Bill Summary – FastDemocracy

LEGISLATIVE GENERAL COUNSEL                                               H.B. 153
Approved for Filing: E.N. Weeks 6
          6 12-29-22 1:32 PM 6
                                     ABORTION REVISIONS
                                       2023 GENERAL SESSION
                                           STATE OF UTAH
                              Chief Sponsor: Raymond P. Ward
                                 Senate Sponsor: ____________
 6
 LONG TITLE
 General Description:
        This bill amends provisions regulating an abortion.
 Highlighted Provisions:
        This bill:
        < modifies and consolidates definitions;
        < repeals the statute that established a prohibition on abortions after 18 weeks and
 incorporates its contents into existing statute, replacing language that established
 now-superseded viability standards;
        < standardizes language between various statues that regulate abortion;
        < clarifies the conditions under which an abortion may be performed to protect the
 health of the mother;
        < amends language related to medical defects of a fetus; and
        < makes technical corrections.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        None
 Utah Code Sections Affected:
                                                                                                   H.B. 153
 AMENDS:
        63I-2-276, as last amended by Laws of Utah 2022, Chapter 117
     *HB0153*
       H.B. 153                                                                  12-29-22 1:32 PM
        76-7-301, as last amended by Laws of Utah 2021, Chapter 262
        76-7-302, as last amended by Laws of Utah 2022, Chapter 335
        76-7-302.4, as enacted by Laws of Utah 2019, Chapter 124
        76-7-304, as last amended by Laws of Utah 2018, Chapter 282
        76-7-304.5, as last amended by Laws of Utah 2022, Chapter 287
        76-7-305, as last amended by Laws of Utah 2022, Chapter 181
        76-7-308.5, as last amended by Laws of Utah 2016, Chapter 362
        76-7-314, as last amended by Laws of Utah 2019, Chapter 208
        76-7-314.5, as last amended by Laws of Utah 2010, Chapter 13
        76-7a-101, as last amended by Laws of Utah 2021, Chapter 262
        76-7a-201, as enacted by Laws of Utah 2020, Chapter 279
 REPEALS:
        76-7-302.5, as enacted by Laws of Utah 2019, Chapter 208
41
 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 63I-2-276 is amended to read:
        63I-2-276. Repeal dates: Title 76.
        (1) Subsection 76-5-102.7(2)(b), regarding assault or threat of violence against an
 owner, employee, or contractor of a health facility, is repealed January 1, 2027.
        [(2) If Section 76-7-302.4 is not in effect before January 1, 2029, Section 76-7-302.4 is
 repealed January 1, 2029.]
        [(3)] (2) Section 76-7-305.7 is repealed January 1, 2023.
        Section 2. Section 76-7-301 is amended to read:
        76-7-301. Definitions.
        As used in this part:
        (1) (a) "Abortion" means[: (i)] the intentional termination or attempted termination of
 human pregnancy after implantation of a fertilized ovum [through a medical procedure carried
 out by a physician or through a substance used under the direction of a physician;] with the
 intention of ending the life of the unborn child by:
        (i) a surgical procedure; or
        (ii) the prescribing of medications.
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      12-29-22 1:32 PM                                                                         H.B. 153
        [(ii) the intentional killing or attempted killing of a live unborn child through a medical
 procedure carried out by a physician or through a substance used under the direction of a
 physician; or]
        [(iii) the intentional causing or attempted causing of a miscarriage through a medical
 procedure carried out by a physician or through a substance used under the direction of a
 physician.]
        (b) "Abortion" does not include:
        (i) removal of a dead unborn child;
        (ii) removal of an ectopic pregnancy; or
        (iii) the killing or attempted killing of an unborn child without the consent of the
 pregnant woman, unless:
        (A) the killing or attempted killing is done through a medical procedure carried out by
 a physician or through a substance used under the direction of a physician; and
        (B) the physician is unable to obtain the consent due to a medical emergency.
        (2) "Abortion clinic" means the same as that term is defined in Section 26-21-2.
        (3) "Abuse" means the same as that term is defined in Section 80-1-102.
        (4) "Department" means the Department of Health and Human Services.
        (5) "Down syndrome" means a genetic condition associated with an extra chromosome
 21, in whole or in part, or an effective trisomy for chromosome 21.
        (6) "Gestational age" means the age of an unborn child as calculated from the first day
 of the last menstrual period of the pregnant woman.
        (7) "Hospital" means:
        (a) a general hospital licensed by the department according to Title 26, Chapter 21,
 Health Care Facility Licensing and Inspection Act; [and] or
        (b) a clinic or other medical facility to the extent that [such] the clinic or other medical
 facility is certified by the department as providing equipment and personnel sufficient in
 quantity and quality to provide the same degree of safety to [the] a pregnant woman and [the]
 an unborn child as would be provided for the particular medical [procedures] procedure
 undertaken by a general hospital licensed by the department.
        (8) "Information module" means the pregnancy termination information module
 prepared by the department.
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        H.B. 153                                                                     12-29-22 1:32 PM
         (9) "Medical emergency" means that condition which, on the basis of the physician's
 good faith clinical judgment, so threatens the life of a pregnant woman as to necessitate the
 immediate abortion of her pregnancy to avert her death, or for which a delay will create serious
 risk of substantial [and irreversible] impairment of major bodily function.
         (10) "Minor" means an individual who is:
         (a) under 18 years old;
         (b) unmarried; and
         (c) not emancipated.
         (11) (a) "Partial birth abortion" means an abortion in which the person performing the
 abortion:
         (i) deliberately and intentionally vaginally delivers a living fetus until, in the case of a
 head first presentation, the entire fetal head is outside the body of the mother, or, in the case of
 breech presentation, any part of the fetal trunk past the navel is outside the body of the mother,
 for the purpose of performing an overt act that the person knows will kill the partially delivered
 living fetus; and
         (ii) performs the overt act, other than completion of delivery, that kills the partially
 living fetus.
         (b) "Partial birth abortion" does not include the dilation and evacuation procedure
 involving dismemberment prior to removal, the suction curettage procedure, or the suction
 aspiration procedure for abortion.
         (12) "Physician" means:
         (a) a medical doctor licensed to practice medicine and surgery under Title 58, Chapter
 67, Utah Medical Practice Act;
         (b) an osteopathic physician licensed to practice osteopathic medicine under Title 58,
 Chapter 68, Utah Osteopathic Medical Practice Act; or
         (c) a physician employed by the federal government who has qualifications similar to
 [a person] an individual described in Subsection (12)(a) or (b).
         [(13) (a) "Severe brain abnormality" means a malformation or defect that causes an
 individual to live in a mentally vegetative state.]
         [(b) "Severe brain abnormality" does not include:]
         [(i) Down syndrome;]
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        12-29-22 1:32 PM                                                                        H.B. 153
        [(ii) spina bifida;]
        [(iii) cerebral palsy; or]
        [(iv) any other malformation, defect, or condition that does not cause an individual to
 live in a mentally vegetative state.]
        Section 3. Section 76-7-302 is amended to read:
        76-7-302. Circumstances under which abortion authorized.
        [(1) As used in this section, "viable" means that the unborn child has reached a stage of
 fetal development when the unborn child is potentially able to live outside the womb, as
 determined by the attending physician to a reasonable degree of medical certainty.]
        [(2)] (1) An abortion may be performed in this state only by a physician.
        [(3)] (2) An abortion may be performed in this state only under the following
 circumstances:
        (a) the unborn child [is not viable] has not reached 18 weeks gestational age; or
        (b) the unborn child [is viable] has reached 18 weeks gestational age, if:
        (i) the abortion is necessary to avert:
        (A) the death of the woman on whom the abortion is performed; or
        (B) a serious risk of substantial [and irreversible] impairment of a major bodily
 function of the woman on whom the abortion is performed;
        (ii) two physicians who practice maternal fetal medicine concur, in writing, in the
 patient's medical record that the fetus:
        (A) [has a defect that is uniformly diagnosable and uniformly lethal] has a severe
 medical condition that will likely be fatal once the fetus is outside the womb; or
        (B) [has a severe brain abnormality that is uniformly diagnosable] has a severe defect,
 not to include Down syndrome or uncomplicated spina bifida, that will require long-term
 intensive life sustaining measures and that will result in prolonged suffering for the infant; or
        (iii) (A) the woman is pregnant as a result of:
        (I) rape, as described in Section 76-5-402;
        (II) rape of a child, as described in Section 76-5-402.1; or
        (III) incest, as described in Subsection 76-5-406(2)(j) or Section 76-7-102; and
        (B) before the abortion is performed, the physician who performs the abortion:
        (I) verifies that the incident described in Subsection [(3)(b)(iii)(A)] (2)(b)(iii)(A) has
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       H.B. 153                                                                    12-29-22 1:32 PM
 been reported to law enforcement; and
        (II) if applicable, complies with the requirements of Section 80-2-602.
        [(4)] (3) An abortion may be performed only in an abortion clinic or a hospital, unless
 it is necessary to perform the abortion in another location due to a medical emergency.
        Section 4. Section 76-7-302.4 is amended to read:
        76-7-302.4. Abortion restriction of an unborn child with Down syndrome.
        Notwithstanding any other provision of this part, an abortion may not be performed if
 the pregnant mother's sole reason for the abortion is that the unborn child has or may have
 Down syndrome, unless the abortion is permissible for a reason described in [Subsection
 76-7-302(3)(b)] Section 76-7-302.
        Section 5. Section 76-7-304 is amended to read:
        76-7-304. Considerations by physician -- Notice to a parent or guardian --
 Exceptions.
        (1) To enable the physician to exercise the physician's best medical judgment, the
 physician shall consider all factors relevant to the well-being of a pregnant woman upon whom
 an abortion is to be performed, including:
        (a) her physical, emotional, and psychological health and safety;
        (b) her age; and
        (c) her familial situation.
        (2) Subject to Subsection (3), at least 24 hours before a physician performs an abortion
 on a minor, the physician shall notify a parent or guardian of the minor that the minor intends
 to have an abortion.
        (3) A physician is not required to comply with Subsection (2) if:
        (a) subject to Subsection (4)(a):
        (i) a medical condition exists that, on the basis of the physician's good faith clinical
 judgment, so complicates the medical condition of a pregnant minor as to necessitate the
 abortion of her pregnancy to avert:
        (A) the minor's death; or
        (B) a serious risk of substantial [and irreversible] impairment of a major bodily
 function of the minor; and
        (ii) there is not sufficient time to give the notice required under Subsection (2) before it
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        12-29-22 1:32 PM                                                                         H.B. 153
 is necessary to terminate the minor's pregnancy in order to avert the minor's death or
 impairment described in Subsection (3)(a)(i);
        (b) subject to Subsection (4)(b):
        (i) the physician complies with Subsection (5); and
        (ii) (A) the minor is pregnant as a result of incest to which the parent or guardian was a
 party; or
        (B) the parent or guardian has abused the minor; or
        (c) subject to Subsection (4)(b), the parent or guardian has not assumed responsibility
 for the minor's care and upbringing.
        (4) (a) If, for the reason described in Subsection (3)(a), a physician does not give the
 24-hour notice described in Subsection (2), the physician shall give the required notice as early
 as possible before the abortion, unless it is necessary to perform the abortion immediately in
 order to avert the minor's death or impairment described in Subsection (3)(a)(i).
        (b) If, for a reason described in Subsection (3)(b) or (c), a parent or guardian of a minor
 is not notified that the minor intends to have an abortion, the physician shall notify another
 parent or guardian of the minor, if the minor has another parent or guardian that is not exempt
 from notification under Subsection (3)(b) or (c).
        (5) If, for a reason described in Subsection (3)(b)(ii)(A) or (B), a physician does not
 notify a parent or guardian of a minor that the minor intends to have an abortion, the physician
 shall report the incest or abuse to the Division of Child and Family Services within the
 Department of Health and Human Services.
        Section 6. Section 76-7-304.5 is amended to read:
        76-7-304.5. Consent required for abortions performed on minors -- Division of
 Child and Family Services as guardian of a minor -- Hearing to allow a minor to
 self-consent -- Appeals.
        (1) In addition to the other requirements of this part, a physician may not perform an
 abortion on a minor unless:
        (a) the physician obtains the informed written consent of a parent or guardian of the
 minor, in accordance with Sections 76-7-305 and 76-7-305.5;
        (b) the minor is granted the right, by court order under Subsection (4)(b), to consent to
 the abortion without obtaining consent from a parent or guardian; or
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        H.B. 153                                                                     12-29-22 1:32 PM
         (c) (i) a medical condition exists that, on the basis of the physician's good faith clinical
 judgment, so complicates the medical condition of a pregnant minor as to necessitate the
 abortion of her pregnancy to avert:
         (A) the minor's death; or
         (B) a serious risk of substantial [and irreversible] impairment of a major bodily
 function of the minor; and
         (ii) there is not sufficient time to obtain the consent in the manner chosen by the minor
 under Subsection (2) before it is necessary to terminate the minor's pregnancy in order to avert
 the minor's death or impairment described in Subsection (1)(c)(i).
         (2) (a) A minor who wants to have an abortion may choose:
         (i) to seek consent from the minor's parent or guardian as described in Subsection (1);
 or
         (ii) to seek a court order as described in Subsection (1).
         (b) Neither Subsection (1) nor this Subsection (2) require the minor to seek or obtain
 consent from the minor's parent or guardian if the circumstances described in Subsection
 76-7-304(3)(b)(ii) exist.
         (3) If a minor does not obtain the consent of the minor's parent or guardian, the minor
 may file a petition with the juvenile court to obtain a court order as described in Subsection (1).
         (4) (a) The juvenile court shall close the hearing on a petition described in Subsection
 (3) to the public.
         (b) After considering the evidence presented at the hearing, the court shall order that
 the minor may obtain an abortion without the consent of a parent or guardian of the minor if
 the court finds by a preponderance of the evidence that:
         (i) the minor:
         (A) has given her informed consent to the abortion; and
         (B) is mature and capable of giving informed consent to the abortion; or
         (ii) an abortion would be in the minor's best interest.
         (5) The Judicial Council shall make rules that:
         (a) provide for the admin