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.

747

TWENTY-FIRST LEGISLATURE, 2001

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to abortion.

 

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

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

POST-VIABLE ABORTIONS

§  -1 Definitions. As used in this chapter:

"Abortion" means the intentional interruption of a pregnancy by the application of an external agent, whether chemical or physical, or by the ingestion of a chemical agent with an intention other than to produce a live birth or to remove a dead fetus.

"Physician" means:

(1) A doctor of medicine licensed under chapter 453 or an osteopathic physician licensed under chapter 460; or

(2) A person legally authorized in the State to perform abortions.

"Post-viable abortion" means an abortion subsequent to viability of a fetus.

"Viability" means that stage of fetal development when, in the judgment of the physician based on the particular facts of the case before the physician and in light of the most advanced medical technology and information available to the physician, there is a reasonable likelihood of sustained survival of the unborn child outside the body of the child's mother, with or without artificial support.

§  -2 Applicability. This chapter shall not apply to an abortion that is necessary to save the life or health of a mother whose life is endangered by a physical or mental disorder, illness, or injury.

§  -3 Post-viable abortion prohibited. (a) No physician shall knowingly perform a post-viable abortion that results in the death of a fetus.

(b) No person who is not a physician whether or not legally authorized by the State to perform abortions shall knowingly perform a post-viable abortion that results in the death of a fetus.

§  -4 Determining viability. (a) For purposes of section   -3, viability shall be determined by the pregnant woman's attending physician using due diligence and the best medical judgment.

(b) If a fetus is more than twenty-six weeks, the attending physician shall obtain a second medical opinion on viability from another physician prior to performing an abortion. The second medical opinion shall be in writing and made a part of the pregnant woman's medical record.

§  -5 Penalty. (a) Performing a post-viable abortion is a class C felony.

(b) A woman upon whom a post-viable abortion is performed shall not be prosecuted for conspiracy to violate this chapter.

§  -6 Civil relief. (a) A civil action may be brought for damages against a physician for violation of this chapter. The action shall be brought by:

(1) The father of the fetus, if the father was married to the mother of the fetus at the time of the post-viable abortion; or

(2) The maternal grandparents of the fetus, if the mother of the fetus was under eighteen years of age at the time of the post-viable abortion.

(b) Damages under subsection (a) shall include:

(1) Money damages for injuries, whether psychological or physical, or both; and

(2) Statutory damages equal to three times the cost of the post-viable abortion.

(c) A civil action shall be prohibited if the pregnancy resulted from the plaintiff's criminal conduct or the plaintiff assented to the post-viable abortion.

§  -7 Administrative hearing request. (a) A physician may seek a hearing before the board of medical examiners to determine:

(1) Whether the fetus was viable; and

(2) Whether the abortion was necessary to save the life or health of a mother whose life is endangered by a physical or mental disorder, illness, or injury.

(b) Pursuant to a hearing under subsection (a), the board of medical examiners shall make written findings that shall be admissible in a civil or criminal trial for violation of this chapter.

(c) The hearing and findings shall be completed not later than forty-five days following a request for a hearing under subsection (a).

(d) In a civil or criminal trial for violation of this chapter, the trial shall be postponed upon motion of the defendant to seek a hearing under section   -7; provided that the trial shall be postponed for not more than forty-five days."

SECTION 2. This Act shall take effect upon its approval.

INTRODUCED BY:

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