First Regular Session

Sixty-first General Assembly

LLS NO. 97­0320.01 JBB HOUSE BILL 97­1150

STATE OF COLORADO

BY REPRESENTATIVES Lamborn, May, Arrington, Dean, Epps, Musgrave, and Paschall;

also SENATORS Tebedo, Arnold, Coffman, and Congrove.

STATE, VETERANS &

MILITARY AFFAIRS

A BILL FOR AN ACT

CONCERNING THE REGULATION OF POST­VIABILITY ABORTIONS.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments which may be subsequently adopted.)

Requires physicians prior to performing abortions to certify in writing whether the fetus is viable. If the fetus is viable, requires:

!  The attending physician to certify in writing that the procedure is necessary to prevent a substantial impairment of the life or physical health of the pregnant woman; and

!  A second physician to be present during the procedure who will take control of and provide immediate medical care if the infant is born alive.

If the fetus is viable and unless the health of the woman would be endangered, also requires:

!  The procedure be performed in a hospital with premature birth intensive care units; and

!  Both physicians take all reasonable steps in keeping with good medical practice to preserve the life and health of the viable unborn infant.

States that a fetus born alive shall be treated as a person under the law and that a certificate of birth be filed. Also requires a death certificate to be filed if the infant later dies.

States that responsible persons who do not take all reasonable steps consistent with good medical practice to preserve the life of the live born infant shall be subject to the laws of Colorado governing murder, manslaughter, wrongful death, and medical malpractice.

Allows the pregnant woman and her husband, if married, to attest in writing that, if the child is born alive, they do not wish to keep the child and that the county department of social services shall have temporary custody of the child, if born alive.

States that a person who violates the statutory section, in addition to any other crime, commits criminal post­viability abortion and defines that crime as a class 1 misdemeanor.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  Part 1 of article 6 of title 18, Colorado Revised Statutes, 1986 Repl. Vol., as amended, is amended BY THE ADDITION OF A NEW SECTION to read:

18­6­102.5.  Justified medical termination of pregnancies after viability. (1)  FOR PURPOSES OF THIS SECTION:

(a)  "ABORTION" MEANS THE USE OF ANY MEANS TO TERMINATE THE CLINICALLY DIAGNOSABLE PREGNANCY OF A WOMAN WITH KNOWLEDGE THAT TERMINATION BY THOSE MEANS WILL, WITH REASONABLE LIKELIHOOD, CAUSE THE DEATH OF THE FETUS; EXCEPT THAT ABORTION SHALL NOT MEAN THE USE OF ANY DEVICE OR AGENT TO PREVENT PREGNANCY.

(b)  "VIABILITY" MEANS THAT STAGE OF FETAL DEVELOPMENT WHEN, IN THE JUDGMENT OF THE PHYSICIAN BASED ON THE PARTICULAR FACTS OF THE CASE BEFORE HIM OR HER AND IN LIGHT OF THE MOST ADVANCED MEDICAL TECHNOLOGY AND INFORMATION AVAILABLE TO HIM OR HER, THERE IS A REASONABLE LIKELIHOOD OF SUSTAINED SURVIVAL OF THE FETUS OUTSIDE THE BODY OF HIS OR HER MOTHER, WITH OR WITHOUT ARTIFICIAL SUPPORT.

(2)  PRIOR TO CONDUCTING ANY ABORTION, THE ATTENDING PHYSICIAN SHALL DETERMINE WHETHER THE FETUS IS VIABLE AND CERTIFY THAT DETERMINATION AS PART OF THE WRITTEN REPORTS REQUIRED OF THE ATTENDING PHYSICIAN OR THE FACILITY IN WHICH THE PROCEDURE IS PERFORMED.

(3)  IF THE ATTENDING PHYSICIAN DETERMINES THAT THE FETUS IS VIABLE, NO ABORTION OF THE FETUS SHALL BE ALLOWED UNLESS ALL OF THE FOLLOWING CONDITIONS ARE SATISFIED:

(a)  PRIOR TO PERFORMING ANY ABORTION, THE ATTENDING PHYSICIAN SHALL CERTIFY IN WRITING TO THE HOSPITAL IN WHICH THE PROCEDURE IS TO BE PERFORMED THAT, IN THE ATTENDING PHYSICIAN'S PROFESSIONAL MEDICAL JUDGMENT AND AFTER PROPER EXAMINATION AND REVIEW OF THE WOMAN'S MEDICAL HISTORY, THE ABORTION IS NECESSARY TO PREVENT EITHER THE DEATH OF THE WOMAN OR THE SUBSTANTIAL AND IRREVERSIBLE IMPAIRMENT OF A MAJOR BODILY FUNCTION OF THE WOMAN, AND ALL FACTS AND REASONS SUPPORTING SUCH CERTIFICATION SHALL BE SET FORTH BY THE PHYSICIAN IN WRITING AND ATTACHED TO THE CERTIFICATE.

(b)  NO ABORTION SHALL BE PERFORMED IN A FACILITY THAT DOES NOT HAVE PREMATURE BIRTH INTENSIVE CARE UNITS, UNLESS COMPLIANCE WITH THIS REQUIREMENT WOULD RESULT IN AN INCREASED RISK OF EITHER THE DEATH OF THE WOMAN OR THE SUBSTANTIAL AND IRREVERSIBLE IMPAIRMENT OF A MAJOR BODILY FUNCTION OF THE WOMAN.

(c)  DURING THE ABORTION, THERE SHALL BE IN ATTENDANCE A PHYSICIAN, OTHER THAN THE PHYSICIAN PERFORMING THE PROCEDURE, WHO SHALL TAKE CONTROL OF AND PROVIDE IMMEDIATE CARE FOR AN INFANT BORN ALIVE AS A RESULT OF THE PROCEDURE.

(d)  DURING THE ABORTION, THE PHYSICIAN PERFORMING THE PROCEDURE AND, AFTER THE PROCEDURE, THE PHYSICIAN REQUIRED BY PARAGRAPH (c) OF THIS SUBSECTION (3) TO BE IN ATTENDANCE SHALL TAKE ALL REASONABLE STEPS, INCLUDING THE TYPE OF PROCEDURE USED, IN KEEPING WITH GOOD MEDICAL PRACTICE CONSISTENT WITH THE PROCEDURE USED, TO PRESERVE THE LIFE AND HEALTH OF THE VIABLE UNBORN INFANT, UNLESS COMPLIANCE WOULD RESULT IN AN INCREASED RISK OF EITHER THE DEATH OF THE WOMAN OR THE SUBSTANTIAL AND IRREVERSIBLE IMPAIRMENT OF A MAJOR BODILY FUNCTION OF THE WOMAN.

(4)  ANY FETUS BORN ALIVE SHALL BE TREATED AS A PERSON UNDER THE LAW, AND A CERTIFICATE OF BIRTH SHALL BE FILED AS REQUIRED BY SECTION 25­2­112, C.R.S., CERTIFYING THE INFANT'S BIRTH. IF THE INFANT SUBSEQUENTLY DIES, A CERTIFICATE OF DEATH SHALL BE FILED AS REQUIRED BY SECTION 25­2­110, C.R.S.

(5)  FAILURE TO TAKE ALL REASONABLE STEPS, IN KEEPING WITH GOOD MEDICAL PRACTICE, TO PRESERVE THE HEALTH OF THE LIVE BORN INFANT SHALL SUBJECT THE RESPONSIBLE PERSONS TO COLORADO LAWS GOVERNING MURDER AND MANSLAUGHTER AND CIVIL LIABILITY FOR WRONGFUL DEATH AND MEDICAL MALPRACTICE.

(6)  IF, BEFORE THE ABORTION, THE WOMAN AND HER HUSBAND, IF MARRIED, HAVE STATED IN WRITING THAT THEY DO NOT WISH TO KEEP THE INFANT IN THE EVENT THAT THE PROCEDURE RESULTS IN A LIVE BIRTH, AND THIS WRITING IS NOT RETRACTED BEFORE THE PROCEDURE, THE COUNTY DEPARTMENT OF SOCIAL SERVICES IN THE COUNTY OR CITY AND COUNTY IN WHICH THE PROCEDURE WAS PERFORMED SHALL TAKE TEMPORARY CUSTODY OF THE INFANT, IF BORN ALIVE.

(7) (a)  IN ADDITION TO ANY OTHER CRIME, ANY PERSON WHO VIOLATES A PROVISION OF THIS SECTION COMMITS CRIMINAL POST­VIABILITY ABORTION. CRIMINAL POST­VIABILITY ABORTION SHALL BE A CLASS 1 MISDEMEANOR; EXCEPT THAT, IN ADDITION TO ANY OTHER PENALTY PROVIDED BY SECTION 18­1­106, FOR A FIRST OFFENSE A PERSON SHALL BE SENTENCED TO A THIRTY­DAY MANDATORY MINIMUM JAIL SENTENCE AND FOR A SECOND OR SUBSEQUENT OFFENSE A PERSON SHALL BE SENTENCED TO A NINETY­DAY MANDATORY MINIMUM JAIL SENTENCE.

(b)  ANY PERSON WHO VIOLATES SUBSECTION (3) OF THIS SECTION MAY ALSO HAVE COMMITTED MURDER OR MANSLAUGHTER, AS THOSE CRIMES ARE DEFINED IN PART 1 OF ARTICLE 3 OF THIS TITLE, AND MAY BE PUNISHED ACCORDINGLY.

SECTION 2.  Effective date ­ applicability. This act shall take effect July 1, 1997, and shall apply to offenses committed on or after said date.

SECTION 3.  Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.