2022 -- S 2625
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LC004613
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S TATE OF RHODE IS L A N D
IN GENERAL ASSEMBLY
JANUARY SESSION, A.D. 2022
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A N A CT
RELATING TO HEALTH AND SAFETY -- RHODE ISLAND PAIN-CAPABLE UNBORN
CHILD PROTECTION ACT
Introduced By: Senator Jessica de la Cruz
Date Introduced: March 10, 2022
Referred To: Senate Judiciary
It is enacted by the General Assembly as follows:
1 SECTION 1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby
2 amended by adding thereto the following chapter:
3 CHAPTER 97
4 RHODE ISLAND PAIN-CAPABLE UNBORN CHILD PROTECTION ACT
5 23-97-1. Short title.
6 This chapter shall be known and may be cited as the “Rhode Island Pain-Capable Unborn
7 Child Protection Act”.
8 23-97-2. Legislative findings.
9 The general assembly makes the following findings:
10 (1) Pain receptors (nociceptors) are present throughout the unborn child's entire body no
11 later than sixteen (16) weeks after fertilization and nerves link these receptors to the brain's
12 thalamus and subcortical plate by no later than twenty (20) weeks.
13 (2) By eight (8) weeks after fertilization, the unborn child reacts to touch. After twenty (20)
14 weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult
15 human, for example, by recoiling.
16 (3) In the unborn child, application of such painful stimuli is associated with significant
17 increases in stress hormones known as the stress response.
18 (4) Subjection to such painful stimuli is associated with long-term harmful
1 neurodevelopmental effects, such as altered pain sensitivity and, possibly, emotional, behavioral
2 and learning disabilities later in life.
3 (5) For the purposes of surgery on unborn children, fetal anesthesia is routinely
4 administered and is associated with a decrease in stress hormones compared to their level when
5 painful stimuli are applied without the anesthesia.
6 (6) The position, asserted by some medical experts, that the unborn child is incapable of
7 experiencing pain until a point later in pregnancy than twenty (20) weeks after fertilization
8 predominately rests on the assumption that the ability to experience pain depends on the cerebral
9 cortex and requires nerve collections between the thalamus and the cortex. However, recent medical
10 research and analysis, especially since 2007, provides strong evidence for the conclusion that a
11 functioning cortex is not necessary to experience pain.
12 (7) Substantial evidence indicates that children born missing the bulk of the cerebral cortex,
13 those with hydranencephaly, nevertheless experience pain.
14 (8) In adults, stimulation or ablation of the cerebral cortex does not alter pain perception,
15 while stimulation or ablation of the thalamus does.
16 (9) Substantial evidence indicates that structures used for pain processing in early
17 development differ from those of adults, using different neural elements available at specific times
18 during development, such as the subcortical plate, to fulfill the role of pain processing.
19 (10) The position, asserted by some medical experts, that the unborn child remains in a
20 coma-like sleep state that precludes the unborn child experiencing pain is inconsistent with the
21 documented reaction of unborn children to painful stimuli and with the experience of fetal surgeons
22 who have found it necessary to sedate the unborn child with anesthesia to prevent the unborn child
23 from thrashing about in reaction to invasive surgery.
24 (11) Consequently, there is substantial medical evidence that an unborn child is capable of
25 experiencing pain by twenty (20) weeks after fertilization. The general asssembly has the
26 constitutional authority to make this judgment. As the United States Supreme Court has noted in
27 Gonzales v. Carhart, 550 U.S. 124, 162-64 (2007), "[t]he Court has given state and federal
28 legislatures wide discretion to pass legislation in areas where there is medical and scientific
29 uncertainty.”; see Marshall v. United States, 414 U.S. 417, 427 (1974) (When Congress undertakes
30 to act in areas fraught with medical and scientific uncertainties, legislative options must be
31 especially broad.). The law need not give abortion doctors unfettered choice in the course of their
32 medical practice, nor should it elevate their status above other physicians in the medical
33 community. Medical uncertainly does not foreclose the exercise of legislative power in the abortion
34 context any more than it does in other contexts.
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1 (12) It is the purpose of the state to assert a compelling state interest in protecting the lives
2 of unborn children from the stage at which substantial medical evidence indicates that they are
3 capable of feeling pain.
4 (13) In enacting this legislation the state of Rhode Island is not asking the Supreme Court
5 to overturn or replace its holding, first articulated in Roe v. Wade, and reaffirmed in Planned
6 Parenthood of Southeastern Pennsylvania v. Casey, that the state interest in unborn human life,
7 which is "legitimate" throughout pregnancy, becomes "compelling" at viability. Rather, it asserts a
8 separate and independent compelling state interest in unborn human life that exists once the unborn
9 child is capable of feeling pain, which is asserted not in replacement of, but in addition to the state's
10 compelling state interest in protecting the lives of unborn children from the stage of viability.
11 (14) The United States Supreme Court has established that the "constitutional liberty of the
12 woman to have some freedom to terminate her pregnancy ... is not so unlimited . . . that from the
13 outset the State cannot show its concern for the life of the unborn, and at a later point in fetal
14 development the state's interest in life has sufficient force so that the right of the woman to terminate
15 the pregnancy can be restricted." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
16 U.S. 833, 869 (1992).
17 (15) The Supreme Court decision upholding the Partial-Birth Abortion Ban Act, Gonzales
18 v. Carhart, 550 U.S. 124 (2007) vindicated the dissenting opinion in the earlier decision that had
19 struck down Nebraska's Partial-Birth Abortion Ban Act. That opinion stated, "[In Casey] We held
20 it was inappropriate for the Judicial Branch to provide an exhaustive list of state interests implicated
21 by abortion.” Casey is premised on the states having an important constitutional role in defining
22 their interests in the abortion debate. It is only with this principle in mind that [a state's] interests
23 can be given proper weight. States also have an interest in forbidding medical procedures which,
24 in the state's reasonable determination, might cause the medical profession or society as a whole to
25 become insensitive, even disdainful, to life, including life in the human fetus. A state may take
26 measures to ensure the medical profession and its members are viewed as healers, sustained by a
27 compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life
28 which cannot survive without the assistance of others." Stenberg v. Carhart, 350 U.S. 914, 958-59
29 (2000)(Kennedy, J., dissenting).
30 (16) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in the context of
31 determining the severability of a state statute regulating abortion, the United States Supreme Court
32 noted that an explicit statement of legislative intent specifically made applicable to a particular
33 statute is of greater weight than a general savings or severability clause, it is the intent of the state
34 that if any one or more provisions, sections, subsections, sentences, clauses, phrases or words of
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1 this chapter or the application thereof to any person or circumstance is found to be unconstitutional,
2 the same is hereby declared to be severable and the balance of this act shall remain effective
3 notwithstanding such unconstitutionality. Moreover, the state declares that it would have passed
4 this chapter, and each provision, section, subsection, sentence, clause, phrase or word thereof,
5 irrespective of the fact that any one or more provisions, sections, subsections, sentences, clauses,
6 phrases or words, or any of their applications, were to be declared unconstitutional.
7 23-97-3. Definitions.
8 For purposes of this chapter:
9 (1) "Abortion" means the use or prescription of any instrument, medicine, drug, or any
10 other substance or device to:
11 (i) Intentionally kill the unborn child of a woman known to be pregnant; or
12 (ii) Intentionally terminate the pregnancy of a woman known to be pregnant, with an
13 intention other than:
14 (A) After viability to produce a live birth and preserve the life and health of the child born
15 alive; or
16 (B) To remove a dead unborn child.
17 (2) "Attempt to perform or induce an abortion" means an act, or an omission of a statutorily
18 required act, that, under the circumstances as the actor believes them to be, constitutes a substantial
19 step in a course of conduct planned to culminate in the performance or induction of an abortion in
20 this state in violation of this chapter.
21 (3) "Department" means the department of health.
22 (4) "Fertilization" means the fusion of a human spermatozoon with a human ovum.
23 (5) "Medical emergency" means a condition that, in reasonable medical judgment, so
24 complicates the medical condition of the pregnant woman that it necessitates the immediate
25 abortion of her pregnancy without first determining post-fertilization age to avert her death, or for
26 which the delay necessary to determine post-fertilization age will create serious risk of substantial
27 and irreversible physical impairment of a major bodily function, not including psychological or
28 emotional conditions. No condition may be deemed a medical emergency if based on a claim or
29 diagnosis that the woman will engage in conduct which she intends to result in her death or in
30 substantial and irreversible physical impairment of a major bodily function.
31 (6) "Physician" means any person licensed to practice medicine and surgery, or osteopathic
32 medicine and surgery in this state.
33 (7) "Post-fertilization age" means the age of the unborn child as calculated from the fusion
34 of a human spermatozoon with a human ovum.
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1 (8) "Probable post-fertilization age of the unborn child" means what, in reasonable medical
2 judgment, will with reasonable probability be the post-fertilization age of the unborn child at the
3 time the abortion is planned to be performed or induced.
4 (9) "Reasonable medical judgment" means a medical judgment that would be made by a
5 reasonably prudent physician, knowledgeable about the case and the treatment possibilities with
6 respect to the medical conditions involved.
7 (10) "Serious health risk to the unborn child's mother" means that in reasonable medical
8 judgment she has a condition that so complicates her medical condition that it necessitates the
9 abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible
10 physical impairment of a major bodily function, not including psychological or emotional
11 conditions. No greater risk may be determined to exist if it is based on a claim or diagnosis that the
12 woman will engage in conduct which she intends to result in her death or in substantial and
13 irreversible physical impairment of a major bodily function.
14 (11) "Unborn child" or "fetus" each mean an individual organism of the species homo
15 sapiens from fertilization until live birth.
16 (12) "Woman" means a female human being, whether or not she has reached the age of
17 majority.
18 23-97-4. Protection of unborn child capable of feeling pain from abortion.
19 (a) No person may perform or induce, or attempt to perform or induce, an abortion of an
20 unborn child capable of feeling pain, unless necessary to prevent serious health risk to the unborn
21 child's mother.
22 (b) An unborn child shall be deemed capable of feeling pain when it has been determined,
23 by the physician performing or inducing, or attempting to perform or induce the abortion, or by
24 another physician upon whose determination that physician relies, that the probable post
25 fertilization age of the woman's unborn child is twenty (20) or more weeks.
26 (c) Except in the case of a medical emergency, no abortion may be performed or induced,
27 or be attempted to be performed or induced, unless the physician performing or inducing it has first
28 made a determination of the probable post fertilization age of the unborn child or relied upon such
29 a determination made by another physician. In making this determination, the physician shall make
30 such inquiries of the woman and perform or cause to be performed such medical examinations and
31 tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions
32 involved, would consider necessary to perform in making an accurate diagnosis with respect to post
33 fertilization age.
34 (d) When an abortion of an unborn child capable of feeling pain is necessary to prevent
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1 serious health risk to the unborn child's mother, the physician shall terminate the pregnancy in the
2 manner which, in reasonable medical judgment, provides the best opportunity for the unborn child
3 to survive, unless, in reasonable medical judgment, termination of the pregnancy in that manner
4 would pose a greater risk either of the death of the pregnant woman or of the substantial and
5 irreversible physical impairment of a major bodily function, not including psychological or
6 emotional conditions, of the woman than would other available methods. No greater risk may be
7 determined to exist if it is based on a claim or diagnosis that the woman will engage in conduct
8 which she intends to result in her death or in substantial and irreversible physical impairment of a
9 major bodily function.
10 23-97-5. Reporting.
11 (a) Any physician who performs or induces, or attempts to perform or induce, an abortion
12 shall report to the department, on a schedule and in accordance with forms and regulations adopted
13 and promulgated by the department, that include:
14 (1) Post-fertilization age:
15 (i) If a determination of probable post-fertilization age was made, whether ultrasound was
16 employed in making the determination, and the week of probable post-fertilization age determined;
17 (ii) If a determination of probable post-fertilization age was not made, the basis of the
18 determination that a medical emergency existed.
19 (2) Method of abortion, which of the following was employed:
20 (i) Medication abortion (such as, but not limited to, mifepristone/misoprostol or
21 methotrexate/misoprostol);
22 (ii) Manual vacuum aspiration;
23 (iii) Electrical vacuum aspiration;
24 (iv) Dilation and evacuation;
25 (v) Combined induction abortion and dilation and evacuation;
26 (vi) Induction abortion with prostaglandins;
27 (vii) Induction abortion with intra-amniotic instillation (such as, but not limited to, saline
28 or urea);
29 (viii) Induction abortion, other means;
30 (ix) Intact dilation and extraction (partial-birth); or
31 (x) Method not listed (specify).
32 (3) Whether an intra-fetal injection was used in an attempt to induce fetal demise (such as,
33 but not limited to, intra-fetal potassium chloride or digoxin).
34 (4) Age and race of the patient.
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1 (5) If the unborn child was deemed capable of experiencing pain under § 23-97-4(b), the
2 basis of the determination that the pregnant woman had a condition which so complicated her
3 medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert
4 serious risk of substantial and irreversible physical impairment of a major bodily function, not
5 including psychological or emotional conditions.
6 (6) If the unborn child was deemed capable of experiencing pain under § 23-97-4(b),
7 whether or not the method of abortion used was one that, in reasonable medical judgment, provided
8 the best opportunity for the unborn child to survive and, if such a method was not used, the basis
9 of the determination that termination of the pregnancy in that manner would pose a greater risk
10 either of the death of the pregnant woman or of the substantial and irreversible physical impairment
11 of a major bodily function, not including psychological or emotional conditions, of the woman than
12 would other available methods.
13 (b) Reports required by subsection (a) of this section shall not contain the name or the
14 address of the patient whose pregnancy was terminated, nor shall the report contain any other
15 information identifying the patient, except that