HB 732 — Abortion; prohibit when heartbeat is detected.

     (6)  Any person performing an abortion on a pregnant woman carrying an unborn human individual whose heartbeat has been detected under the requirements of subsection (3) of this section to preserve the health of the pregnant woman shall set forth in a separate document, under penalty of perjury, the medical condition that the abortion will assertedly address and the medical rationale for the conclusion that the abortion is necessary to address that condition.  The person shall place this written documentation in the pregnant woman's medical records and shall maintain a copy in the person's own records for at least seven (7) years.  This documentation requirement is independent of the provisions in subsection (5) of this section.

     (7)  A pregnant woman on whom an abortion is performed in violation of subsection (3) or (5) of this section is not guilty of violating subsection (3) or (5) of this section or of attempting to commit, conspiring to commit, or complicity in committing a violation of subsection (3) or (5) of this section and is not subject to a penalty based on that violation.

     (8)  Nothing in this section prohibits the sale, use, prescription, or administration of a measure, drug, or chemical designed for contraceptive purposes.

     (9)  If a state or federal court of competent jurisdiction finds that a provision of this section is unconstitutional, the effective date of that provision is tolled until either of the following occur:

          (a)  An appellate court finds that provision to be constitutional.

          (b)  The Attorney General certifies in an opinion to the Governor that, due to a later decision or decisions by the Supreme Court of the United States, it is reasonably probable that the provision would be upheld as constitutional by a court of competent jurisdiction.

     (10)  If a provision of this section is found constitutional by an appellate court or the Attorney General issues an opinion as described in subsection (9)(b) of this section, the provision shall be prospective.

     (11)  If any provisions of this section or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this section that can be given effect without the invalid provision or application, and to this end the provisions of this section are severable.

              (f) (f) Use Use of any false, fraudulent or forged statement or document, or the use of any fraudulent, deceitful, dishonest or immoral practice in connection with any of the licensing requirements, including the signing in his professional capacity any certificate that is known to be false at the time he makes or signs such certificate.

          (16)  Performing an abortion on a pregnant woman beforeafter determining ifthat the unborn human individual that the pregnant woman is carrying has a detectable fetal heartbeat as provided in Section 41-41-34.1.

     SECTION 3.  SectionThis 41-41-151,act Mississippishall Codetake ofeffect 1972,and isbe broughtin forwardforce asfrom follows:and after July 1, 2019.

     41-41-151.  Sections 41-41-151 through 41-41-169 may be cited as the "Mississippi Unborn Child Protection from Dismemberment Abortion Act."      SECTION 4.  Section 41-41-153, Mississippi Code of 1972, is brought forward as follows:

     41-41-153.  For the purposes of Sections 41-41-151 through 41-41-169, the following terms shall be defined as provided in this section:

          (a)  "Abortion" means the use or prescription of any instrument, medicine, drug, or any other substance or device:

              (i)  To purposely kill the unborn child of a woman known to be pregnant;

or               (ii)  To purposely terminate the pregnancy of a woman known to be pregnant, with a purpose other than:

                   1.  After viability to produce a live birth and preserve the life and health of the child born alive;

or                    2.  To remove a dead unborn child.

          (b)  "Attempt to perform an abortion" means to do or omit to do anything that, under the circumstances as the actor believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in oneself performing an abortion.  Such substantial steps include, but are not limited to:

              (i)  Agreeing with an individual to perform an abortion on that individual or on some other person, whether or not the term "abortion" is used in the agreement, and whether or not the agreement is contingent on another factor such as receipt of payment or a determination of pregnancy;

or               (ii)  Scheduling or planning a time to perform an abortion on an individual, whether or not the term "abortion" is used, and whether or not the performance is contingent on another factor such as receipt of payment or a determination of pregnancy.

     This definition shall not be construed to require that an abortion procedure actually must be initiated for an attempt to occur.

          (c)  "Dismemberment abortion" means, with the purpose of causing the death of an unborn child, purposely to dismember a living unborn child and extract him or her one piece at a time from the uterus through use of clamps, grasping forceps, tongs, scissors or similar instruments that, through the convergence of two rigid levers, slice, crush, and/or grasp a portion of the unborn child's body to cut or rip it off.

     The term "dismemberment abortion" does not include an abortion that uses suction to dismember the body of the unborn child by sucking fetal parts into a collection container, although it does include an abortion in which a dismemberment abortion is used to cause the death of an unborn child but suction is subsequently used to extract fetal parts after the death of the unborn child.

          (d)  "Physician" means a person licensed to practice medicine and surgery or osteopathic medicine and surgery, or otherwise legally authorized to perform an abortion.

          (e)  "Purposely" means the following:  A person acts purposely with respect to a material element of an offense when:

              (i)  If the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result;

and               (ii)  If the element involves the attendant circumstances, he is aware of the existence of those circumstances or he believes or hopes that they exist.

          (f)  "Serious health risk to the unborn child's mother" means that in reasonable medical judgment, she has a condition that so complicates her medical condition that it necessitates the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions.  No such condition may be determined to exist if it is based on a claim or diagnosis that the woman will engage in conduct that she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.

          (g)  "Woman" means a female human being whether or not she has reached the age of majority.

     SECTION 5.  Section 41-41-155, Mississippi Code of 1972, is brought forward as follows:

     41-41-155.  (1)  Notwithstanding any other provision of law, it shall be unlawful for any person to purposely perform or attempt to perform a dismemberment abortion and thereby kill an unborn child unless necessary to prevent serious health risk to the unborn child's mother.

     (2)  A person accused in any proceeding of unlawful conduct under subsection (1) of this section may seek a hearing before the State Board of Medical Licensure on whether the dismemberment abortion was necessary to prevent serious health risk to the unborn child's mother.  The board's findings are admissible on that issue at any trial in which the unlawful conduct is alleged.  Upon a motion of the person accused, the court shall delay the beginning of the trial for not more than thirty (30) days to permit such a hearing to take place.

     (3)  No woman upon whom an abortion is performed or attempted to be performed shall be thereby liable for performing or attempting to perform a dismemberment abortion.  No nurse, technician, secretary, receptionist or other employee or agent who is not a physician but who acts at the direction of a physician, and no pharmacist or other individual who is not a physician but who fills a prescription or provides instruments or materials used in an abortion at the direction of or to a physician shall be thereby liable for performing or attempting to perform a dismemberment abortion.

     (4)  Sections 41-41-151 through 41-41-169 does not prevent abortion for any reason, including rape and incest by any other method.

     SECTION 6.  Section 41-41-157, Mississippi Code of 1972, is brought forward as follows:

     41-41-157.  (1)  Civil and criminal penalties for violations of Sections 41-41-151 through 41-41-169 may be imposed under the following priority:

          (a)  Injunctive relief;

          (b)  Civil cause of action;

and           (c)  Criminal action.

     (2)  A cause of action for injunctive relief against a person who has performed or attempted to perform a dismemberment abortion in violation of Section 41-41-155 may be maintained as a priority action by:

          (a)  A woman upon whom such a dismemberment abortion was performed or attempted to be performed;

          (b)  A person who is the spouse, parent or guardian of, or a current or former licensed health care provider of, a woman upon whom such a dismemberment abortion was performed or attempted to be performed;

or           (c)  A prosecuting attorney with appropriate jurisdiction.

     (3)  The injunction shall prevent the defendant from performing or attempting to perform further dismemberment abortions in violation of Section 41-41-155 in this state.

     SECTION 7.  Section 41-41-159, Mississippi Code of 1972, is brought forward as follows:

     41-41-159.  (1)  Only in the event a cause of action for injunctive relief under Section 41-41-157 has been denied by a court of competent jurisdiction, a cause of action for civil damages against a person who has performed a dismemberment abortion in violation of Section 41-41-155 may be maintained by:

          (a)  Any woman upon whom a dismemberment abortion has been performed in violation of Section 41-41-155;

          (b)  The father of the unborn child, if married to the woman at the time the dismemberment abortion was performed;

or           (c)  If the woman had not attained the age of eighteen (18) years at the time of the dismemberment abortion or has died as a result of the abortion, the maternal grandparents of the unborn child.

     (2)  No damages may be awarded a plaintiff if the pregnancy resulted from the plaintiff's criminal conduct.

     (3)  Damages awarded in such an action shall include:

          (a)  Money damages for all injuries, psychological and physical, occasioned by the dismemberment abortion;

and           (b)  Statutory damages equal to three (3) times the cost of the dismemberment abortion.

     SECTION 8.  Section 41-41-161, Mississippi Code of 1972, is brought forward as follows:

     41-41-161.  (1)  If judgment is rendered in favor of the plaintiff in an action described in Section 41-41-157 or 41-41-159, the court shall also render judgment for a reasonable attorney's fee in favor of the plaintiff against the defendant.

     (2)  If judgment is rendered in favor of the defendant in an action described in Section 41-41-157 or 41-41-159 and the court finds that the plaintiff's suit was frivolous and brought in bad faith, the court shall render judgment for a reasonable attorney's fee in favor of the defendant against the plaintiff.

     (3)  No attorney's fee may be assessed against the woman upon whom a dismemberment abortion was performed or attempted to be performed except in accordance with subsection (2) of this section.

     SECTION 9.  Section 41-41-163, Mississippi Code of 1972, is brought forward as follows:

     41-41-163.  Only in the event a judgment is rendered in favor of the defendant in an action described in Section 41-41-157 or 41-41-159, a district attorney with jurisdiction may bring an indictment for criminal punishment under this section.  Any person who violates Section 41-41-155 is guilty of a felony and, upon conviction, shall be punished by a fine not more than Ten Thousand Dollars ($10,000.00), or commitment to the custody of the Department of Corrections for not more than two (2) years, or both.

     SECTION 10.  Section 41-41-165, Mississippi Code of 1972, is brought forward as follows:

     41-41-165.  In every civil, criminal, or administrative proceeding or action brought under Sections 41-41-151 through 41-41-169, the court shall rule whether the anonymity of any woman upon whom a dismemberment abortion has been performed or attempted to be performed shall be preserved from public disclosure if she does not give her consent to the disclosure.  The court, upon motion or sua sponte, shall make such a ruling and, upon determining that her anonymity should be preserved, shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity from public disclosure.  Each such order shall be accompanied by specific written findings explaining why the anonymity of the woman should be preserved from public disclosure, why the order is essential to that end, how the order is narrowly tailored to serve that interest, and why no reasonable less restrictive alternative exists.  In the absence of written consent of the woman upon whom a dismemberment abortion has been performed or attempted to be performed, anyone other than a public official who brings an action under Section 41-41-157 or 41-41-159 shall do so under a pseudonym.  This section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant or from attorneys for the defendant.

     SECTION 11.  Section 41-41-167, Mississippi Code of 1972, is brought forward as follows:

     41-41-167.  Nothing in Sections 41-41-151 through 41-41-169 shall be construed as creating or recognizing a right to abortion, nor a right to a particular method of abortion.

     SECTION 12.  Section 41-41-169, Mississippi Code of 1972, is brought forward as follows:

     41-41-169.  If any one or more provisions, sections, subsections, sentences, clauses, phrases or words of Sections 41-41-151 through 41-41-169 or the application thereof to any person or circumstance is found to be unconstitutional, the same is declared to be severable and the balance of Sections 41-41-151 through 41-41-169 shall remain effective notwithstanding such unconstitutionality.  The Legislature declares that it would have passed Sections 41-41-151 through 41-41-169, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one or more provisions, sections, subsections, sentences, clauses, phrases or words be declared unconstitutional.

     SECTION 13.  This act shall take effect and be in force from and after July 1, 2019.