SB2856 93RD GENERAL ASSEMBLY

LRB093 17776 RLC 43456 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
SB2856

Introduced 2/6/2004, by Richard J. Winkel Jr., William R. Haine

SYNOPSIS AS INTRODUCED:

720 ILCS 510/5	from Ch. 38, par. 81-25
720 ILCS 510/6	from Ch. 38, par. 81-26
720 ILCS 510/10	from Ch. 38, par. 81-30

Amends the Illinois Abortion Law of 1975. Provides that before a physician performs an abortion on a woman the physician has reason to believe is carrying a fetus of 20 or more weeks gestational age, the physician shall first determine if the fetus is viable by using and exercising that degree of care, skill, and proficiency commonly exercised by the ordinary skillful, careful, and prudent physician. Provides that an abortion of a viable fetus may be performed or induced only when there is in attendance a physician (other than the physician performing or inducing the abortion) who shall take control of and provide immediate medical care for any child born as a result of the abortion. Provides that an abortion shall not be performed when the fetus is viable except in a hospital, on an inpatient basis, with measures for life support available if the child is born alive. Provides exceptions in cases of medical emergencies. Provides that violations of these provisions are punishable as a Class 3 felony.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning abortions.

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 5, 6, and 10 as follows:

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

Sec. 5. (1) 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.

(1.5) Before a physician performs an abortion on a woman the physician has reason to believe is carrying a fetus of 20 or more weeks gestational age, the physician shall first determine if the fetus is viable by using and exercising that degree of care, skill, and proficiency commonly exercised by the ordinary skillful, careful, and prudent physician. In making the determination of viability, the physician shall perform or cause to be performed those medical examinations and tests that are necessary to make findings of the gestational age, weight, and lung maturity of the fetus, except when, in the physician's medical judgment, those tests would not be useful in determining viability or would be dangerous to the mother or the unborn child, in which case, the physician shall describe the basis of the medical judgment and include it in the medical record of the mother. If tests are performed, the physician shall enter those findings and the determination of viability in the medical record of the mother. The requirement of determining viability does not apply when, in the medical judgment of the physician performing or inducing the abortion based on the particular facts of the case before the physician, there exists a medical emergency that prevents compliance with determining viability; in that case, the physician shall describe the basis of the medical judgment and include it in the medical record of the mother. A physician who intentionally, knowingly, or recklessly violates this subsection (1.5) commits a Class 3 felony.

(2) 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) An abortion of a viable fetus may be performed or induced only when there is in attendance a physician (other than the physician performing or inducing the abortion) who shall take control of and provide immediate medical care for any child born as a result of the abortion. The requirement of a second attending physician does not apply when, in the medical judgment of a physician performing or inducing the abortion based on the particular facts of the case before the physician, there exists a medical emergency that prevents having a second physician in attendance; in that case, the physician shall describe the basis of that medical judgment and include it in the medical record of the mother. A physician who intentionally, knowingly, or recklessly fails to arrange for the attendance of a second physician in violation of this subsection (3) commits a Class 3 felony.

(4) An abortion shall not be performed when the fetus is viable except in a hospital, on an inpatient basis, with measures for life support available if the child is born alive. This requirement does not apply when, in the medical judgment of the physician performing the abortion, based on the particular facts of the case, a medical emergency exists that would prevent compliance. In the case of a medical emergency, the physician shall describe the basis of the medical judgment and include it in the medical record of the mother. Any physician who intentionally, knowingly, or recklessly violates this subsection (4) is guilty of a Class 3 felony.

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

(720 ILCS 510/6) (from Ch. 38, par. 81-26)

Sec. 6. (1) (a) Any physician who intentionally performs an abortion when, in his medical judgment 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, shall utilize that method of abortion which, of those he knows to be available, is in his medical judgment most likely to preserve the life and health of the fetus.

(b) The physician shall certify in writing, on a form prescribed by the Department under Section 10 of this Act, the available methods considered and the reasons for choosing the method employed.

(c) Any physician who intentionally, knowingly, or recklessly violates the provisions of Section 6(1)(a) commits a Class 3 felony.

(2) (a) No abortion shall be performed or induced when the fetus is viable unless there is in attendance a physician other than the physician performing or inducing the abortion who shall take control of and provide immediate medical care for any child born alive as a result of the abortion. This requirement shall not apply when, in the medical judgment of the physician performing or inducing the abortion based on the particular facts of the case before him, there exists a medical emergency; in such a case, the physician shall describe the basis of this judgment on the form prescribed by Section 10 of this Act. Any physician who intentionally performs or induces such an abortion and who intentionally, knowingly, or recklessly fails to arrange for the attendance of such a second physician in violation of Section 6(2)(a) commits a Class 3 felony.

(b) Subsequent to the abortion, if a child is born alive, the physician required by Section 5(3) 6(2)(a) to be in attendance shall exercise the same degree of professional skill, care and diligence to preserve the life and health of the child as would be required of a physician providing immediate medical care to a child born alive in the course of a pregnancy termination which was not an abortion. Any such physician who intentionally, knowingly, or recklessly violates Section 6(2)(b) commits a Class 3 felony.

(3) The law of this State shall not be construed to imply that any living individual organism of the species homo sapiens who has been born alive is not an individual under the "Criminal Code of 1961," approved July 28, 1961, as amended.

(4) (a) Any physician who intentionally performs an abortion when, in his medical judgment based on the particular facts of the case before him, there is a reasonable possibility of sustained survival of the fetus outside the womb, with or without artificial support, shall utilize that method of abortion which, of those he knows to be available, is in his medical judgment most likely to preserve the life and health of the fetus.

(b) The physician shall certify in writing, on a form prescribed by the Department under Section 10 of this Act, the available methods considered and the reasons for choosing the method employed.

(c) Any physician who intentionally, knowingly, or recklessly violates the provisions of Section 6(4)(a) commits a Class 3 felony.

(5) Nothing in Section 6 requires a physician to employ a method of abortion which, in the medical judgment of the physician performing the abortion based on the particular facts of the case before him, would increase medical risk to the mother.

(6) When the fetus is viable and when there exists reasonable medical certainty (a) that the particular method of abortion to be employed will cause organic pain to the fetus, and (b) that use of an anesthetic or analgesic would abolish or alleviate organic pain to the fetus caused by the particular method of abortion to be employed, then the physician who is to perform the abortion or his agent or the referring physician or his agent shall inform the woman upon whom the abortion is to be performed that such an anesthetic or analgesic is available, if he knows it to be available, for use to abolish or alleviate organic pain caused to the fetus by the particular method of abortion to be employed. Any person who performs an abortion with knowledge that any such reasonable medical certainty exists and that such an anesthetic or analgesic is available, and intentionally fails to so inform the woman or to ascertain that the woman has been so informed commits a Class B misdemeanor. The foregoing requirements of subsection (6) of Section 6 shall not apply (a) when in the medical judgment of the physician who is to perform the abortion or the referring physician based upon the particular facts of the case before him: (i) there exists a medical emergency, or (ii) the administration of such an anesthetic or analgesic would decrease a possibility of sustained survival of the fetus apart from the body of the mother, with or without artificial support, or (b) when the physician who is to perform the abortion administers an anesthetic or an analgesic to the woman or the fetus and he knows there exists reasonable medical certainty that such use will abolish organic pain caused to the fetus during the course of the abortion.

(7) No person shall sell or experiment upon a fetus produced by the fertilization of a human ovum by a human sperm unless such experimentation is therapeutic to the fetus thereby produced. Intentional violation of this section is a Class A misdemeanor. Nothing in this subsection (7) is intended to prohibit the performance of in vitro fertilization.

(8) No person shall intentionally perform an abortion with knowledge that the pregnant woman is seeking the abortion solely on account of the sex of the fetus. Nothing in Section 6(8) shall be construed to proscribe the performance of an abortion on account of the sex of the fetus because of a genetic disorder linked to that sex. If the application of Section 6(8) to the period of pregnancy prior to viability is held invalid, then such invalidity shall not affect its application to the period of pregnancy subsequent to viability.

(Source: P.A. 84-1001.)

(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(1.5), 5(3), 5(4), 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 with the Speaker, the Minority Leader and the Clerk of the House of Representatives and the President, the Minority Leader and the Secretary of the Senate and the Legislative Research Unit, as required by Section 3.1 of "An Act to revise the law in relation to the General Assembly", approved February 25, 1874, as amended, 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. 84-1438.)