House Bill No. 365

Introduced By mcgee, rehbein, clark, jore, barnett, mills, keenan, depratu, cole, wells, benedict, bishop, ellis, baer, brainard, adams, ohs, marshall, holland, bitney, story, wiseman, walters, hargrove, thomas, ahner, swysgood, devlin, beck, foster, orr, grimes, bankhead, beaudry, tropila, m. hanson, bergman, stovall, keating

"A Bill for an Act entitled: An Act creating the offense of causing a partial-birth abortion; allowing a partial-birth abortion to save the life of a woman; providing definitions; providing penalties; and amending section

50-20-109, MCA.

Be it enacted by the Legislature of the State of Montana:

Section 1.  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) "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.

(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 2.  Section 50-20-109, MCA, is amended to read:

"50-20-109.   Control of practice of abortion. (1) An Except as provided in [section 1], 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)  after viability of the fetus, unless in appropriate medical judgment, the abortion is necessary to preserve the life or health of the mother.

(2)  An abortion under subsection (1)(c) may only be performed 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) of this section 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.

(5)  The utilization plan of a physician assistant-certified may not provide for performing abortions.

(6)  Violation of subsections (1), (2), through (3), and (5) is a felony. Violation of subsection (4) is a misdemeanor."

Section 3.  Codification instruction. [Section 1] is intended to be codified as an integral part of Title 50, chapter 20, and the provisions of Title 50, chapter 20, apply to [section 1].