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ARIZONA HOUSE OF REPRESENTATIVESFifty-sixth Legislature First Regular Session |
Senate: HHS DP 4-3-0-0 | 3rd Read 16-13-1-0
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SB 1600: infants; born alive; requirements
Sponsor: Senator Shamp, LD 29
Overview
Entitles an infant who is born alive to be treated as a legal person under Arizona law with the same rights to medically appropriate and reasonable care and treatment. Requires health care professionals to take all medically appropriate actions to preserve the life and health of the infant who is born alive, among other requirements, and provides for criminal and civil remedies arising from any failure to comply with these requirements.
History
Laws 1975, Ch. 141, § 30 added the initial version of A.R.S. § 36-2301, which imposes a duty on a physician who performs an abortion to use all available means and medical skills to promote, preserve and maintain the life of a fetus or embryo that is delivered alive. The statute was next amended by Laws 1984, Ch. 151, § 1 to specify that it applies to a human fetus or embryo and also to impose the duty on any physician who is in attendance while the physician was performing the abortion.
The statute was last amended by Laws 2017, Ch. 133, § 4 to add extensive requirements for clinics and hospitals to document and report efforts taken to maintain the life of a fetus or embryo delivered alive, among other items. In its current form, the statute requires a physician performing an abortion during which the human fetus or embryo is delivered alive to report to the Arizona Department of Health Services (DHS) the measures the physician performed to maintain the life of the fetus or embryo and also to report the specific lethal fetal condition that was diagnosed before the abortion was performed. DHS is required to prescribe rules requiring any clinic or hospital that performs or induces an abortion to establish, document and implement policies and procedures to ensure compliance with these requirements.
The statute subjects a hospital that is not in substantial compliance with these DHS rules or policies to penalties and sanctions under existing law, and allows the state, through the Attorney General or applicable county attorney, to bring an action to enforce the statute in the appropriate county superior court. Moreover, the statute allows the following persons to file a civil action to obtain relief for a violation of the statute within six years of the violation:
1) the mother of the human fetus or embryo delivered alive;
2) the father of the human fetus or embryo delivered alive, unless the pregnancy resulted from the plaintiff's criminal conduct; or
3) the maternal grandparent of the human fetus or embryo delivered alive if the mother was not at least 18 years old at the time of the abortion, unless the pregnancy resulted from the plaintiff's criminal conduct.
A party who successfully brings such a civil action may obtain the following forms of relief:
1) monetary damages for psychological, emotional and physical injuries resulting from the violation;
2) statutory damages in an amount equal to $5,000 or three times the cost of the abortion, whichever is greater; and
3) reasonable attorney fees and costs.
Abortion, delivered alive and lethal fetal condition are defined in the statute (A.R.S. § 36-2301).
A different statute requires any hospital or facility in Arizona where abortions are performed to submit a report on each abortion performed therein to DHS. While the report is prohibited from identifying the individual patient by name or including other identifying information, it must include a number of other details about the abortion, including:
1) whether the fetus or embryo was delivered alive as defined in A.R.S. § 36-2301 during or immediately after an attempted abortion;
2) the efforts made to promote, preserve and maintain the life of the fetus or embryo as prescribed in A.R.S. § 36-2301; and
3) statements by the physician and all clinical staff who observed the fetus or embryo during or immediately after the abortion certifying under penalty of perjury that, to the best of their knowledge, the aborted fetus or embryo was not delivered alive as defined in A.R.S. § 36-2301 (A.R.S. § 36-2161).
Provisions
1.
Entitles an infant who is born alive to treatment
as a legal person under Arizona law with the same rights to medically
appropriate and reasonable care and treatment, including a requirement that
birth and death certificates be issued for the infant as appropriate. (Sec. 2)
2. Replaces current language imposing a duty on any physician performing an abortion and any additional physician in attendance to see that all available means and medical skills are used to promote, preserve and maintain the life of such a fetus or embryo with new language requiring any health professional who is present at the time that an infant is born alive to do the following:
a) take all medically appropriate and reasonable actions to preserve the life and health of the infant who is born alive; and
b) not deprive any infant who is born alive, regardless of the likelihood of survival, of medically appropriate and reasonable medical care or treatment. (Sec. 2)
3. Requires any health professional, hospital, abortion clinic or employee or volunteer of a hospital or abortion clinic to immediately report any known failures to comply with the above requirements to law enforcement. (Sec. 2)
4. Clarifies that the above requirements do not prevent an infant's parent or guardian from refusing to consent to medical treatment or surgical care that is not medically necessary or reasonable, including care or treatment that:
a) is not necessary to save the life of the infant;
b) has potential risk to the infant's life or health that outweighs the potential benefit to the infant of the care or treatment; or
c) will do not more than temporarily prolong the act of dying when death is imminent. (Sec. 2)
5. Makes a health professional who intentionally or knowingly violates any of the above requirements, except for the requirement to report such violations by others, guilty of a class 6 felony. (Sec. 2)
6. Requires that an Arizona-licensed health professional's license be suspended or revoked if the health professional intentionally or knowingly violates the above requirements, including the requirement to report violations by others. (Sec. 2)
7. Clarifies language regarding the right of certain persons to file a civil action arising from violation of A.R.S. § 36-2301 and replaces existing provisions authorizing specific monetary and statutory damages as forms of relief from such a civil action with provisions authorizing:
a) actual and punitive damages; and
b) a civil penalty of at least $5,000 per violation. (Sec. 2)
8. Specifies that A.R.S. § 36-2301 should not be construed as an indication that other state laws protecting children who are born are not applicable to children who are born alive during an abortion. (Sec. 2)
9. Changes terminology in A.R.S. §§ 36-2161 and 36-2301 by replacing human embryo or fetus with infant and delivered with born. (Sec. 1, 2)
10. Clarifies language in the definition of born alive (currently delivered alive) and defines infant. (Sec. 2)
11. Defines other terms, including health professional and hospital. (Sec. 2)
12. Authorizes the Legislature to appoint one or more of its members to intervene as a matter of right in any case in which A.R.S. § 36-2301 is challenged as unconstitutional or unenforceable. (Sec. 3)
13. States the Legislature's intent that each provision of A.R.S. § 36-2301 is severable and that, if any provision is held invalid or unenforceable, the provision is to be deemed severable and the remaining provisions are to be deemed enforceable. (Sec. 3)
14. Includes legislative findings. (Sec. 3)
15. Makes conforming changes. (Sec. 1, 2)
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19. SB 1600
20. Initials JL/AG Page 0 Vetoed
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