medical Board.

(1) A physician defendant accused of violating this Act may seek a hearing before the Illinois State Medical Disciplinary Board as to whether the physician's conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself; or as to whether the continuation of the pregnancy would have created a serious risk of substantial and irreversible impairment of a major bodily function (as specifically defined in subsection (12) of Section 2) of the pregnant woman, or both.

(2) The findings on this issue are admissible at the criminal and civil trials of the physician defendant. Upon a motion of the physician defendant, the court shall delay the beginning of the trial or trials for not more than 30 days to permit the hearing to take place.

(720 ILCS 510/11.5 new)

Sec. 11.5. Penalties for medical facilities.

(1) 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 this Act shall be subject to immediate revocation of its license by the Department.

(2) 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 this Act shall lose all State funding for 2 years and shall reimburse the State for moneys or grants received by the medical facility from the State for the fiscal year in which the abortion in violation of this Act was performed.

(720 ILCS 510/14) (from Ch. 38, par. 81-34)

Sec. 14. (1) If any provision, word, phrase or clause of this Act or the application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the provisions, words, phrases, clauses or application of this Act which can be given effect without the invalid provision, word, phrase, clause, or application, and to this end the provisions, words, phrases, and clauses of this Act are declared to be severable.

(2) Within 60 days from the time this Section becomes law, the Department shall issue regulations pursuant to Section 10. Insofar as Section 10 requires registration under the "Vital Records Act", it shall not take effect until such regulations are issued. The Department shall make available the forms required under Section 10 within 30 days of the time this Section becomes law. No requirement that any person report information to the Department shall become effective until the Department has made available the forms required under Section 10. All other provisions of this amended Law shall take effect immediately upon enactment.

(3) The General Assembly, by joint resolution, may appoint one or more of its members, who sponsored or cosponsored this Act in his or her official capacity, to intervene as a matter of right in any case in which the constitutionality of this amendatory Act of the 101st General Assembly is challenged.

(Source: P.A. 83-1128.)