First Regular Session
Sixty-second General Assembly
LLS NO. 99-0344.02 Jerry Barry SENATE BILL 99-080
STATE OF COLORADO
BY SENATOR Lamborn
STATE, VETERANS, & MILITARY AFFAIRS
A BILL FOR AN ACT
101 CONCERNING THE REGULATION OF POST-VIABILITY ABORTIONS.
Bill Summary
(Note: This summary applies to this bill as introduced and does
not necessarily reflect any amendments that may be subsequently
adopted.)
Refers to a vote of the people an act to regulate abortions
performed after the fetus is viable.
Prior to performing an abortion after the first 19 weeks of
pregnancy, requires a physician to certify in writing whether the fetus is
viable unless the delay in making such certification would result in an
increased risk of death or impairment of a major bodily function of the
pregnant woman. 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 a premature
birth intensive care unit; 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. 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
[ ] denotes HOUSE amendment. { } denotes SENATE amendment.
Capital letters indicate new material to be added to existing statute.
Dashes through the words indicate material to be deleted from existing statute.
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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 state
in writing that, if the child is born alive, they do not wish to keep the
child, provides that the county department of social services shall have
temporary custody of the child.
States that a person who violates the statutory section, in addition
to any other crime, commits criminal post-viability abortion and defines
that crime as a class 1 misdemeanor. Requires a 30-day mandatory
minimum jail sentence for a first offense and a 90-day mandatory
minimum jail sentence for second or subsequent offenses. Establishes
that the pregnant woman may not be prosecuted for complicity or
conspiracy to commit criminal post-viability abortion.
1 Be it enacted by the General Assembly of the State of Colorado:
2 SECTION 1. Part 1 of article 6 of title 18, Colorado Revised
3 Statutes, is amended BY THE ADDITION OF A NEW SECTION to
4 read:
5 18-6-102.5. Justified medical termination of pregnancies after
6 viability. (1) THIS SECTION SHALL BE KNOWN AND MAY BE CITED AS THE
7 "VIABLE CHILD PROTECTION ACT".
8 (2) FOR PURPOSES OF THIS SECTION:
9 (a) "ABORTION" MEANS THE USE OF ANY MEANS TO TERMINATE THE
10 CLINICALLY DIAGNOSABLE PREGNANCY OF A WOMAN WITH KNOWLEDGE
11 THAT TERMINATION BY THOSE MEANS WILL, WITH REASONABLE
12 LIKELIHOOD, CAUSE THE DEATH OF THE FETUS; EXCEPT THAT "ABORTION"
13 DOES NOT MEAN THE USE OF ANY DEVICE OR AGENT TO PREVENT
14 PREGNANCY.
15 (b) "VIABILITY" MEANS THAT STAGE OF FETAL DEVELOPMENT
16 WHEN, IN THE JUDGMENT OF THE PHYSICIAN BASED ON THE PARTICULAR
17 FACTS OF THE CASE BEFORE HIM OR HER AND IN LIGHT OF THE MOST
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1 ADVANCED MEDICAL TECHNOLOGY AND INFORMATION AVAILABLE TO HIM
2 OR HER, THERE IS A REASONABLE LIKELIHOOD OF SUSTAINED SURVIVAL OF
3 THE FETUS OUTSIDE THE BODY OF HIS OR HER MOTHER, WITH OR WITHOUT
4 ARTIFICIAL SUPPORT.
5 (3) PRIOR TO PERFORMING AN ABORTION UPON A WOMAN
6 SUBSEQUENT TO HER FIRST NINETEEN WEEKS OF PREGNANCY, THE
7 ATTENDING PHYSICIAN SHALL DETERMINE WHETHER, IN HIS OR HER GOOD
8 FAITH MEDICAL JUDGMENT, THE FETUS IS VIABLE AND CERTIFY THAT
9 DETERMINATION AS PART OF THE WRITTEN REPORTS REQUIRED OF THE
10 ATTENDING PHYSICIAN OR THE FACILITY IN WHICH THE PROCEDURE IS
11 PERFORMED, UNLESS COMPLIANCE WITH THIS REQUIREMENT WOULD
12 RESULT IN AN INCREASED RISK OF EITHER THE DEATH OF THE WOMAN OR
13 THE SUBSTANTIAL AND IRREVERSIBLE IMPAIRMENT OF A MAJOR BODILY
14 FUNCTION OF THE WOMAN.
15 (4) IF THE ATTENDING PHYSICIAN DETERMINES THAT THE FETUS IS
16 VIABLE, NO ABORTION OF THE FETUS SHALL BE ALLOWED UNLESS ALL OF
17 THE FOLLOWING CONDITIONS ARE SATISFIED:
18 (a) PRIOR TO PERFORMING ANY ABORTION, THE ATTENDING
19 PHYSICIAN SHALL CERTIFY IN WRITING TO THE HOSPITAL IN WHICH THE
20 PROCEDURE IS TO BE PERFORMED THAT, IN THE ATTENDING PHYSICIAN'S
21 GOOD FAITH MEDICAL JUDGMENT AND AFTER PROPER EXAMINATION AND
22 REVIEW OF THE WOMAN'S MEDICAL HISTORY, THE ABORTION IS NECESSARY
23 TO PREVENT EITHER THE DEATH OF THE WOMAN OR THE SUBSTANTIAL AND
24 IRREVERSIBLE IMPAIRMENT OF A MAJOR BODILY FUNCTION OF THE WOMAN,
25 AND ALL FACTS AND REASONS SUPPORTING SUCH CERTIFICATION SHALL BE
26 SET FORTH BY THE PHYSICIAN IN WRITING AND ATTACHED TO THE
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1 CERTIFICATE.
2 (b) NO ABORTION SHALL BE PERFORMED IN A FACILITY THAT DOES
3 NOT HAVE A PREMATURE BIRTH INTENSIVE CARE UNIT, UNLESS
4 COMPLIANCE WITH THIS REQUIREMENT WOULD RESULT IN AN INCREASED
5 RISK OF EITHER THE DEATH OF THE WOMAN OR THE SUBSTANTIAL AND
6 IRREVERSIBLE IMPAIRMENT OF A MAJOR BODILY FUNCTION OF THE WOMAN.
7 (c) DURING THE ABORTION, THERE SHALL BE IN ATTENDANCE A
8 PHYSICIAN, OTHER THAN THE PHYSICIAN PERFORMING THE PROCEDURE,
9 WHO SHALL TAKE CONTROL OF AND PROVIDE IMMEDIATE CARE FOR AN
10 INFANT BORN ALIVE AS A RESULT OF THE PROCEDURE.
11 (d) PRIOR TO AND DURING THE ABORTION, THE PHYSICIAN
12 PERFORMING THE PROCEDURE AND, AFTER THE PROCEDURE, THE
13 PHYSICIAN REQUIRED BY PARAGRAPH (c) OF THIS SUBSECTION (3) TO BE IN
14 ATTENDANCE SHALL TAKE ALL REASONABLE STEPS, INCLUDING THE TYPE
15 OF PROCEDURE USED, IN KEEPING WITH GOOD MEDICAL PRACTICE
16 CONSISTENT WITH THE PROCEDURE USED, TO PRESERVE THE LIFE AND
17 HEALTH OF THE VIABLE UNBORN INFANT, UNLESS COMPLIANCE WOULD
18 RESULT IN AN INCREASED RISK OF EITHER THE DEATH OF THE WOMAN OR
19 THE SUBSTANTIAL AND IRREVERSIBLE IMPAIRMENT OF A MAJOR BODILY
20 FUNCTION OF THE WOMAN.
21 (5) ANY FETUS BORN ALIVE SHALL BE TREATED AS A PERSON
22 UNDER THE LAW, AND A CERTIFICATE OF BIRTH SHALL BE FILED AS
23 REQUIRED BY SECTION 25-2-112, C.R.S., CERTIFYING THE INFANT'S BIRTH.
24 IF THE INFANT SUBSEQUENTLY DIES, A CERTIFICATE OF DEATH SHALL BE
25 FILED AS REQUIRED BY SECTION 25-2-110, C.R.S.
26 (6) FAILURE TO TAKE ALL REASONABLE STEPS, IN KEEPING WITH
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1 GOOD MEDICAL PRACTICE, TO PRESERVE THE HEALTH OF THE LIVE BORN
2 INFANT SHALL SUBJECT THE RESPONSIBLE PERSONS TO COLORADO LAWS
3 GOVERNING MURDER AND MANSLAUGHTER AND CIVIL LIABILITY FOR
4 WRONGFUL DEATH AND MEDICAL MALPRACTICE.
5 (7) IF, BEFORE THE ABORTION, THE WOMAN AND HER HUSBAND, IF
6 MARRIED, HAVE STATED IN WRITING THAT THEY DO NOT WISH TO KEEP THE
7 INFANT IN THE EVENT THAT THE PROCEDURE RESULTS IN A LIVE BIRTH, AND
8 THIS WRITING IS NOT RETRACTED BEFORE THE PROCEDURE, THE COUNTY
9 DEPARTMENT OF SOCIAL SERVICES IN THE COUNTY OR CITY AND COUNTY
10 IN WHICH THE PROCEDURE WAS PERFORMED SHALL TAKE TEMPORARY
11 CUSTODY OF THE INFANT.
12 (8) (a) IN ADDITION TO ANY OTHER CRIME, ANY PERSON WHO
13 VIOLATES A PROVISION OF THIS SECTION COMMITS CRIMINAL
14 POST-VIABILITY ABORTION. CRIMINAL POST-VIABILITY ABORTION IS A
15 CLASS 1 MISDEMEANOR; EXCEPT THAT, IN ADDITION TO ANY OTHER
16 PENALTY PROVIDED BY SECTION 18-1-106, FOR A FIRST OFFENSE A PERSON
17 SHALL BE SENTENCED TO A THIRTY-DAY MANDATORY MINIMUM JAIL
18 SENTENCE AND FOR A SECOND OR SUBSEQUENT OFFENSE A PERSON SHALL
19 BE SENTENCED TO A NINETY-DAY MANDATORY MINIMUM JAIL SENTENCE.
20 (b) ANY PERSON WHO VIOLATES SUBSECTION (4) OF THIS SECTION
21 MAY BE CHARGED WITH MURDER OR MANSLAUGHTER, AS THOSE CRIMES
22 ARE DEFINED IN PART 1 OF ARTICLE 3 OF THIS TITLE, AND UPON
23 CONVICTION MAY BE PUNISHED ACCORDINGLY.
24 (c) THE PREGNANT WOMAN SHALL NOT BE PROSECUTED UNDER
25 THIS SECTION FOR CONSPIRACY PURSUANT TO SECTION 18-2-201 OR
26 COMPLICITY UNDER SECTION 18-1-603.
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1 SECTION 2. Effective date - applicability. If approved by the
2 voters pursuant to section 3 of this act, this act shall take effect February
3 1, 2001, and shall apply to procedures performed and offenses committed
4 on or after said date.
5 SECTION 3. Refer to people under referendum. This act shall
6 be submitted to a vote of the registered electors of the state of Colorado
7 at the next biennial regular general election, for their approval or
8 rejection, under the provisions of the referendum as provided for in
9 section 1 of article V of the state constitution, and in article 40 of title 1,
10 Colorado Revised Statutes. Each elector voting at said election and
11 desirous of voting for or against said act shall cast a vote as provided by
12 law either "Yes" or "No" on the proposition: "SHALL THERE BE AN
13 AMENDMENT TO THE COLORADO REVISED STATUTES CONCERNING THE
14 REGULATION OF POST-VIABILITY ABORTIONS, AND, IN CONNECTION
15 THEREWITH, FOR ABORTIONS PERFORMED AFTER NINETEEN WEEKS OF
16 PREGNANCY, REQUIRING THE PHYSICIAN TO CERTIFY WHETHER THE FETUS
17 IS VIABLE AND, IF VIABLE, THAT THE ABORTION IS NECESSARY TO PREVENT
18 THE DEATH OR PHYSICAL IMPAIRMENT OF THE WOMAN; REQUIRING THE
19 PROCEDURE TO BE PERFORMED UNDER SPECIFIED CONDITIONS;
20 ESTABLISHING THAT IT IS A CLASS 1 MISDEMEANOR IF THE CONDITIONS ARE
21 VIOLATED; AND ESTABLISHING PROCEDURES IF THE FETUS IS BORN ALIVE?"
22 The votes cast for the adoption or rejection of said act shall be canvassed
23 and the result determined in the manner provided by law for the
24 canvassing of votes for representatives of Congress.