BILL REQ. #:  H-0133.1 

Read first time 01/28/2005.   Referred to Committee on Health Care.

     AN ACT Relating to prohibiting partial birth abortions; adding a new section to chapter 9.02 RCW; creating a new section; prescribing penalties; and declaring an emergency.

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

NEW SECTION.  Sec. 1   The legislature finds and declares the following:
     (1) A moral, medical, and ethical consensus exists that the practice of performing a partial birth abortion, an abortion in which a physician delivers an unborn child's body until only the head remains inside the womb, punctures the back of the child's skull with a sharp instrument, and sucks the child's brains out before completing delivery of the dead infant, is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.
     (2) Rather than being an abortion procedure that is embraced by the medical community, particularly among physicians who routinely perform other abortion procedures, partial birth abortion remains a disfavored procedure that is not only unnecessary to preserve the health of the mother, but in fact poses serious risks to the long-term health of women and in some circumstances, their lives. As a result, at least twenty-seven states banned the procedure as did the United States Congress which voted to ban the procedure during the 104th, 105th, and 106th Congresses.
     (3) In Stenberg v. Carhart, 530 U.S. 914, 932 (2000), the United States supreme court opined "that significant medical authority supports the proposition that in some circumstances, [partial birth abortion] would be the safest procedure" for pregnant women who wish to undergo an abortion. Thus, the court struck down the state of Nebraska's ban on partial birth abortion procedures, concluding that it placed an "undue burden" on women seeking abortions because it failed to include an exception for partial birth abortions deemed necessary to preserve the "health" of the mother.
     (4) In reaching this conclusion, the court deferred to the federal district court's factual findings that the partial birth abortion procedure was statistically and medically as safe as, and in many circumstances safer than, alternative abortion procedures.
     (5) However, the great weight of evidence presented at the Stenberg trial and other trials challenging partial birth abortion bans, as well as at extensive congressional hearings, demonstrates that a partial birth abortion is never necessary to preserve the health of a woman, poses significant health risks to a woman upon whom the procedure is performed, and is outside of the standard of medical care.
     (6) Despite the dearth of evidence in the Stenberg trial court record supporting the district court's findings, the United States court of appeals for the eighth circuit and the supreme court refused to set aside the district court's factual findings because, under the applicable standard of appellate review, they were not "clearly erroneous." A finding of fact is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 573 (1985). Under this standard, "if the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. at 574.
     (7) Thus, in Stenberg, the United States supreme court was required to accept the very questionable findings issued by the district court judge; the effect of which was to render null and void the reasoned factual findings and policy determinations of the United States congress and at least twenty-seven state legislatures.
     (8) However, under well-settled supreme court jurisprudence, the United States congress is not bound to accept the same factual findings that the supreme court was bound to accept in Stenberg under the "clearly erroneous" standard. Rather, the United States congress is entitled to reach its own factual findings, findings that the supreme court accords great deference, and to enact legislation based upon these findings so long as it seeks to pursue a legitimate interest that is within the scope of the Constitution, and draws reasonable inferences based upon substantial evidence.
     (9) In Katzenbach v. Morgan, 384 U.S. 641 (1966), the supreme court articulated its highly deferential review of congressional factual findings when it addressed the constitutionality of section 4(e) of the voting rights act of 1965. Regarding congress's factual determination that section 4(e) would assist the Puerto Rican community in "gaining nondiscriminatory treatment in public services," the court stated that "[i]t was for congress, as the branch that made this judgment, to assess and weigh the various conflicting considerations.... It is not for us to review the congressional resolution of these factors. It is enough that we be able to perceive a basis upon which the congress might resolve the conflict as it did. There plainly was such a basis to support section 4(e) in the application in question in this case." Id. at 653.
     (10) Katzenbach's highly deferential review of congress's factual conclusions was relied upon by the United States district court for the District of Columbia when it upheld the bail-out provisions of the voting rights act of 1965, (42 U.S.C. 1973c), stating that "congressional fact finding, to which we are inclined to pay great deference, strengthens the inference that, in those jurisdictions covered by the act, state actions discriminatory in effect are discriminatory in purpose." City of Rome, Georgia v. U.S., 472 F. Supp. 221 (D.D. Col. 1979) aff'd City of Rome, Georgia v. U.S., 446 U.S. 156 (1980).
     (11) The court continued its practice of deferring to congressional factual findings in reviewing the constitutionality of the must-carry provisions of the cable television consumer protection and competition act of 1992. See Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622 (1994) (Turner I) and Turner Broadcasting System, Inc. v. Federal Communications Commission, 520 U.S. 180 (1997) (Turner II). At issue in the Turner cases was congress's legislative finding that, absent mandatory carriage rules, the continued viability of local broadcast television would be "seriously jeopardized." The Turner I court recognized that as an institution, "congress is far better equipped than the judiciary to 'amass and evaluate the vast amounts of data' bearing upon an issue as complex and dynamic as that presented here." 512 U.S. at 665-66. Although the court recognized that "the deference afforded to legislative findings does not foreclose our independent judgment of the facts bearing on an issue of constitutional law," its "obligation to exercise independent judgment when first amendment rights are implicated is not a license to reweigh the evidence de novo, or to replace congress's factual predictions with our own. Rather, it is to assure that, in formulating its judgments, congress has drawn reasonable inferences based on substantial evidence." Id. at 666.
     (12) Three years later in Turner II, the court upheld the "must-carry" provisions based upon congress's findings, stating the court's "sole obligation" is "to assure that, in formulating its judgments, congress has drawn reasonable inferences based on substantial evidence." 520 U.S. at 195. Citing its ruling in Turner I, the court reiterated that "[w]e owe congress's findings deference in part because the institution is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions," id. at 195, and added that it "owe[d] congress's findings an additional measure of deference out of respect for its authority to exercise the legislative power." Id. at 196.
     (13) There exists substantial record evidence upon which congress has reached its conclusion that a ban on partial birth abortion is not required to contain a "health" exception, because the facts indicate that a partial birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman's health, and lies outside the standard of medical care. Congress was informed by extensive hearings held during the 104th and 105th congresses and passed a ban on partial birth abortion in the 104th, 105th, and 106th congresses. These findings reflect the very informed judgment of the congress that a partial birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman's health, and lies outside the standard of medical care, and should, therefore, be banned.
     (14) Pursuant to the testimony received during extensive legislative hearings during the 104th and 105th congresses, the congress found that:
     (a) Partial birth abortion poses serious risks to the health of a woman undergoing the procedure. Those risks include, among other things: An increase in a woman's risk of suffering from cervical incompetence, a result of cervical dilation making it difficult or impossible for a woman to successfully carry a subsequent pregnancy to term; an increased risk of uterine rupture, abruption, amniotic fluid embolus, and trauma to the uterus as a result of converting the child to a footling breech position, a procedure which, according to a leading obstetrics textbook, "there are very few, if any, indications for... other than for delivery of a second twin"; and a risk of lacerations and secondary hemorrhaging due to the doctor blindly forcing a sharp instrument into the base of the unborn child's skull while he or she is lodged in the birth canal, an act which could result in severe bleeding, brings with it the threat of shock, and could ultimately result in maternal death.
     (b) There is no credible medical evidence that partial birth abortions are safe or are safer than other abortion procedures. No controlled studies of partial birth abortions have been conducted nor have any comparative studies been conducted to demonstrate its safety and efficacy compared to other abortion methods. Furthermore, there have been no articles published in peer-reviewed journals that establish that partial birth abortions are superior in any way to established abortion procedures. Indeed, unlike other more commonly used abortion procedures, there are currently no medical schools that provide instruction on abortions that include the instruction in partial birth abortions in their curriculum.
     (c) A prominent medical association has concluded that partial birth abortion is "not an accepted medical practice," that it has "never been subject to even a minimal amount of the normal medical practice development," that "the relative advantages and disadvantages of the procedure in specific circumstances remain unknown," and that "there is no consensus among obstetricians about its use." The association has further noted that partial birth abortion is broadly disfavored by both medical experts and the public, is "ethically wrong," and "is never the only appropriate procedure."
     (d) Neither the plaintiff in Stenberg v. Carhart, nor the experts who testified on his behalf, have identified a single circumstance during which a partial birth abortion was necessary to preserve the health of a woman.
     (e) The physician credited with developing the partial birth abortion procedure has testified that he has never encountered a situation where a partial birth abortion was medically necessary to achieve the desired outcome and, thus, is never medically necessary to preserve the health of a woman.
     (f) A ban on the partial birth abortion procedure will therefore advance the health interests of pregnant women seeking to terminate a pregnancy.
     (g) In light of this overwhelming evidence, congress and the states have a compelling interest in prohibiting partial birth abortions. In addition to promoting maternal health, such a prohibition will draw a bright line that clearly distinguishes abortion and infanticide, that preserves the integrity of the medical profession, and promotes respect for human life.
     (h) Based upon Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992), a governmental interest in protecting the life of a child during the delivery process arises by virtue of the fact that during a partial birth abortion, labor is induced and the birth process has begun. This distinction was recognized in Roe when the court noted, without comment, that the Texas parturition statute, which prohibited one from killing a child "in a state of being born and before actual birth," was not under attack. This interest becomes compelling as the child emerges from the maternal body. A child that is completely born is a full, legal person entitled to constitutional protections afforded a "person" under the United States constitution. Partial birth abortions involve the killing of a child that is in the process, in fact mere inches away from, becoming a "person." Thus, the government has a heightened interest in protecting the life of the partially born child.
     (i) This, too, has not gone unnoticed in the medical community, where a prominent medical association has recognized that partial birth abortions are "ethically different from other destructive abortion techniques because the fetus, normally twenty weeks or longer in gestation, is killed outside of the womb." According to this medical association, the "partial birth" gives the fetus an autonomy which separates it from the right of the woman to choose treatments for her own body.
     (j) Partial birth abortion also confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of a child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life. Partial birth abortion thus appropriates the terminology and techniques used by obstetricians in the delivery of living children, obstetricians who preserve and protect the life of the mother and the child, and instead uses those techniques to end the life of the partially born child.
     (k) Thus, by aborting a child in the manner that purposefully seeks to kill the child after he or she has begun the process of birth, partial birth abortion undermines the public's perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world, in order to destroy a partially born child.
     (l) The gruesome and inhumane nature of the partial birth abortion procedure and its disturbing similarity to the killing of a newborn infant promotes a complete disregard for infant human life that can only be countered by a prohibition of the procedure.
     (m) The vast majority of babies killed during partial birth abortions are alive until the end of the procedure. It is a medical fact, however, that unborn infants at this stage can feel pain when subjected to painful stimuli and that their perception of this pain is even more intense than that of newborn infants and older children when subjected to the same stimuli. Thus, during a partial birth abortion procedure, the child will fully experience the pain associated with piercing his or her skull and sucking out his or her brain.
     (n) Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life. Thus, congress has a compelling interest in acting, indeed it must act, to prohibit this inhumane procedure.
     (o) For these reasons, the congress found that partial birth abortion is never medically indicated to preserve the health of the mother; is in fact unrecognized as a valid abortion procedure by the mainstream medical community; poses additional health risks to the mother; blurs the line between abortion and infanticide in the killing of a partially born child just inches from birth; and confuses the role of the physician in childbirth and should, therefore, be banned.

NEW SECTION.  Sec. 2   A new section is added to chapter 9.02 RCW to read as follows:
     (1) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial birth abortion and thereby kills a human fetus shall be fined under this section or imprisoned not more than two years, or both. This subsection does not apply to a partial birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.
     (2) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.
     (a) "Partial birth abortion" means an abortion in which:
     (i) The person performing the abortion 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 delivered living fetus.
     (b) "Physician" means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the state in which the doctor performs such activity, or any other individual legally authorized by the state to perform abortions. However, any individual who is not a physician or not otherwise legally authorized by the state to perform abortions, but who nevertheless directly performs a partial birth abortion, is subject to the provisions of this section.
     (3)(a) The father, if married to the mother at the time she receives a partial birth abortion procedure, and if the mother has not attained the age of eighteen years at the time of the abortion, the maternal grandparents of the fetus, may in a civil action obtain appropriate relief, unless the pregnancy resulted from the plaintiff's criminal conduct or the plaintiff consented to the abortion.
     (b) Such relief shall include:
     (i) Money damages for all injuries, psychological and physical, occasioned by the violation of this section; and
     (ii) Statutory damages equal to three times the cost of the partial birth abortion.
     (4)(a) A defendant accused of an offense under this section may seek a hearing before the board of health on whether the physician's conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.
     (b) The findings on that issue are admissible on that issue at the trial of the defendant. Upon a motion of the defendant, the court shall delay the beginning of the trial for not more than thirty days to permit such a hearing to take place.
     (5) A woman upon whom a partial birth abortion is performed may not be prosecuted under this section, for a conspiracy to violate this section.

NEW SECTION.  Sec. 3   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.