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S.F. No. 649 - Pain-Capable Unborn Child Protection Act (The Delete-Everything Amendment)
 
Author: Senator Gretchen M. Hoffman
 
Prepared By: Katie Cavanor, Senate Counsel (651/296-3801)
 
Date: April 12, 2011



 
S.F. No. 649 requires a physician prior to performing or inducing an abortion to determine the postfertilization age of the unborn child and prohibits performing or attempting to perform an abortion if the postfertilization age is 20 weeks or more, unless a medical emergency or medical condition exists.
  
Section 1 permits this act to be cited as the “Pain-Capable unborn Child Protection Act.”
 
Section 2 (8.40) establishes in the special revenue fund a litigation account for the purpose of providing funds to pay for litigation costs and expenses that may be incurred by the Attorney General related to the defense of this act. The account shall consist of state appropriations and any donation, gifts, or grants made by private citizens or entities. 
 
Section 3 (145.4131, subd.1) adds to the current list of information that must be included on the abortion reporting forms used by physicians and facilities performing abortions:
 
·         whether a determination of possible postfertilization age was made and the probable age determined, as well as the method used, or, if no determination was made, the basis of determination that a medical emergency existed; and
 
·         for abortions performed after a determination of postfertilization age of 20 or more weeks, the basis of the determination that the woman’s condition necessitated the abortion.
 
 
Section 4 (145.4141) defines the following terms for purposes of sections 4 through 11: abortion; attempt to perform or induce an abortion; fertilization; medical emergency; physician; postfertilization age; probable postfertilization age of the unborn child; reasonable medical judgment; unborn child or fetus; woman.
 
Section 5 (145.4142) sets out legislative findings.
 
Section 6 (145.4143) requires the physician who is performing or inducing the abortion to determine the probable postfertilization age of the unborn child.
 
Subdivision 1 requires that except in the case of a medical emergency, no abortion be performed or induced or attempted to be performed or induced, unless the physician who is performing or inducing it has first made a determination of the postfertilization age of the unborn child or relied upon such a determination made by another physician. A determination must be made through inquiries of the woman and by performing necessary examinations or tests to make an accurate diagnosis.
 
Subdivision 2 states that failure by any physician to conform to the requirement of this section constitutes unprofessional conduct.
 
Section 7 (145.4144) prohibits an abortion of an unborn child of 20 or more weeks and provides an exemption.
 
Subdivision 1 prohibits the performance or induction or the attempt to perform or induce an abortion upon a woman when it has been determined that the postfertilization age of the unborn child is 20 or more weeks, unless in reasonable medical judgment the woman has a condition that so complicates her medical condition to necessitate an abortion to avert her death or serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions.
 
Subdivision 2 states that when an abortion is not prohibited under this section, the physician shall terminate the pregnancy in a manner that in reasonable medical judgment provides the best opportunity for the unborn child to survive, unless that manner would pose a greater risk either of death or of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, than would other available methods.
 
Section 8 (145.4145) establishes criminal and civil penalties.
 
Subdivision 1 makes it a felony to intentionally or recklessly perform or attempt to perform an abortion in violation of this act. States that no penalty may be assessed against the woman upon whom the abortion is performed or attempted.
Subdivision 2, paragraph (a), establishes a cause of action against a person who intentionally or recklessly performs an abortion in violation of this act.
Paragraph (b) establishes a cause of action for injunctive relief against a person who intentionally violates this act. Provides that the injunction would prevent the abortion provider from performing or attempting to perform further abortions in this state in violation of this act.
Paragraph (c) requires a judgment for attorney fees against the defendant if the court finds in favor of the plaintiff in an action described in this section.
Paragraph (d) requires a judgment for attorney fees against the plaintiff if the court finds in favor of the defendant in an action described in this section, and the court finds that the suit was frivolous or brought in bad faith.
Paragraph (e) states that no attorney fees may be assessed against a woman upon whom an abortion was performed or attempted, except according to paragraph (d).
Section 9 (145.4146) requires that in every civil or criminal action brought under this act, the court must rule on whether to preserve the anonymity of the woman upon whom the abortion was performed or attempted, if the woman does not give consent to disclosure of her identity. Provides direction to the court as to procedures for preserving the woman’s anonymity if such an order is issued, and requires written findings as to such an order. Requires anyone who brings an action under Section 145.4145, subdivision 2, other than a public official, to do so under a pseudonym in the absence of written consent of the woman upon whom an abortion was performed or attempted. Provides that this section may not be used to conceal the identity of the plaintiff or of witnesses from the defendant.
Section 10 (145.4147) creates a severability clause stating that any part of this act, or the application of such, found to be unconstitutional is severable and the remainder of the act shall remain effective regardless of any unconstitutional provision.
Section 11 (145.4148) gives the Minnesota Supreme Court original jurisdiction over any action challenging the constitutionality of this act and the Court shall expedite resolution of the action.
 
 
KC/rdr
 
                       
 
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