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Page 1 of 8 Sb776&1049/0708 PARTIAL BIRTH ABORTION BAN PARTIAL BIRTH ABORTION BAN S.B. 776 & 1049: ANALYSIS AS PASSED BY THE SENATE Senate Bills 776 and 1049 (as passed by the Senate) Sponsor: Senator Cameron S. Brown (S.B. 776) Senator John Pappageorge (S.B. 1049) Committee: Health Policy (S.B. 776) Judiciary (S.B. 1049) Date Completed: 6-6-08 RATIONALE In recent years, opponents of a procedure would be guilty of a felony called "partial-birth abortion" have made punishable by imprisonment for up to efforts to criminalize that practice. In 2003, two years and/or a maximum fine of both the Michigan Legislature and the United $50,000. States Congress approved legislation on this -- Make an exception for a partial-birth subject. At the Federal level, the Congress abortion that was necessary to save passed and President Bush signed the the mother's life. "Partial-Birth Abortion Ban Act", and the -- Provide that a woman who obtained United States Supreme Court upheld the law a partial-birth abortion would not be in April 2007. In Michigan, the Legislature guilty of a violation. approved a bill creating the "Legal Birth -- Allow the mother's spouse or, if the Definition Act", which Governor Granholm mother were a minor, her parents, to vetoed. The Act then was proposed by bring a civil action against the person initiative petition and passed into law who performed a partial-birth without the Governor's signature. In June abortion. 2007, however, the U.S. Sixth Circuit Court -- Specify legislative findings. of Appeals affirmed a ruling of the U.S. District Court that the Act is Senate Bill 1049 would amend the Code unconstitutional. On January 7, 2008, the of Criminal Procedure to include a U.S. Supreme Court declined to review the partial-birth abortion violation in the decision of the U.S. Court of Appeals, sentencing guidelines as a Class G leaving the Act on the books but felony against a person with a statutory unenforceable. (The Federal and State maximum sentence of two years' legislation and related court decisions are imprisonment. described in BACKGROUND, below.) Since the Federal Partial-Birth Abortion Ban Act Senate Bill 1049 is tie-barred to Senate Bill has been found constitutional, opponents of 776, which is described in detail below. this abortion procedure believe that Michigan should enact legislation that would Penalty mirror the Federal law. Under Senate Bill 776, except as otherwise CONTENT provided, a physician, an individual performing an act, task, or function under Senate Bill 776 would add the "Partial- the delegatory authority of a physician, or Birth Abortion Ban Act" to the Michigan any other individual who was not a physician Penal Code to do the following: or not otherwise legally authorized to perform an abortion who knowingly -- Provide that a person who knowingly performed a partial-birth abortion and killed performed a partial-birth abortion a human fetus would be guilty of a felony Page 1 of 8 sb776&1049/0708 punishable by imprisonment for up to two Legislative Findings years and/or a fine of up to $50,000. The bill states the following legislative It would not be a violation if in the findings: physician's reasonable medical judgment a partial-birth abortion were necessary to save -- "That partial-birth abortions pose serious the life of a mother whose life was risks to the health of a woman, no endangered by a physical disorder, physical credible medical evidence exists that illness, or physical injury. partial-birth abortions are safe, and partial-birth abortions are never A woman who obtained or sought to obtain a medically necessary to preserve the partial-birth abortion would not be a health of the mother." conspirator to commit a violation of the -- "That the state has a compelling interest proposed Act. in preserving and protecting the life of the mother and the child by prohibiting "Partial-birth abortion" would mean an partial-birth abortions." abortion in which the physician, an -- "That a prominent medical association individual acting under the delegatory has determined that a partial-birth authority of the physician, or any other abortion is not an accepted medical individual performing the abortion practice, is broadly disfavored by medical deliberately and intentionally vaginally experts and the public, and is ethically delivers a living fetus until, in the case of a wrong and never the only appropriate headfirst presentation, the entire fetal head procedure; and that a partial-birth is outside the body of the mother, or in the abortion has never been subject to even case of a breech presentation, any part of a minimal amount of the normal medical the fetal trunk past the navel is outside the practice development, and therefore the body of the mother, for the purpose of relative advantages and disadvantages of performing an overt act that the person the partial-birth procedure in specific knows will kill the partially delivered living circumstances remain unknown and no fetus, and performs the overt act that kills consensus exists among obstetricians the partially delivered living fetus rather about the performance of partial-birth than completing the delivery. abortions." -- "That the physician who is credited with "Physician" would mean an individual developing the partial-birth abortion licensed by the State to engage in the procedure has testified that he has never practice of medicine or osteopathic medicine encountered a situation in which a and surgery under the Public Health Code. partial-birth abortion was medically necessary to preserve the health of a Civil Action by Spouse or Parent woman." -- "That a ban on partial-birth abortions will The spouse of the mother, or, if she were advance the health interests of pregnant younger than 18 at the time of the partial- women seeking to terminate a birth abortion, either of her parents, could pregnancy." file a civil action against the physician or -- "That, according to a prominent medical other individual who performed the association, a partial-birth abortion is procedure for a violation of the proposed Act ethically different from other abortion unless the pregnancy were a result of the procedures because it normally involves plaintiff's criminal conduct or the plaintiff the killing of a fetus that has completed consented to the procedure. A plaintiff who at least 20 weeks of gestation outside of prevailed in a civil action could recover both the womb. In light of the findings related of the following: to Roe v Wade and Planned Parenthood v Casey, the partial delivery of a fetus -- Actual damages, including damages for gives the fetus an autonomy which emotional distress. separates it from the right of a woman to -- Treble damages for the cost of the choose treatments for her own body." partial-birth abortion. -- "That a partial-birth abortion confuses the medical, legal, and ethical duties of a physician to preserve and promote life. By performing a partial-birth abortion, Page 2 of 8 Bill Analysis @ www.senate.michigan.gov/sfa sb776&1049/0708 the physician acts directly against his or involved, violated the Due Process Clause of her duties to preserve and promote the the Fourteenth Amendment. The Court life of a child, whom he or she had just found that the constitutional right of privacy delivered, all but the head, out of the "is broad enough to encompass a woman's womb, in order to end that life." decision whether or not to terminate her -- "That, by aborting a child in the manner pregnancy...but that this right is not that purposefully seeks to kill the child unqualified and must be considered against after he or she has begun the process of important state interests in regulation"; and, birth, a partial-birth abortion procedure "a State may properly assert important undermines the public's perception of the interests in safeguarding health, in appropriate role of a physician during the maintaining medical standards, and in delivery process and perverts a process protecting potential life. At some point in during which life is brought into the pregnancy, these respective interests world, in order to destroy a partially born become sufficiently compelling to sustain child." regulation of the factors that govern the -- "That the gruesome and inhumane nature abortion decision". of the partial-birth abortion procedure and its disturbing similarity to the killing The Court concluded that, for the stage of a newborn infant promotes a complete before the approximate end of the first disregard for infant human life that can trimester, the abortion decision and its only be countered by a prohibition of the effectuation must be left to the medical partial-birth abortion procedure." judgment of the pregnant woman's attending physician. For the stage after the The bill also contains the following finding: approximate end of the first trimester, the "That based on Roe v Wade and Planned state, in promoting its interest in the health Parenthood v Casey, a governmental of the mother, may regulate the abortion interest in protecting the life of a child procedure in ways that are reasonably during the delivery process arises because a related to maternal health. For the stage partial-birth abortion involves the subsequent to viability, the state, in inducement of labor and the beginning of promoting its interest in the potentiality of the birth process. This distinction was human life, may regulate and even proscribe recognized in Roe when the court noted, abortion except when it is necessary, in without comment, that the Texas Parturition appropriate medical judgment, for the Statute, which prohibited one from killing a preservation of the life or health of the child in a state of being born and before mother. actual birth, was not under attack.
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