Bill Summary for S 547 (2019-2020)

Summary date: 

Apr 4 2019

Bill Information:

View NCGA Bill Details2019-2020 Session
Senate Bill 547 (Public) Filed Tuesday, April 2, 2019
AN ACT ESTABLISHING THE PAIN CAPABLE UNBORN CHILD PROTECTION ACT.
Intro. by Krawiec, Ballard, Sawyer.

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Bill summary

Includes whereas clauses.

Enacts Article 1L, Pain Capable Unborn Child Protection Act, to GS Chapter 90. Sets forth nine defined terms. 

Prohibits performing, inducing, or attempting to perform or induce the abortion of an unborn child capable of feeling pain unless necessary to prevent a serious health risk to the unborn child's mother. Defines serious health risk to the unborn child's mother to mean that the unborn child's mother is at risk of death or substantial and irreversible physical impairment of one or more of her major bodily functions, not including psychological or emotional conditions, due to her pregnancy as determined through the use of reasonable medical judgement; prohibits such a determination if based on a claim or diagnosis that the unborn child's mother will engage in conduct that she intends to results in her death or in the substantial and irreversible physical impairment of one or more of her major bodily functions. Deems an unborn child to be capable of feeling pain if a physician, as specified, determines that the probable post-fertilization age, as defined, of the unborn child is 20 or more weeks. Specifies that a dead unborn child is not capable of feeling pain. Prohibits performing, inducing, or attempting to perform or induce an abortion without first determining the probable post-fertilization age of the unborn child. Requires medical exams and tests which a reasonably prudent physician, knowledgeable about the case and the medical conditions involved, would consider necessary in making an accurate determination. Requires the necessary abortion of an unborn child capable of feeling pain to be by a physician through or by the method that, using reasonable medical judgment, provides the best opportunity for the unborn child to survive, unless, using reasonable medical judgement, termination of the pregnancy in that manner would pose a more serious health risk to the unborn child's mother than would other available methods.

Establishes reporting requirements for physicians who perform, induce, or attempt to perform or induce an abortion, beginning January 1, 2020, to the Department of Health and Human Services (DHHS). Details requirements of the reports, including the probable post-fertilization age of the unborn child and whether an ultrasound was employed in making the determination, the method of abortion, the age and race of the unborn child's mother, and reasoning for certain determinations made, as specified. Requires each report to contain a unique medical record identifier number to match the medical records of the woman whose pregnancy was terminated, but not the name, address or other identifying information of the woman. Requires DHHS to annually publish, beginning on June 30, 2020, in paper and on its website a summary of the previous calendar year compiled from the reports. Details requirements of the annual publication, including that the summary cannot reasonably lead to the identification of women. Authorizes DHHS to assess a penalty of $1,000 for failure to submit a report required by the statute by the end of the 30th day following the due date established by DHHS, and assesses the penalty for each 30-day period or portion thereof that a report is overdue. Authorizes DHHS to bring an action for compliance with the statute after a report is six months overdue. Deems intentional or reckless failure to comply with the statute or a court order unprofessional conduct and grounds for disciplinary action. Makes it a Class 1 misdemeanor to intentionally or recklessly falsify a report required under the statute.

Makes it a Class D felony for a physician to intentionally or recklessly perform, induce, or attempt to perform or induce an abortion in violation of new GS 90-21.131, unless covered under another law with greater punishment. Excludes from prosecution a woman upon whom an abortion is performed, induced, or attempted.

Creates a cause of action for actual and punitive damages for a woman upon whom an abortion has been performed or induced, or attempted, in intentional or reckless violation of new GS 90-21.131, or the father of an unborn child aborted in intentional or reckless violation of GS 90-21.131. Provides for an injunction to prevent a person who has intentionally or recklessly violated GS 90-21.131 from performing, inducing, or attempting to perform or induce further abortions in violation of the statute, to be brought by the woman upon whom an abortion has been performed or induced, or attempted, in intentional or reckless violation of new GS 90-21.131; the spouse, parent, sibling, or guardian of, or a current or former health care provider of, the woman upon whom an abortion has been performed or induced, or attempted, in intentional or reckless violation of new GS 90-21.131; a district attorney with jurisdiction; and the Attorney General. Authorizes the award of attorneys' fees for a successful plaintiff, or a defendant when the court finds the plaintiff's case was frivolous or brought in bad faith. Prohibits the award of damages to a plaintiff whose pregnancy resulted from the plaintiff's criminal conduct. Except as provided, prohibits the assessment of damages or attorneys' fees against the woman upon whom the abortion was performed, induced, or attempted.

Requires the court to rule on whether the anonymity of the woman must be preserved from public disclosure if the woman does not give her consent to disclosure. If so determined, requires the court to issue an order to preserve the woman's anonymity to the parties, witnesses, and counsel, direct the sealing of the record, and exclusion of individuals from courtrooms and hearing rooms as necessary. Sets forth further criteria of such court orders, including justifications for the order. Requires other persons authorized to bring civil actions for injunction, as authorized, to use a pseudonym if the woman does not consent to public disclosure. Specifies that the statute cannot conceal the identity of the plaintiff or any witness from the defendant or from the defendant's attorneys. 

Creates the NC Pain Capable Unborn Child Protection Act Litigation Defense Fund (Fund) in the Office of Attorney General (Office). Requires the Fund to be placed in an interest bearing account, and receive interest earned, as well as legislative appropriations, and any private donations, gifts, or grants made to the Fund. Restricts use of the Fund's funds to covering any costs or expenses incurred by the Office in relation to actions taken to defend the laws of the Article. Deems unappropriated money in the Fund appropriated for that purpose. 

Provides for construction of the Article's provisions, and specifies that the provisions of new Article 1L of GS Chapter 90 and Article 11 of GS Chapter 14, Abortion and Kindred Offenses, are exclusive. Provides for situations where the Articles allow for lawful conduct under one but not the other, or circumstances in which some or all of the provisions are temporarily or permanently restrained or enjoined by judicial order.

Applies to offenses committed on or after December 1, 2019.

Provides a severability clause.

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