HOUSE BILL NO. 530
INTRODUCED BY D. MCGEE, D. GRIMES, S. ORR, L. SOFT
AN ACT REVISING CERTAIN LAWS RELATING TO ABORTION TO REMOVE OR CLARIFY CERTAIN PROVISIONS DECLARED INVALID BY THE JUDICIARY; REMOVING RESTRICTIONS ON THE PLACE OF PERFORMING AN ABORTION AND ADVERTISING; REVISING THE DEFINITION OF "PARTIAL-BIRTH ABORTION"; AND AMENDING SECTIONS 50-20-102, 50-20-109, AND 50-20-401, MCA.
WHEREAS, in Intermountain Planned Parenthood v. State of Montana, No. BDV 97-477 (First Judicial District, 1998), the District Court found the definition of "partial-birth abortion" void for reasons of vagueness.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 50-20-102, MCA, is amended to read:
"50-20-102. Statement of purpose -- findings. (1) The legislature reaffirms the tradition of the state of Montana to protect every human life, whether unborn or aged, healthy or sick. In keeping with this tradition and in the spirit of our constitution, we reaffirm the intent to extend the protection of the laws of Montana in favor of all human life. It is the policy of the state to preserve and protect the lives of all human beings and to provide protection for the viable human life. The protection afforded to a person by Montana's constitutional right of privacy is not absolute, but may be infringed upon by a compelling state interest. The legislature finds that a compelling state interest exists in the protection of viable life.
(2) The legislature finds, with respect to 50-20-401, that:
(a) the United States supreme court has determined that states have a legitimate interest in protecting both a woman's health and the potentiality of human life and that each interest grows and reaches a compelling point at various stages of a woman's approach to the full term of a pregnancy; (b) the court has also determined that subsequent to viability, the state in promoting its interest in the potentiality of human life may, if it chooses, regulate and even proscribe abortion except when necessary, in appropriate medical judgment, for the preservation of the life or health of the woman; (c) the holdings referred to in subsections (2)(a) and (2)(b) apply to unborn persons in order to extend to unborn persons the inalienable right to defend their lives and liberties;
(d) absent clear proof that an abortion is necessary to save the life of the woman, the abortion of a viable person is an infringement of that person's rights; and
(e) the state has a duty to protect innocent life and that duty has grown to a compelling point with respect to partial-birth abortion."
Section 2. Section 50-20-109, MCA, is amended to read:
"50-20-109. Control of practice of abortion. (1) Except as provided in 50-20-401, an abortion may not be performed within the state of Montana:
(a) except by a licensed physician;
(b) after the first 3 months of pregnancy, except in a hospital licensed by the department;
(c)(b) after viability of the fetus, unless in appropriate medical judgment, the abortion is necessary to preserve the life or
health of the mother except as provided in subsection (2).
(2) An abortion under subsection (1)(c) (1)(b) may only be performed only to preserve the life or health of the mother
and only if:
(a) the foregoing judgment of the physician who is to perform the abortion is first certified in writing by the physician,
setting forth in detail the facts relied upon in making the judgment; and
(b) two other licensed physicians have first examined the patient and concurred in writing with the judgment. The certification and concurrence in this subsection (2)(b) are not required if a licensed physician certifies that the abortion is necessary to preserve the life of the mother.
(3) The timing and procedure used in performing an abortion under subsection (1)(c) (1)(b) must be such that the
viability of the fetus is not intentionally or negligently endangered, as the term "negligently" is defined in 45-2-101. The
fetus may be intentionally endangered or destroyed only if necessary to preserve the life or health of the mother.
(4) A physician, facility, or other person or agency may not engage in solicitation, advertising, or other form of
communication that has the purpose of inviting, inducing, or attracting a person to come to the physician, facility, or other
person or agency to have an abortion or to purchase abortifacients.
(4) For purposes of this section, "health" means the prevention of a risk of substantial and irreversible impairment of a major bodily function.
(5) The utilization plan of a physician assistant-certified may not provide for performing abortions.
(6) Violation of subsections (1) through (3) and (5) is a felony. Violation of subsection (4) is a misdemeanor."
Section 3. Section 50-20-401, MCA, is amended to read:
"50-20-401. Offense of partial-birth abortion -- exception -- definitions -- penalties. (1) Except as provided in this section, a person commits an offense if the person purposely, knowingly, or negligently causes a partial-birth abortion.
(2) Subsection (1) does not apply to:
(a) a partial-birth abortion caused to save the life of a woman because the woman's life is endangered by a physical disorder, illness, or injury, including a life-endangering condition caused by or arising from the pregnancy itself, if no other medical procedure would save the life of the woman; or
(b) the woman upon whom a partial-birth abortion is performed.
(3) As used in this section, the following definitions apply:
(a) "Knowingly" has the meaning provided in 45-2-101.
(b) "Negligently" has the meaning provided in 45-2-101.
(c) (i) "Partial-birth abortion" means an abortion in which the person performing the abortion partially vaginally delivers a living human fetus before killing the fetus and completing the delivery.
(ii) A procedure that constitutes a partial-birth abortion is one in which the following steps occur:
(A) the living fetus is removed intact from the uterus until only the head remains in the uterus;
(B) all or a part of the intracranial contents of the fetus are evacuated;
(C) the head of the fetus is compressed; and
(D) following fetal demise, the fetus is removed from the birth canal.
(d) "Purposely" has the meaning provided in 45-2-101.
(4) A person committing the offense provided for in subsection (1) is guilty of a felony and shall be punished by:
(a) a fine of not more than $50,000;
(b) imprisonment in a correctional facility for a term of not less than 5 years and not more than 10 years; or
(c) both fine and imprisonment as provided in subsections (4)(a) and (4)(b); and
(d) permanent revocation of the license of the physician performing the partial-birth abortion. The provisions of 37-1-203 and 37-1-205 do not apply to a physician whose license is revoked pursuant to this section."
Section 4. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
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