BP BHEAD INT S [atlas:bill]

AN ACT Relating to the protection of viable children, born or unborn; amending RCW 9.02.110, 9.02.170, and 18.71.240; adding new sections to chapter 9.02 RCW; creating new sections; recodifying RCW 18.71.240; prescribing penalties; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. (1) The legislature finds that the right to life is foundational to the securement and enjoyment of all other rights, that the state has a compelling interest in protecting the life of the viable fetus, and that unborn viable children have all the rights to life and safety that belong to already-born children.

(2) The legislature further finds that although it is possible for a woman to choose to terminate her pregnancy that does not include a right to terminate the life of the viable fetus, born or unborn.

NEW SECTION. Sec. 2. A physician or other person may not perform, or attempt to perform, any abortion with the intent to terminate the life of a viable fetus, unless it is necessary to preserve the life of the mother. If a pregnancy is terminated, the life of the viable fetus may not be terminated, unless it is necessary to preserve the life of the mother.

NEW SECTION. Sec. 3. A pregnancy shall not be terminated because of the presence of any sensory, mental, or physical disability or disease of the viable fetus, or of a parent of the viable fetus, unless it is necessary to preserve the life or health of the mother or the life or health of the viable fetus.

NEW SECTION. Sec. 4. A pregnancy may not be terminated because of the race, color, national origin, sex, or age of the viable fetus, or because of the race, color, national origin, creed, marital status, age, employment status, or financial condition of a parent of the viable fetus.

NEW SECTION. Sec. 5. (1) In any action or proceeding brought under section 2 of this act, the physician performing, or attempting to perform, the abortion shall substantiate with competent medical proof and professional opinion, by a preponderance of the evidence, that at the time the abortion was performed, or was attempted to be performed, the fetus was not viable, or that the abortion was necessary to preserve the life of the mother.

(2) In any action or proceeding brought under section 3 of this act, the physician performing, or attempting to perform, the abortion shall substantiate with competent medical proof and professional opinion, by a preponderance of the evidence, that at the time the abortion was performed, or was attempted to be performed, the fetus was not viable, or that the viable fetus, or a parent of the viable fetus, had a sensory, mental, or physical disability or disease, and that the abortion was necessary to preserve the life or health of the mother or the life or health of the viable fetus.

NEW SECTION. Sec. 6. (1) A violation of any provision of section 2 or 3 of this act not resulting in bodily injury to or the death of the viable fetus, born or unborn, constitutes the crime of criminal abortion. Criminal abortion is a gross misdemeanor.

(2) A violation of any provision of section 2 or 3 of this act resulting in bodily injury to the viable fetus, born or unborn, constitutes a crime under RCW 9A.36.011 through 9A.36.041.

(3) A violation of any provision of section 2 or 3 of this act resulting in the death of the viable fetus, born or unborn, constitutes a crime under RCW 9A.32.010 through 9A.32.070.

NEW SECTION. Sec. 7. (1) Any child born as a result of a termination of pregnancy under section 2 or 3 of this act shall become a ward of the state until that time as the child is adopted, if the mother of the child affirmatively relinquishes the child by signing a written statement of release terminating all rights and obligations pertaining to the child prior to or following the termination of the pregnancy.

(2) Prior to adoption, if paternity is established, the father of the child may petition the court for custody and shall be granted custody if otherwise not found to be unfit.

(3) If paternity is not established, or the father of the child is not granted custody, a maternal or paternal grandparent of the child may petition the court for custody and shall be granted custody if otherwise not found to be unfit. If both a maternal and paternal grandparent petition the court for custody, the court shall determine which placement would be in the best interest of the child.

(4) If the father or a grandparent is not granted custody of the child, a sibling of the mother of the child or, if paternity of the father has been established, a sibling of the father of the child may petition the court for custody and shall be granted custody if otherwise not found to be unfit. If more than one sibling petitions the court for custody, the court shall determine which placement would be in the best interest of the child.

(5) The department of social and health services shall compile a list of all known public and private agencies or organizations providing adoption services registered with the state, and shall make the list available to the public at large.

(6) An agency or organization may register with the department of social and health services by providing the following: (a) The name of the agency; (b) phone number; (c) address, including county; and (d) a brief description of the services offered.

Sec. 8. RCW 9.02.110 and 1992 c 1 s 2 are each amended to read as follows:

The state may not deny or interfere with a woman's right to choose to have an abortion ((~~prior to viability of the fetus,~~)) or to protect her life or health prior to the viability of the fetus. A woman's right to choose to have an abortion after the viability of the fetus does not include the right to terminate the life of the unborn viable fetus.

If a woman chooses to have an abortion after the viability of the fetus, the life of the viable fetus may not be terminated, unless it is necessary to preserve the life of the mother.

A physician may terminate and a health care provider may assist a physician in terminating a pregnancy as permitted by this section.

Sec. 9. RCW 9.02.170 and 1992 c 1 s 8 are each amended to read as follows:

For purposes of this chapter:

(1) "Viability" means the point in the pregnancy when, in the judgment of the physician on the particular facts of the case before such physician, there is a reasonable likelihood of the fetus's sustained survival outside the uterus with or without the application of extraordinary medical measures.

(2) "Abortion" means any medical treatment intended to induce the termination of a pregnancy except for the purpose of producing a live birth.

(3) "Pregnancy" means the reproductive process beginning with the implantation of an embryo.

(4) "Physician" means a physician licensed to practice under chapter 18.57 or 18.71 RCW in the state of Washington.

(5) "Health care provider" means a physician or a person who is an employee or agent of the physician, acting in the course and scope of his or her employment under the general direction of ((a)) the physician.

(6) "State" means the state of Washington and counties, cities, towns, municipal corporations, and quasi-municipal corporations in the state of Washington.

(7) "Private medical facility" means any medical facility that is not owned or operated by the state.

Sec. 10. RCW 18.71.240 and 1981 c 328 s 1 are each amended to read as follows:

The right of medical care or treatment of an infant, including a viable fetus, born alive in the course of an abortion procedure shall be the same as the right of an infant born prematurely of equal gestational age.

NEW SECTION. Sec. 11. RCW 18.71.240 is recodified as a section in chapter 9.02 RCW.

NEW SECTION. Sec. 12. Sections 2 through 7 of this act are each added to chapter 9.02 RCW.

NEW SECTION. Sec. 13. The provisions of this act are to be liberally construed to effectuate the policies and purposes of this act. In the event of conflict between provisions of this act and any other act, the provisions of this act shall govern.

NEW SECTION. Sec. 14. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 15. This act is necessary for the immediate preservation of the public peace, health, morals, or safety, or support of the state government and its existing public institutions, and takes effect immediately.