23.0137.05000
Sixty-eighth
Legislative Assembly SENATE BILL NO. 2150
of North Dakota
Introduced by
Senators Myrdal, Boehm, Luick
Representatives Porter, Rohr, M. Ruby
1 A BILL for an Act to amend and reenact sections 12.1-31-12, 14-02.1-02, 14-02.1-02.1,
2 14-02.1-02.2, 14-02.1-03, 14-02.1-03.1, 14-02.1-04, and 14-02.1-07, and subsection 1 of
3 section 43-17-31 of the North Dakota Century Code, relating to abortion and grounds for
4 disciplinary action imposed against a physician; to repeal sections 14-02.1-04.1, 14-02.1-04.2,
5 14-02.1-05.1, 14-02.1-05.2, and 14-02.1-05.3 of the North Dakota Century Code, relating to
6 sex-selective abortions, genetic abnormality abortions, human dismemberment abortions, and
7 abortions after a detectable heartbeat; to provide a penalty; and to declare an emergency.
8 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
9 SECTION 1. AMENDMENT. Section 12.1-31-12 of the North Dakota Century Code is
10 amended and reenacted as follows:
11 12.1-31-12. Abortion - Affirmative defensesExceptions.
12 1. As used in this section:
13 a. "Abortion" means the use or prescription of any substance, device, instrument,
14 medicine, or drug to intentionally terminate the pregnancy of an individual known
15 to be pregnant. The term does not include an act made with the intent to increase
16 the probability of a live birth; preserve the life or health of a child after live birth; or
17 remove a dead, unborn child who died as a result of a spontaneous miscarriage,
18 an accidental trauma, or a criminal assault upon the pregnant female or her
19 unborn childact of using or prescribing any instrument, medicine, drug, or any
20 other substance, device, or means with the intent to terminate the clinically
21 diagnosable pregnancy of a woman, including the elimination of one or more
22 unborn children in a multifetal pregnancy, with knowledge the termination by
23 those means will with reasonable likelihood cause the death of the unborn child.
24 Such use, prescription, or means is not an abortion if done with the intent to:
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1 (1) Save the life or preserve the health of the unborn child;
2 (2) Remove a dead unborn child caused by spontaneous abortion; or
3 (3) Treat a woman for an ectopic pregnancy.
4 b. "Medical emergency" means a condition that, in reasonable medical judgment, so
5 complicates the medical condition of the pregnant woman that it necessitates an
6 immediate abortion to prevent her death or substantial and irreversible physical
7 impairment of a major bodily function, not including any psychological or
8 emotional condition. A condition may not be deemed a medical emergency if
9 based on a claim or diagnosis that the woman will engage in conduct that she
10 intends to result in her death or in substantial and irreversible physical
11 impairment of a major bodily function.
12 c. "Physician" means an individual licensed to practice medicine or osteopathy
13 under chapter 43-17 or a physician who practices in the armed services of the
14 United States or in the employ of the United States.
15 c. "Professional
16 d. "Reasonable medical judgment" means a medical judgment that would be made
17 by a reasonably prudent physician who is knowledgeable about the case and the
18 treatment possibilities with respect to the medical conditions involved.
19 2. It is a class C felony for a person, other than the pregnant female upon whom the
20 abortion was performed, to perform an abortion.
21 3. The following are affirmative defenses under thisThis section does not apply to:
22 a. That theAn abortion wasdeemed necessary in professionalbased on reasonable
23 medical judgment andwhich was intended to prevent the death of the pregnant
24 female.
25 b. That theAn abortion was to terminate a pregnancy that resulted from gross
26 sexual imposition, sexual imposition, sexual abuse of a ward, or incest, as those
27 offenses are defined in chapter 12.1-20, if the probable postfertilization age of the
28 unborn child is six weeks or less.
29 c. That theAn individual assisting in performing an abortion if the individual was
30 acting within the scope of that individual's regulated profession and, was under
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1 the direction of or at the direction of a physician, and did not know the physician
2 was performing an abortion in violation of this section.
3 d. An abortion necessary due to a medical emergency.
4 SECTION 2. AMENDMENT. Section 14-02.1-02 of the North Dakota Century Code is
5 amended and reenacted as follows:
6 14-02.1-02. Definitions.
7 As used in this chapter:
8 1. "Abortion" means the act of using or prescribing any instrument, medicine, drug, or
9 any other substance, device, or means with the intent to terminate the clinically
10 diagnosable intrauterine pregnancy of a woman, including the elimination of one or
11 more unborn children in a multifetal pregnancy, with knowledge that the termination by
12 those means will with reasonable likelihood cause the death of the unborn child. Such
13 use, prescription, or means is not an abortion if done with the intent to:
14 a. Save the life or preserve the health of the unborn child;
15 b. Remove a dead unborn child caused by spontaneous abortion; or
16 c. Treat a woman for an ectopic pregnancy.
17 2. "Abortion facility" means a clinic, ambulatory surgical center, physician's office, or any
18 other place or facility in which abortions are performed or prescribed, other than a
19 hospital.
20 3. "Abortion-inducing drug" means a medicine, drug, or any other substance prescribed
21 or dispensed with the intent of causing an abortion.
22 4. "Down syndrome" refers to a chromosome disorder associated with an extra
23 chromosome twenty-one, in whole or in part, or an effective trisomy for chromosome
24 twenty-one.
25 5. "Drug label" means the pamphlet accompanying an abortion-inducing drug which
26 outlines the protocol tested and authorized by the federal food and drug administration
27 and agreed upon by the drug company applying for the federal food and drug
28 administration authorization of that drug. Also known as "final printing labeling
29 instructions", drug label is the federal food and drug administration document that
30 delineates how a drug is to be used according to the federal food and drug
31 administration approval.
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1 6.5. "Fertilization" means the fusion of a human spermatozoon with a human ovum.
2 7. "Genetic abnormality" means any defect, disease, or disorder that is inherited
3 genetically. The term includes any physical disfigurement, scoliosis, dwarfism, Down
4 syndrome, albinism, amelia, or any other type of physical or mental disability,
5 abnormality, or disease.
6 8.6. "Hospital" means an institution licensed by the department of health and human
7 services under chapter 23-16 and any hospital operated by the United States or this
8 state.
9 9.7. "Human being" means an individual living member of the species of homo sapiens,
10 including the unborn human being during the entire embryonic and fetal ages from
11 fertilization to full gestation.
12 10.8. "Infant born alive" means a born child which exhibits either heartbeat, spontaneous
13 respiratory activity, spontaneous movement of voluntary muscles or pulsation of the
14 umbilical cord if still attached to the child.
15 11.9. "Informed consent" means voluntary consent to abortion by the woman upon whom
16 the abortion is to be performed or induced provided:
17 a. The woman is told the following by the physician who is to perform the abortion,
18 by the referring physician, or by the physician's agent, at least twenty-four hours
19 before the abortion:
20 (1) The name of the physician who will perform the abortion;
21 (2) The abortion will terminate the life of a whole, separate, unique, living
22 human being;
23 (3) The particular medical risks associated with the particular abortion
24 procedure to be employed including, when medically accurate, the risks of
25 infection, hemorrhage, danger to subsequent pregnancies, and infertility;
26 (4) The probable gestationalpostfertilization age of the unborn child at the time
27 the abortion is to be performed; and
28 (5) The medical risks associated with carrying her child to term.
29 b. The woman is informed, by the physician or the physician's agent, at least
30 twenty-four hours before the abortion:
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1 (1) That medical assistance benefits may be available for prenatal care,
2 childbirth, and neonatal care and that more detailed information on the
3 availability of that assistance is contained in the printed materials given to
4 her as described in section 14-02.1-02.1;
5 (2) That the printed materials given to her and described in section
6 14-02.1-02.1 describe the unborn child and list agencies that offer
7 alternatives to abortion;
8 (3) That the father is liable to assist in the support of her child, even in
9 instances in which the father has offered to pay for the abortion;
10 (4) That she is free to withhold or withdraw her consent to the abortion at any
11 time without affecting her right to future care or treatment and without the
12 loss of any state or federally funded benefits to which she might otherwise
13 be entitled; and
14 (5) That it may be possible to reverse the effects of an abortion-inducing drug if
15 she changes her mind, but time is of the essence, and information and
16 assistance with reversing the effects of an abortion-inducing drug are
17 available in the printed materials given to her as described in section
18 14-02.1-02.1.
19 c. The woman certifies in writing, prior tobefore the abortion, that the information
20 described in subdivisions a and b has been furnished to her.
21 d. Before the performance of the abortion, the physician who is to perform or induce
22 the abortion or the physician's agent receives a copy of the written certification
23 prescribed by subdivision c.
24 e. The physician has not received or obtained payment for a service provided to a
25 patient who has inquired about an abortion or has scheduled an abortion before
26 the twenty-four-hour period required by this section.
27 12.10. "Medical emergency" means a condition that, in reasonable medical judgment, so
28 complicates the medical condition of the pregnant woman that it necessitates an
29 immediate abortion of her pregnancy without first determining postfertilization age to
30 avertprevent her death or for which the delay necessary to determine postfertilization
31 age will create serious risk of substantial and irreversible physical impairment of a
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1 major bodily function, not including psychological or emotional conditions. A condition
2 may not be deemed a medical emergency if based on a claim or diagnosis that the
3 woman will engage in conduct that she intends to result in her death or in substantial
4 and irreversible physical impairment of a major bodily function.
5 13.11. "Physician" means an individual who is licensed to practice medicine or osteopathy
6 under chapter 43-17 or a physician who practices in the armed services of the United
7 States or in the employ of the United States.
8 14.12. "Postfertilization age" means the age of the unborn child as calculated from
9 fertilization.
10 15. "Probable gestational age of the unborn child" means what, in reasonable medical
11 judgment, will with reasonable probability be the gestational age of the unborn child at
12 the time the abortion is planned to be performed.
13 16.13. "Probable postfertilization age of the unborn child" means what, in reasonable medical
14 judgment, will with reasonable probability be the postfertilization age of the unborn
15 child at the time the abortion is planned to be performed or induced.
16 17.14. "Reasonable medical judgment" means a medical judgment that would be made by a
17 reasonably prudent physician, knowledgeable about the case and the treatment
18 possibilities with respect to the medical conditions involved.
19 18.15. "Unborn child" means the offspring of human beings from conception until birth.
20 19.16. "Viable" means the ability of an unborn child to live outside the mother's womb, albeit
21 with artificial aid.
22 SECTION 3. AMENDMENT. Section 14-02.1-02.1 of the North Dakota Century Code is
23 amended and reenacted as follows:
24 14-02.1-02.1. Printed information - Referral service.
25 1. The department of health and human services shall publish in English, and in every
26 other language that the department determines is the primary language of a significant
27 number of state residents, the following easily comprehensible printed materials:
28 a. Geographically indexed materials designed to inform the woman of public and
29 private agencies and services available to assist a woman through pregnancy,
30 upon childbirth, and while the child is dependent, including adoption agencies.
31 The materials must include a comprehensive list of the agencies available, a
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1 description of the services they offer and a description of the manner, including
2 telephone numbers, in which they might be contacted, or, at the option of the
3 department, printed materials, including a toll-free, twenty-four-hour-a-day
4 telephone number that may be called to obtain, orally, such a list and description
5 of agencies in the locality of the caller and of the services they offer. The
6 materials must state that it is unlawful for any individual to coerce a woman to
7 undergo an abortion and that if a minor is denied financial support by the minor's
8 parent, guardian, or custodian due to the minor's refusal to have an abortion
9 performed, the minor is deemed to be emancipated for the purposes of eligibility
10 for public assistance benefits, except that those benefits may not be used to
11 obtain an abortion. The materials also must state that any physician who
12 performs an abortion upon a woman without her informed consent may be liable
13 to her for damages in a civil action and that the law permits adoptive parents to
14 pay costs of prenatal care, childbirth, and neonatal care. The materials must
15 include the following statement: There are many public and private agencies
16 willing and able to help you to carry your child to term and to assist you and your
17 child after your child is born, whether you choose to keep your child or to place
18 your child for adoption. The state of North Dakota strongly urges you to contact
19 one or more of these agencies before making a final decision about abortion. The
20 law requires that your physician or your physician's agent give you the
21 opportunity to call agencies like these before you undergo an abortion.
22 b. Materials, published in a booklet format, designed to inform the woman of the
23 probable anatomical and physiological characteristics of the unborn child at
24 two-week gestational increments from the time when a woman can be known to
25 be pregnant to full term, including any relevant information on the possibility of
26 the survival of the unborn child and color photograp