REPORT TITLE:
Post-Viable Abortions


DESCRIPTION:
Prohibits post-viable abortions; provides for class C felony
offense; allows civil action for damages.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           2481
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO ABORTION. 


BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The Hawaii Revised Statutes is amended by adding
 
 2 a new chapter to be appropriately designated and to read as
 
 3 follows:
 
 4                             "CHAPTER
 
 5                       POST-VIABLE ABORTIONS
 
 6        -1 Definitions.  As used in this chapter:
 
 7      "Abortion" means the intentional interruption of a pregnancy
 
 8 by the application of an external agent, whether chemical or
 
 9 physical, or by the ingestion of a chemical agent with an
 
10 intention other than to produce a live birth or to remove a dead
 
11 fetus.
 
12      "Post-viable abortion" means an abortion subsequent to
 
13 viability of a fetus.
 
14      "Physician" means:
 
15      (1)  A doctor of medicine licensed under chapter 453 or an
 
16           osteopathic physician licensed under chapter 460; or
 
17      (2)  A person legally authorized in the State to perform
 
18           abortions.
 
19        -2 Applicability.  This chapter shall not apply to an
 

 
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                                     S.B. NO.           2481
                                                        
                                                        

 
 1 abortion that is necessary to save the life or health of a mother
 
 2 whose life is endangered by a physical or mental disorder,
 
 3 illness, or injury.
 
 4        -3 Post-viable abortion prohibited.(a)  No physician
 
 5 shall knowingly perform a post-viable abortion that results in
 
 6 the death of a fetus.
 
 7      (b)  No person who is not a physician whether or not legally
 
 8 authorized by the State to perform abortions shall knowingly
 
 9 perform a post-viable abortion that results in the death of a
 
10 fetus.
 
11        -4 Determining viability.(a)  For purposes of
 
12 section   -3, viability shall be determined by the pregnant
 
13 woman's attending physician using due diligence and the best
 
14 medical judgment.
 
15      (b)  If a fetus is more than twenty-six weeks, the attending
 
16 physician shall obtain a second medical opinion on viability from
 
17 another physician prior to performing an abortion.  The second
 
18 medical opinion shall be in writing and made a part of the
 
19 pregnant woman's medical record.
 
20        -5 Penalty.(a)  Performing a post-viable abortion is a
 
21 class C felony.
 
22      (b)  A woman upon whom a post-viable abortion is performed
 
23 shall not be prosecuted for conspiracy to violate this chapter.
 

 
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 1        -6 Civil relief.(a)  A civil action may be brought for
 
 2 damages against a physician for violation of this chapter.  The
 
 3 action shall be brought by:
 
 4      (1)  The father of the fetus, if the father was married to
 
 5           the mother of the fetus at the time of the post-viable
 
 6           abortion; or
 
 7      (2)  The maternal grandparents of the fetus, if the mother
 
 8           of the fetus was under eighteen years of age at the
 
 9           time of the post-viable abortion.
 
10      (b)  Damages under subsection (a) shall include:
 
11      (1)  Money damages for injuries, whether psychological or
 
12           physical, or both; and
 
13      (2)  Statutory damages equal to three times the cost of the
 
14           post-viable abortion.
 
15      (c)  A civil action shall be prohibited if the pregnancy
 
16 resulted from the plaintiff's criminal conduct or the plaintiff
 
17 assented to the post-viable abortion.
 
18        -7 Administrative hearing request.(a)  A physician may
 
19 seek a hearing before the board of medical examiners or the board
 
20 of osteopathic examiners, as applicable, to determine:
 
21      (1)  Whether the fetus was viable; and
 
22      (2)  Whether the abortion was necessary to save the life or
 
23           health of a mother whose life is endangered by a
 

 
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                                     S.B. NO.           2481
                                                        
                                                        

 
 1           physical or mental disorder, illness, or injury.
 
 2      (b)  Pursuant to a hearing under subsection (a), the board
 
 3 of medical examiners or the board of osteopathic examiners, as
 
 4 applicable, shall make written findings that shall be admissible
 
 5 in a civil or criminal trial for violation of this chapter.
 
 6      (c)  The hearing and findings shall be completed not later
 
 7 than forty-five days following a request for a hearing under
 
 8 subsection (a).
 
 9      (d)  In a civil or criminal trial for violation of this
 
10 chapter, the trial shall be postponed upon motion of the
 
11 defendant to seek a hearing under section   -7; provided that the
 
12 trial shall be postponed for not more than forty-five days."
 
13      SECTION 2.  This Act shall take effect upon its approval.
 
14 
 
15                       INTRODUCED BY:  ___________________________