HB2650 - 551R

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

Section 1. Title 11, chapter 3, article 6, Arizona Revised Statutes, is amended by adding section 11-532.01, to read:

START_STATUTE11-532.01. Prosecution of homicide by abortion

The county attorney shall enforce title 13, chapter 11 in relation to homicide by abortion regardless of any contrary or conflicting federal laws, regulations, treaties, court decisions or executive orders.END_STATUTE

Sec. 2. Section 12-611, Arizona Revised Statutes, is amended to read:

START_STATUTE12-611. Liability; definition

A. When death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to murder in the first or second degree or manslaughter.

B. For the purposes of this section, "person" includes an unborn child in the womb at any state of development. END_STATUTE

Sec. 3. Section 13-109, Arizona Revised Statutes, is amended to read:

START_STATUTE13-109. Place of trial

A. Criminal prosecutions shall be tried in the county in which conduct constituting any element of the offense or a result of such conduct occurred, unless otherwise provided by law.

B. The following special provisions apply:

1. If conduct constituting an element of an offense or a result constituting an element of an offense occurs in two or more counties, trial of the offense may be held in any of the counties concerned. ; or

2. A person who in one county solicits, aids, abets or attempts to aid another in the planning or commission of an offense in another county may be tried for the offense in either county. ; or

3. If an offense is committed in transit and it cannot readily be determined in which county the offense was committed, trial of the offense may be held in any county through or over which the transit occurred. ; or

4. If the cause of death is inflicted in one county and death ensues in another county, trial of the offense may be held in either county. If the cause of death is inflicted in one county and death ensues out of this state, trial of the offense shall be in the county where the cause was inflicted. If the body of a homicide victim is found in a county, it is presumed that the cause of death was inflicted in that county. ; or

5. If an offense is committed on the boundary of two or more counties or within one mile of such boundary, trial of the offense may be held in any of the counties concerned. ; or

6. A person who obtains property unlawfully may be tried in any county in which such person exerts control over the property. ; or

7. A person who commits a preparatory offense may be tried in any county in which any act that is an element of the offense, including the agreement in conspiracy, is committed.

8. If an offense involves homicide by abortion, trial of the offense may be held in the county in which the defendant is apprehended or where otherwise provided in this section.

C. If an offense has been committed within this state and it cannot readily be determined within which county or counties the commission took place, trial may be held in the county in which the defendant resides or, if the defendant has no fixed residence, in the county in which the defendant is apprehended or to which the defendant is extradited. END_STATUTE

Sec. 4. Section 13-412, Arizona Revised Statutes, is amended to read:

START_STATUTE13-412. Duress

A. Conduct which that would otherwise constitute an offense is justified if a reasonable person would believe that he was compelled to engage in the proscribed conduct by the threat or use of immediate physical force against his person or the person of another which that resulted or could result in serious physical injury which that a reasonable person in the situation would not have resisted.

B. The defense provided by subsection A of this section is unavailable if the person intentionally, knowingly or recklessly placed himself in a situation in which it was probable that he would be subjected to duress.

C. The defense provided by subsection A is unavailable for offenses involving homicide or serious physical injury. END_STATUTE

Sec. 5. Section 13-417, Arizona Revised Statutes, is amended to read:

START_STATUTE13-417. Necessity defense

A. Conduct that would otherwise constitute an offense is justified if a reasonable person was compelled to engage in the proscribed conduct and the person had no reasonable alternative to avoid imminent public or private injury greater than the injury that might reasonably result from the person's own conduct.

B. An accused person may not assert the defense under subsection A of this section if the person intentionally, knowingly or recklessly placed himself in the situation in which it was probable that the person would have to engage in the proscribed conduct.

C. An accused person may not assert the defense under subsection A for offenses involving homicide or serious physical injury. END_STATUTE

Sec. 6. Section 13-1102, Arizona Revised Statutes, is amended to read:

START_STATUTE13-1102. Negligent homicide; classification

A. A person commits negligent homicide if with criminal negligence the person causes the death of another person, including an unborn child.

B. An offense under this section applies to an unborn child in the womb at any stage of its the unborn child's development. A person may not be prosecuted under this section if any of the following applies:

1. The person was performing an abortion for which the consent of the pregnant woman, or a person authorized by law to act on the pregnant woman's behalf, has been obtained or for which the consent was implied or authorized by law.

2. The person was performing medical treatment on the pregnant woman or the pregnant woman's unborn child.

3. The person was the unborn child's mother.

C. Negligent homicide is a class 4 felony. END_STATUTE

Sec. 7. Section 13-1103, Arizona Revised Statutes, is amended to read:

START_STATUTE13-1103. Manslaughter; classification

A. A person commits manslaughter by doing any of the following:

1. Recklessly causing the death of another person. ; or

2. Committing second degree murder as prescribed in section 13‑1104, subsection A upon on a sudden quarrel or heat of passion resulting from adequate provocation by the victim. ; or

3. Intentionally providing the physical means that another person uses to commit suicide, with the knowledge that the person intends to commit suicide. ; or

4. Committing second degree murder as prescribed in section 13‑1104, subsection A, paragraph 3, while being coerced to do so by the use or threatened immediate use of unlawful deadly physical force upon such on the person or a third person which that a reasonable person in his situation would have been unable to resist. ; or

5. Knowingly or recklessly causing the death of an unborn child by any physical injury to the mother.

B. An offense under subsection A, paragraph 5 of this section applies to an unborn child in the womb at any stage of its the unborn child's development. A person shall not be prosecuted under subsection A, paragraph 5 of this section if any of the following applies:

2. The person was performing medical treatment on the pregnant woman or the pregnant woman's unborn child.

3. The person was the unborn child's mother.

C. Manslaughter is a class 2 felony. END_STATUTE

Sec. 8. Section 13-1104, Arizona Revised Statutes, is amended to read:

START_STATUTE13-1104. Second degree murder; classification

A. A person commits second degree murder if without premeditation:

1. The person intentionally causes the death of another person, including an unborn child or, as a result of intentionally causing the death of another person, causes the death of an unborn child. ; or

2. Knowing that the person's conduct will cause death or serious physical injury, the person causes the death of another person, including an unborn child or, as a result of knowingly causing the death of another person, causes the death of an unborn child. ; or

3. Under circumstances manifesting extreme indifference to human life, the person recklessly engages in conduct that creates a grave risk of death and thereby causes the death of another person, including an unborn child or, as a result of recklessly causing the death of another person, causes the death of an unborn child.

2. The person was performing medical treatment on the pregnant woman or the pregnant woman's unborn child.

3. The person was the unborn child's mother.

C. Second degree murder is a class 1 felony and is punishable as provided by section 13-705 if the victim is under fifteen years of age or is an unborn child, section 13-706, subsection A or section 13‑710.END_STATUTE

Sec. 9. Section 13-1105, Arizona Revised Statutes, is amended to read:

START_STATUTE13-1105. First degree murder; classification

A. A person commits first degree murder if:

1. Intending or knowing that the person's conduct will cause death, the person causes the death of another person, including an unborn child, with premeditation or, as a result of causing the death of another person with premeditation, causes the death of an unborn child.

2. Acting either alone or with one or more other persons the person commits or attempts to commit sexual conduct with a minor under section 13‑1405, sexual assault under section 13‑1406, molestation of a child under section 13‑1410, terrorism under section 13‑2308.01, marijuana offenses under section 13‑3405, subsection A, paragraph 4, dangerous drug offenses under section 13‑3407, subsection A, paragraphs 4 and 7, narcotics offenses under section 13‑3408, subsection A, paragraph 7 that equal or exceed the statutory threshold amount for each offense or combination of offenses, involving or using minors in drug offenses under section 13‑3409, drive by shooting under section 13-1209, kidnapping under section 13‑1304, burglary under section 13‑1506, 13‑1507 or 13‑1508, arson under section 13‑1703 or 13‑1704, robbery under section 13‑1902, 13‑1903 or 13‑1904, escape under section 13‑2503 or 13‑2504, child abuse under section 13‑3623, subsection A, paragraph 1 or unlawful flight from a pursuing law enforcement vehicle under section 28‑622.01 and, in the course of and in furtherance of the offense or immediate flight from the offense, the person or another person causes the death of any person.

3. Intending or knowing that the person's conduct will cause death to a law enforcement officer, the person causes the death of a law enforcement officer who is in the line of duty.

B. Homicide, as prescribed in subsection A, paragraph 2 of this section, requires no specific mental state other than what is required for the commission of any of the enumerated felonies.

C. An offense under subsection A, paragraph 1 of this section applies to an unborn child in the womb at any stage of its the unborn child's development. A person shall not be prosecuted under subsection A, paragraph 1 of this section if any of the following applies:

2. The person was performing medical treatment on the pregnant woman or the pregnant woman's unborn child.

3. The person was the unborn child's mother.

D. First degree murder is a class 1 felony and is punishable by death or life imprisonment as provided by sections 13-751 and 13‑752. END_STATUTE

Sec. 10. Title 13, chapter 11, Arizona Revised Statutes, is amended by adding section 13-1106, to read:

START_STATUTE13-1106. Concurrent jurisdiction; homicide by abortion

A. The attorney general and the county attorney have concurrent jurisdiction to prosecute violations of this chapter relating to homicide by abortion. END_STATUTE

Sec. 11. Repeal

Sections 13‑3603, 13‑3603.01, 13‑3603.02, 13‑3604, 15‑115 and 15‑1630, Arizona Revised Statutes, are repealed.

Sec. 12. Section 20-121, Arizona Revised Statutes, is amended to read:

START_STATUTE20-121. Health care exchange; abortion coverage; prohibition

A. Consistent with the provisions of the patient protection and affordable care act (P.L. 111‑148), any qualified health insurance policy, contract or plan offered through any health care exchange operating in this state shall not provide coverage for abortions.

B. Subsection A of this section does not apply to coverage for any abortion:

1. That is necessary to save the life of the woman having the abortion.

2. That is necessary to avert substantial and irreversible impairment of a major bodily function of the woman having the abortion.

3. When the pregnancy is the result of rape or incest. END_STATUTE

Sec. 13. Section 35-196.02, Arizona Revised Statutes, is amended to read:

START_STATUTE35-196.02. Use of public monies or insurance for abortion prohibited

A. Notwithstanding any provisions of other law to the contrary, no public funds nor monies or tax monies of this state or any political subdivision of this state nor or any federal funds monies passing through the state treasury or the treasury of any political subdivision of this state may not be expended for payment to any person or entity for the performance of any abortion unless an abortion is necessary to save the life of the woman having the abortion.

B. Notwithstanding any other law, public monies or tax monies of this state or any political subdivision of this state shall not be expended directly or indirectly to pay the costs, premiums or charges associated with a health insurance policy, contract or plan that provides coverage, benefits or services related to the performance of any abortion. unless an abortion is necessary to either:

1. Save the life of the woman having the abortion.

2. Avert substantial and irreversible impairment of a major bodily function of the woman having the abortion.

C. Notwithstanding any other law, public monies or tax monies of this state or any political subdivision of this state or any federal funds monies passing through the state treasury or the treasury of any political subdivision of this state or monies paid by students as part of tuition or fees to a state university or a community college shall not be expended or allocated for training to perform abortions.

D. This section does not prohibit the state from complying with the requirements of federal law in title XIX and title XXI of the social security act. END_STATUTE

Sec. 14. Section 35-196.05, Arizona Revised Statutes, is amended to read:

START_STATUTE35-196.05. Public funding; family planning services; contracting with certain facilities; prohibition; enforcement; definitions

A. Subject to any applicable requirements of federal law, regulations or guidelines, any appropriation, expenditure or grant of public monies for family planning services by this state or any political subdivision of this state shall be made in the following order of priority:

1. To health care facilities that are owned or operated by this state or any political subdivision of this state.

2. To hospitals and federally qualified health centers.

3. To rural health clinics.

4. To health care providers whose primary area of practice is the provision of primary health services as enumerated in 42 United States Code section 254b(b)(1).

B. This state or any political subdivision of this state may not enter into a contract with or make a grant to any person that performs nonfederally qualified abortions or maintains or operates a facility where nonfederally qualified abortions are performed for the provision of family planning services.

C. The attorney general or the county attorney may bring an action in law or equity to enforce this section, and relief shall be made available in appropriate circumstances, including recoupment and declaratory and injunctive relief.

D. Any entity that is eligible for the receipt of public monies has standing to bring any action that the attorney general or the county attorney may bring pursuant to subsection C of this section, if the expenditure or grant of public monies has resulted in the reduction of public monies available to that entity.

E. Any monies that are recouped under actions taken pursuant to subsection C or D of this section shall revert to the fund from which the monies were appropriated or granted. A prevailing plaintiff under subsection C or D of this section shall be awarded reasonable attorney fees and costs.

F. For the purposes of this section:

1. "Abortion" has the same meaning prescribed in section 36‑2151.

2. "Federally qualified health center" means a health care provider that is eligible for federal funding under 42 United States Code section 1396d(1)(2)(B) 1396d(l)(2)(B).

3. "Hospital" means a primary or tertiary care facility licensed pursuant to title 36, chapter 4, article 2.

4. "Nonfederally qualified abortion" means an abortion that does not meet the requirements for federal reimbursement under title XIX of the social security act.

5. 4. "Public monies" means state monies from whatever source, monies of a political subdivision from whatever source and federal monies provided under title X of the public health service act (42 United States Code sections 300 through 300a‑8) and titles V, XIX and XX of the social security act.

6. 5. "Rural health clinic" means a health care provider that is eligible to receive federal funding under 42 United States Code section 1395x(aa)(2). END_STATUTE

Sec. 15. Section 36-402, Arizona Revised Statutes, is amended to read:

START_STATUTE36-402. Exemptions

A. This chapter and the rules adopted by the director pursuant to this chapter do not authorize the licensure, supervision, regulation or control of:

1. The remedial care or treatment of residents or patients in any home or institution conducted only for those who rely solely on treatment by prayer or spiritual means in accordance with the creed or tenets of any well‑recognized church or religious denomination.

2. Establishments, such as motels, hotels and boarding houses, that provide domiciliary and ancillary commercial services, but do not provide adaptive, medical, hospital, nursing, behavioral health, health‑related or supervisory care services.

3. Private offices and clinics of health care providers licensed under title 32 that are not freestanding urgent care centers, unless:

(a) Patients are kept overnight as bed patients or treated otherwise under general anesthesia, except when treatment by general anesthesia is regulated by title 32, chapter 11.

(b) The office or clinic is an abortion clinic. For the purposes of this subdivision, "abortion clinic" has the same meaning prescribed in section 36‑449.01.

(c) (b) The office or clinic is a pain management clinic. For the purposes of this subdivision, "pain management clinic" has the same meaning prescribed in section 36‑448.01.

4. Dispensaries and first aid stations located within business or industrial establishments maintained solely for the use of employees if the facility does not contain inpatient beds and is under the supervision of a physician or a registered nurse practitioner.

5. The collection, processing or distribution of whole human blood, blood components, plasma, blood fractions or derivatives procured, processed or distributed by federally licensed and regulated blood banks.

6. Places where four or fewer adults not related to the administrator or owner receive adult day health services for compensation on a regular basis.

7. Places at which persons receive health‑related services only from relatives or from legal guardians or places that do not purport to be establishments that regularly provide health‑related services and at which one or two persons receive health‑related services on a twenty‑four‑hour basis.

8. The personal residence of a terminally ill person, or the personal residence of that person's relative or guardian, where that person receives hospice services from a hospice service agency.

9. All medical and health‑related facilities and services that are provided to inmates who are confined in a state prison. The state department of corrections shall annually evaluate the medical and health‑related facilities and services that are provided to inmates to determine that the facilities and services meet the applicable standards that are adopted by the director of the department of health services. The state department of corrections shall report the results of its annual evaluation and the actual findings, including a plan of correction for any deficiencies, to the director of the department of health services. The department of health services shall conduct validation surveys on a percentage of the medical and health‑related facilities, the number of which shall be determined by the state department of corrections and the department of health services. The director of the state department of corrections shall maintain the annual evaluation reports. This paragraph does not apply to licensed behavioral or mental health inpatient treatment facilities that the state department of corrections operates.

10. A facility that provides medical and health services to inmates who are confined in a county jail. The sheriff shall annually evaluate the facility to determine if it meets the applicable standards that are adopted by either a national corrections commission on health care or an American correctional association, or the sheriff shall annually submit the facility to a similar separate inspection by an outside agency with medical standards. The sheriff must submit the certificate of accreditation or proof of successful inspection to the department annually and keep a copy of the certificate or proof of inspection.

11. Community education, advocacy or recovery support groups that are not owned or operated by or contracted to provide services with a health care institution.

B. A medical and health‑related facility that provides medical and health services exclusively to persons who are incarcerated, detained or confined under court order or court jurisdiction is exempt from the patient‑per‑room capacity requirements provided in rule if the facility:

1. Does not exceed its intended medical and custodial purposes.

2. Adopts policies and procedures to comply with the national commission on correctional health care standards, or equivalent standards.

3. As soon as practicable, becomes accredited by the national commission on correctional health care, or by an equivalent organization.

4. Once accreditation is obtained, submits a certificate of accreditation to the department of health services annually.

5. Maintains a copy of the certificate of accreditation.

6. Maintains patient and custodial records, including on-site current photographs and fingerprints, if permitted allowed by applicable law.

7. Makes patient lists with inmate identifiers available to the state department of corrections on reasonable request.

8. Provides timely notice of any major incident involving public safety to the appropriate law enforcement agency and allows that agency access to the facility for the purposes of law enforcement and investigation.

C. Subsection B of this section does not apply to health care institutions that exclusively provide behavioral health services. END_STATUTE

Sec. 16. Repeal

Title 36, chapter 4, article 10, Arizona Revised Statutes, is repealed.

Sec. 17. Section 36-2151, Arizona Revised Statutes, is amended to read:

START_STATUTE36-2151. Definitions

In this article, unless the context otherwise requires:

1. "Abortion" means the use of any means to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will cause, with reasonable likelihood, the death of the unborn child. Abortion does not include birth control devices, or oral contraceptives used to inhibit or prevent ovulation, or conception or the implantation of a fertilized ovum in the uterus or the use of any means to save the life or preserve the health of the unborn child, to preserve the life or health of the child after a live birth, to terminate an ectopic pregnancy that seriously threatens the life of the mother when a reasonable alternative to save the life of both the mother and the unborn child is unavailable or to remove a dead fetus unborn child.

2. "Auscultation" means the act of listening for sounds made by internal organs of the unborn child, specifically for a heartbeat, using an ultrasound transducer and fetal heart rate monitor.

3. 2. "Conception" means the fusion of a human spermatozoon with a human ovum.

4. "Gestational age" means the age of the unborn child as calculated from the first day of the last menstrual period of the pregnant woman.

5. 3. "Health professional" has the same meaning prescribed in section 32‑3201.

6. "Medical emergency" means a condition that, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.

7. 4. "Medication abortion" means the use of any medication, drug or other substance that is intended to cause or induce an abortion.

8. 5. "Physician" means a person who is licensed pursuant to title 32, chapter 13 or 17.

9. 6. "Pregnant" or "Pregnancy" means a female reproductive condition of having a developing unborn child in the body and that begins with conception.

10. "Probable gestational age" means the gestational age of the unborn child at the time the abortion is planned to be performed and as determined with reasonable probability by the attending physician.

11. 7. "Surgical abortion" means the use of a surgical instrument or a machine to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will cause, with reasonable likelihood, the death of the unborn child. Surgical abortion does not include the use of any means to increase the probability of a live birth, to preserve the life or health of the child after a live birth, to terminate an ectopic pregnancy or to remove a dead fetus perform an abortion. Surgical abortion does not include patient care incidental to the procedure.

12. "Ultrasound" means the use of ultrasonic waves for diagnostic or therapeutic purposes to monitor a developing unborn child.

13. 8. "Unborn child" means the offspring of human beings from conception until birth. END_STATUTE

Sec. 18. Repeal

A. Sections 36-2152, 36-2153, 36-2155, 36-2156, 36-2157, 36-2158 and 36-2159, Arizona Revised Statutes, are repealed.

B. Title 36, chapter 20, article 2, Arizona Revised Statutes, is repealed.

C. Sections 36-2301, 36-2301.01 and 36-2301.02, Arizona Revised Statutes, are repealed.

Sec. 19. Conforming legislation

The legislative council staff shall prepare proposed legislation conforming the Arizona Revised Statutes to the provisions of this act for consideration in the fifty‑fifth legislature, second regular session.

Sec. 20. Appearance not required

Any federal statute, regulation, executive order or court decision that purports to supersede, stay or overrule this act is in violation of the Constitution of Arizona and the Constitution of the United States and is therefore void. This state and its political subdivisions, and agents thereof, are not required to enter an appearance, special or otherwise, in any federal suit challenging this act.

Sec. 21. Intent

The Legislature intends to:

1. Provide unborn children the equal protection of the laws of this state, to establish that a living human unborn child from the moment of fertilization and at every stage of development is entitled to the same rights, powers, privileges, justice and protections as are secured or granted by the laws of this state to any other human person.

2. Rescind current licenses to kill unborn children by repealing discriminatory provisions in order to cause all alleged offenders to be equally subject to the law, including its prohibitions, defenses, justifications and immunities.

3. Treat as void and of no effect any and all federal acts, laws, treaties, decisions, orders, rules or regulations that would deprive an unborn child of the right to life or prohibit the protection of such right.

Sec. 22. Savings clause

This act does not apply to any offense committed before the effective date of this act. The act does not affect the rights and duties that matured and proceedings that began before the effective date of this act.

Sec. 23. Nonseverability

If any portion of this act is finally and constitutionally adjudicated invalid, the entire act is void.

Sec. 24. Short title

This act may be cited as the "Abolition of Abortion in Arizona Act".

Sec. 25. Emergency

This act is an emergency measure that is necessary to preserve the public peace, health or safety and is operative immediately as provided by law.