by Diane Rufino, February 2023

I wrote the following Model Bill in support of the various grassroots organizations I volunteer with, in support of the Pro-Life Movement, and in recognition of the incompetence of the US Supreme Court in deciding the Roe v. Wade (1973) case which recognized the broad right of a woman to an abortion. Right now, according to Roe, the only thing preventing a woman from aborting her full-term unborn baby are any interests the state may choose to exercise in allowing the pregnancy to continue (after viability) and in the life of the unborn. Recently, several states have declined to exercise any “state interests” in a woman’s pregnancy so that she can have an abortion at any point in her pregnancy, including up until delivery. In other words, in these states, a woman’s right to an abortion is so broad that it includes the killing of her living unborn baby.  No other “fundamental right” recognized in our US Bill of Rights is without limitations (that is, limitations based on compelling state interests).

In no moral society can we accept the notion that a woman’s right to control her reproduction and fertility (ie, her right to an abortion) is broad enough to kill her baby, which is an independent life.

I shared this Model Bill with my state representatives in the North Carolina General Assembly, all of whom share my viewpoint. They are busy submitting various bills to limit abortions in the state but none have addressed the issue at the core of the abortion debate, which is that at some point a fetus biologically and morally becomes a living human being – a new life.  If the state legislature defines life to include an unborn baby (at a stage to be supported medically), then it has inherent, inalienable rights that the US Constitution, the North Carolina constitution, and our laws are bound to respect.

I hope other states will take this approach and pass common-sense legislation to define life so that the killing fields resulting from a woman’s all-too-expansive right to an abortion will end.

RESOLUTION to DEFINE “LIFE” THROUGH LEGISLATION (MODEL, PROPOSED), 2019

“Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people.”  [Justice Antonin Scalia, in an interview]

Whereas, the right to an abortion was articulated by the Supreme Court in 1973, in the infamous case, Roe v. Wade  which addressed a challenge to a Texas statue criminalizing abortion. Roe’s attorneys argued that women have a right to an abortion under her right to privacy, including her right to control her reproductive health and to determine when to reproduce. [Roe v. Wade, 410 U.S. 113 (1973)];

Whereas, the Court has recognized that a general right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. However, it cited cases that found ‘the roots of that right’ in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments, as well as in the penumbras of the Bill of Rights. One such case was Griswold v Connecticut; (1965) which involved a challenge to a Connecticut criminal statute that prohibited married couples from using contraceptives and made their doctors liable for aiding and abetting; [Griswold v. Connecticut, 381 U.S. 479 (1965)];

Whereas, the Court concluded in Roe v. Wade that the inherent right of privacy (which the Court articulated in the case of Griswold v. Connecticut) was broad enough to include the right of a woman to control her fertility and her ability to reproduce (ie, to control what happens with and inside her womb). In other words, the Court concluded that a woman’s right to an abortion was a fundamental right;

Whereas, the Supreme Court in Roe concluded that a woman’s right to an abortion was not absolute. Rather it ‘must be considered against important state interests in regulation.’ Yet, it continued, the right of privacy could be limited only if the laws were ‘narrowly drawn to express only the legitimate state interests at stake’ (the test the Supreme Court uses to review laws that violate or burden a fundamental right, which is “Strict Scrutiny”). Because a woman’s right to an abortion was a fundamental right, only a compelling state interest could justify such an anti-abortion statute. And the Court found that there were indeed some compelling state interests, such as safeguarding health, in maintaining medical standards, and in protecting potential life. The question became at what point do the state interests come into play so as to justify the burden on the woman’s right to an abortion;

Whereas, the Supreme Court, “applying present medical knowledge,” determined that the state’s interest in the mother’s health became compelling at approximately the end of the first trimester. Until that point, women experienced less mortality from abortion than childbirth (ibid 163). After that time, a state could regulate the abortion procedure to protect maternal health, such as by requiring that abortion providers be qualified and facilities be appropriate. The state’s interest in potential life became ‘compelling’ at ‘viability’ (which is the point when a fetus has a chance of surviving outside the mother’s womb; medical community puts viability at 24 weeks). At that point, the state could even prevent abortion, except when it is necessary to preserve the life or health of the mother;

Whereas, in light of the above analysis, the Court articulated a “Trimester Framework” or “Trimester Approach” as a bright-line rule to guide the states. As explained above, the framework is essentially a legal balancing test that weighs the privacy interests of the mother against the interests of the state in order to explain when abortion rights were strongest. The “Trimester Framework” or “Trimester Approach” can be summed up as follows:

(i)     During the first trimester of pregnancy, when an abortion was considered a safer procedure than childbirth, the decision on whether to abort must be left exclusively to the mother and her attending physician. (Therefore, any state or federal regulation that interfered with the right to have an abortion would be presumptively unconstitutional).

(ii)     For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(iii)     For the stage subsequent to viability, the State may (if it chooses), in promoting its interest in the potentiality of human life, regulate, and even prevent, abortion except where it is necessary, subject to appropriate medical judgement, for the preservation of the life or health of the mother;

Whereas, while the Court noted that the government had legitimate interests in regulating abortion, it concentrated more intently on how an unwanted pregnancy affected a woman’s life. The Court identified a range of harm, including ‘specific and direct harm’ to her health, ‘a distressful life and future’ from additional children, ‘psychological harm’, health implications from caring for children, distress from bearing an unwanted child, financial stress, coercion from family, and the stigma of unwed motherhood. Consequently, the Court concluded, the right of privacy, ‘founded in the Fourteenth Amendment’s concept of personal liberty,’ was ‘broad enough to encompass a woman’s decision whether or not to terminate her pregnancy’;

Whereas, until the decision in Roe v Wade, women in the United States did not have a constitutional right to an abortion. Rather, each state had the ability to regulate abortion within its borders. The US Congress could not enact abortion legislation because the federal government lacked the constitutional authority to do so (it was not yet a recognized right);

Whereas, Roe v Wade reached the Supreme Court as part of a growing movement in the US to recognize and liberalize abortion law; arguments in favor of abortion rights centered on women’s equality, public health, overpopulation, sexual freedom, and feminism;

Whereas, the opinion in Roe was based upon what abortion advocates wanted women to be able to do, not what they believed women were truly capable of;

Whereas, the country soon found out what women were capable of, with respect to the unborn. They sought abortions to terminate the life of the unborn they either found too inconvenient to continue carrying or they didn’t want to care for when born;

Whereas, abortion rights have had certain horrific and unconscionable of unintended consequences, including the offending of our national conscience, alienating our country from the protection of God, the suffering of clinic workers (what they are forced to witness), the suffering (psychologically and emotionally) of the women who abort their babies, and the death of countless innocent lives;

Whereas, the recent passage of “late-term abortion” laws in several states, removing state interests in preserving the pregnancy up until delivery, has shocked our national conscience and has caused society to renew its discussion and debate on abortion and what rights do women actually have or what rights they actually should have;

Whereas, the Court went out of its way not to refer to the unborn fetus as ‘a “person” because to do so would bring the unborn under the protection of the Fourteenth Amendment;

Whereas, the Court acknowledged that the Constitution provides no definition of “person” or “personhood” and then came to its own conclusion that “person’ was used in the Amendment in a way that suggested that it did not include the unborn – that it referred to someone outside the womb, able to walk around….”;

Whereas, the Court ignored historical precedent, especially at the time of the adoption of the Fourteenth Amendment, that “personhood” and “life” were considered synonymous; and that a fetus was considered a “life” or a “person” per the very wording of various state abortion statues (criminal statutes) at the time of “quickening” or earlier;

Whereas, in fact, when the Fourteenth Amendment was adopted in 1868, the individual states widely recognized children in utero as persons. Nearly every state had criminal laws proscribing abortion, and most of these statutes were classified among ‘offenses against the person.’ (it is clear that the word ‘person’ referred to the fetus”);

Whereas, at the time the Fourteenth Amendment was adopted, twenty‐three states and six territories referred to the fetus as a ‘child’ in their statutes proscribing abortion;

Whereas, at the time the Fourteenth Amendment was adopted, at least twenty‐eight jurisdictions labeled abortion as an ‘offense against the person’ or an equivalent criminal classification;

Whereas, at the time the Fourteenth Amendment was adopted, nine of the ratifying states explicitly valued the lives of the preborn and their pregnant mothers equally by providing the same range of punishment for killing either during the commission of an abortion;

Whereas, at the time the Fourteenth Amendment was adopted, ten states (nine of which had ratified the Fourteenth Amendment) considered abortion to be either manslaughter, assault with intent to murder, or murder (a murder or manslaughter charge legally requires the victim to be considered a “person”);

Whereas, the only plausible explanation for the state laws and policies above is that the legislatures considered the mother and child to be equal in their personhood;

Whereas, the adoption of strict anti‐abortion measures in the mid‐nineteenth century was the natural development of a long common‐law history proscribing abortion. Beginning in the mid‐thirteenth century, the common law codified abortion as homicide as soon as the child came to life (“quickening”; animation; when the mother could first feel fetal movement) and appeared recognizably human (formation), which occurred approximately 40 days after fertilization;

Whereas, although abortion performed before ‘quickening’ had been legal at the nation’s founding, the American Medical Association, starting in the 1850s, promoted the criminalization of abortion in all cases, except to save the mother’s life;

Whereas, even by the mid-nineteenth century, courts and states alike, were increasingly rejecting the “quickening” standard as scientifically obsolete and replacing it with “fertilization”;

Whereas, besides ignoring historical tradition, the Supreme Court further ignored its own Constitutional/Fourteenth Amendment jurisprudence (established by Snyder v. Massachusetts in 1934) in determining which fundamental rights are incorporated on the States through the Fourteenth Amendment’s Due Process Clause. The question the Court must ask is whether the asserted right “is so rooted in the traditions and conscience of our people as to be ranked as fundamental,” and the Court is obligated to use the time period of the Amendment’s adoption to make that determination. [Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)];

Whereas, the fact that a majority of the States at the time of the Fourteenth Amendment, and especially those that ratified it, had restrictions on abortions for at least a century should have been strong indication to the Court that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” [Snyder v. Massachusetts, pg. 105 of the opinion];

Whereas, the very ‘fundamental’ right of privacy, on which the Court grounded the its abortion decision, was itself a court-created concept. [As the Court acknowledged, ‘The Constitution does not explicitly mention any right of privacy. . . .’];

Whereas, layman’s dictionaries at the time of the adoption of the Fourteenth Amendment treated the concepts of humanity and personhood interchangeably. (That is “life” = “pershonhood”);

Whereas, William Blackstone’s Commentaries on the Laws of England, a treatise that had profound influence on legal thinking and which was used in American law schools, was relied on by the Supreme Court, and continues to be cited even today in Supreme Court decisions (cited at least 10-12 times each year.) expressly recognized that personhood and the right to life existed before birth. He set forth a simple and clear legal standard:  “Where life can be shown to exist, legal personhood exists.” [Blackstone’s Commentaries];

Whereas, a look back through history shows that there were no laws to specifically protect the unborn prior to birth, and that makes sense in light of the generally-accepted definition of “personhood.” A pregnant woman was carrying a “life,” and hence she was carrying a new person;

Whereas, at the time the Fourteenth Amendment was adopted, Americans, state lawmakers, and government officials understood personhood to include the unborn, just as Blackstone defined it, and therefore a historical analysis shows that society in 1868 viewed personhood and life in much the same way that pro-lifers today view it;

Whereas, in his dissenting opinion in Roe v. Wade, Justice Byron White argued: “With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.” [Roe v. Wade];

Whereas, Justice White continued in his dissenting opinion: “At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons – convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure. The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother….. The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs..” [Roe v. Wade];

Whereas, in his dissenting opinion in Roe, Justice William Rehnquist argued: “The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.  Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and ‘has remained substantially unchanged to the present time.’ There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.” [Roe v. Wade];

Whereas, it is clear that the fundamental mis-conception at the heart of the Roe case was that a fetus can never be a “life” and hence could never come under the protection of the Fourteenth Amendment which speaks to rights of “persons.” In other words, the case was premised on an erroneous assumption;

Whereas, had the Supreme Court had looked at the “life” or the unborn/fetus as opposed to its “viability”; that is, if it had made the proper assumption that a fetus, at least at a certain point, becomes a living being, and hence a “life,” then the Constitution and our laws provide protection of that unborn, including observance of its fundamental rights;

Whereas, the Declaration of Independence professes: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….”;

Whereas, the minute an individual is created and blessed with life, he or she is endowed with inalienable rights, including the right to Life. Moreover, government is instituted for the primary purpose of secure those rights. It makes no difference whether that individual is 15 years old, 40 years old, 10 years old, 1 month old, or 20 weeks old. The minute it became a living being, it is understood to be entitled to the most essential of all inalienable (those attaching to our very humanity) rights;

Whereas, had the Supreme Court made the proper assumption in Roe, that a fetus, at least at a certain point, becomes a living being, and hence a “life,” then that unborn would be considered a “person” for purposes of the Fourteenth Amendment, and would therefore be recognized as having inherent and fundamental rights of its own for which our Constitution must recognize and protect;

Whereas, the Fourteenth Amendment reads: “… nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws’;

And whereas, had the Supreme Court recognized life and hence personhood in a fetus (again, at least at a certain point), then it’s analysis in Roe v. Wade would not have been “Woman’s Fundamental Right to an Abortion” vs. State Interest (if the state even wanted to exercise an interest) in preserving the life of the unborn” but rather the correct one which would have been “Woman’s Fundamental Right to an Abortion” vs. “The Unborn’s Right to Life”;

Whereas, once an unborn fetus is recognized as an independent life, a woman’s right to have an abortion will not be broad enough to include the termination of a pregnancy that contains a living fetus. In other words, a woman will no longer have the unfettered right to abort her unborn, kill it, or otherwise dispose of it;

Whereas, had “life” been defined by federal statute or state statute, then countless living unborn babies would not have had to be sacrificed at the alter of a woman’s broad right to an abortion.

THEREFORE, in consideration of all of the above, especially in light of the failings of the Roe Court to reconcile the asserted right of abortion with the US Constitution and Supreme Court jurisprudence,      the Coastal Carolina Taxpayers Association       strongly advises that the General Assembly pass legislation defining a fetus as a “life,” and hence a “person,” at a medically-appropriate point so that it can and will be respected as having fundamental rights and protected under the US Constitution, the North Carolina Constitution, and our laws.

References:

Diane Rufino, “Why Can’t Women be Both Pro-Choice and Pro-Life? It’s Possible With Common-Sense Limitations on Abortion,” For Love of God and Country Blog, February 1, 2019.  Referenced at:  https://forloveofgodandcountry.com/2019/02/01/why-cant-women-be-both-pro-choice-and-pro-life-its-possible-with-common-sense-limitations-on-abortions/

Revelations from Norma McCorvey (aka, Jane Roe) of Roe v. Wade –  https://www.liveaction.org/news/7-powerful-quotes-from-jane-roe-of-roe-v-wade/

Roe v. Wade  [410 U.S. 113 (1973)] full text of majority opinion –  https://caselaw.findlaw.com/us-supreme-court/410/113.html

Griswold v. Connecticut, 381 U.S. 479 (1965), summary –  https://www.oyez.org/cases/1964/496

Merle H Weiner, “Roe v. Wade Case (US),” Oxford Constitutional Law –  http://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e564    [Under an “originalist” approach, the Court would have had to determine what the word “persons” was understood to mean when the 14th Amendment was written and ratified. “Originalism” is often equated with “Textualism” (where judges look at the meaning of the words and intent at the time they were written)  A honest analysis would have looked not only at the definition of the term “persons” around the time of 1868, but also at society’s view of abortion at that time. In fact, for a claimed right to be covered by the 14th Amendment and hence free from government/state regulation, that right would have had to have been considered an essential liberty right at the time the Amendment was adopted. In other words, the Court should have asked two questions: “What did the term ‘persons’ mean back in 1868?”  And, “Was abortion considered a fundamental liberty right back in 1868?” [That is, the Court should have asked: Was the asserted right to an abortion “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)].

Justice William Rehnquist’s dissenting opinion in Roe v. Wade –  http://landmarkcases.c-span.org/pdf/Roe_Rehnquist_Dissent.pdf

Justice Byron White’s dissenting opinion in Roe v. Wade –  https://en.wikisource.org/wiki/Roe_v._Wade/Dissent_White

Joshua J. Craddick, Joshua J. Craddock, “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?,” Harvard Journal of Law and Public Policy, Vol. 40, No. 2 (2017).  Referenced at:  file:///C:/Users/diane/Downloads/SSRN-id2970761.pdf    [Abstract:  What should the legal status of human beings in utero be under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds. Assuming that it cannot, and that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain authority to make abortion policy?

The late Justice Scalia famously argued for the latter position and pledged he would strike down a federal ban on abortion. But is this view consistent with the original meaning of the term “person”? Using originalist interpretive methods, this paper argues that preborn human beings are legal “persons” within the meaning of the Fourteenth Amendment.]

NORTH CAROLINA “DEFINITION OF LIFE” ACT (MODEL, PROPOSED), 2022

SECTION 1.  DEFINITION OF LIFE.

(A)  Roman Catholics believe that life begins at the moment of conception. They believe that a new and unique human being is formed at the moment of conception when two independent cells (one from mom and the other from dad), incapable on their own of creating new life, merge to form a single fused cell with a distinct DNA identity and then becomes capable of growing into a unique new individual human being.

(B)  Whether or not a woman or under-age female believes she is carrying a “life” in her womb depends upon her state of mind: If she wants a baby and if she is happy to be pregnant, then she believes instinctively that she is already a “mother” and that what is growing inside her is definitely a new human life.  If she does not want to be pregnant, if she does not want to be a mother (for any of a number of reasons), then what she is going on in her womb is nothing more than a nuisance – just a growing mass of cells, without life. One believes in dignity and the other does not.

(C)  The bottom line is that a pregnancy, at least from a certain point in gestation, involves the life, the dignity, and the rights of two human beings. It cannot be just the right of the mother that carries the day and dictates what is to be done with the pregnancy and the life or death of the unborn. Morality, decency and humanity (and Biology as well) must require us to accept this and respect it.

(D)  The “viability rule,” as recognized by the outdated landmark abortion case Roe v. Wade (1973) refers to the gestational age at which a prematurely born fetus/infant has a 50% chance of long-term survival outside its mother’s womb. In Roe, “viability” was understood to mean 24 weeks of gestation. The ruling in Roe gave women the absolute right to an abortion, no questions asked, up until the 24-week-old mark. That viability line is arbitrary and unsound. In fact, in the face of the growing body of research and knowledge surrounding embryonic and gestational development, it is offensive, cruel and unusual, and tortuous to the unborn baby. As the State of Mississippi has alleged in its case before the Supreme Court (argued Dec. 1, 2021), “the time is ripe for the old rule of Roe v. Wade to be reversed.” And the Supreme Court justices, in granting review, indicated that they believe that there are “many good reasons to revisit the bright-line rule (of Roe) concerning viability of unborn life.”

(E)  In the whole discussion of abortion and unwanted or unplanned pregnancies, no one, and certainly not the Supreme Court or other federal court, has addressed a very important issue – alternatives to an abortion; the opportunity to preserve life while not being forced to be a parent.

(F)  All these issues being considered, it is a fair and honest assessment, based on genuine and accurate scientific research and studies, that a human life shall come into existence at 15 weeks of gestation. And as such, that unborn child will demand recognition, will be worthy of life and human dignity, will be endowed with inalienable, constitutional, and civil rights.

(G)  The State, having a vested interest in the life of the unborn child, just as it has an interest in all children, will act on its behalf and for its best interests.

SECTION 2:  FINDINGS.  The North Carolina General Assembly hereby finds, according to contemporary medical research, all of the following:

(1)  A fetal heartbeat begins at a biologically identifiable moment in time, normally when the fetal heart is formed in during the early weeks of gestation – between 5-6 weeks of gestation.  

(2)  An unborn human being begins to move about in the womb at approximately 8 weeks of gestation.

(3)  At 9 weeks of gestation, all basic physiological functions are present. Teeth and eyes are present, as well as external genitalia.

(4)  An unborn human being’s vital organs begin to function at 10 weeks of gestation. Hair, fingernails, and toenails also begin to form.

(5)  At 11 weeks of gestation, an unborn human being’s diaphragm is developing, and he or she may even hiccup. He or she is beginning to move about freely in the womb.

(6)  At 12 weeks of gestation, an unborn human being can open and close his or her fingers, starts to make sucking motions, and senses stimulation from the world outside the womb. Importantly, he or she has taken ‘the human form’ in all relevant aspects. [See Gonzalez v. Carhart, 550 U.S. 124, 160 (2007).

(7)  By 15 weeks (if not earlier), an unborn human being can clearly feel pain.

(8)  The majority of abortion procedures performed after 15 weeks of gestation are dilation and evacuation (D&E) procedures which involve the use of surgical instruments to crush and tear the unborn child apart before removing the pieces of the dead child from the womb. The Legislature finds that the intentional commitment of such acts for non-therapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.”

(9)  Abortion carries significant physical and psychological risks to the maternal patient, and these physical and psychological risks increase with gestational age. Specifically, in abortions performed after 8 weeks of gestation, the relative physical and psychological risks escalate exponentially as gestational age increases.

(10)  “As the second trimester progresses, in the vast majority of uncomplicated pregnancies, the material health risks of undergoing an abortion are greater than the risks of carrying a pregnancy to term.”

(11)  As many as thirty percent of natural pregnancies end in spontaneous miscarriage.

(12)  Fewer than five percent of all natural pregnancies end in spontaneous miscarriage after the detection of a fetal heartbeat.

(13)  Over ninety percent of in vitro pregnancies survive the first trimester if a fetal heartbeat is detected.

(14)  Nearly ninety percent of in vitro pregnancies do not survive the first trimester if a fetal heartbeat is not detected.

(15)  A fetal heartbeat is a key medical predictor that an unborn human individual will reach live birth.

(16)  The State of North Carolina has legitimate interests from the outset of a pregnancy in protecting the life and health of the pregnant woman, the life of the unborn child who is developing inside her womb, and the integrity of the medical profession.

(17)  “Medical complications from dilation and evacuation abortions include, but are not limited to: pelvic infection, incomplete abortions (retained fetal tissue), blood clots, heavy bleeding or hemorrhage, laceration, tear, or other injury to the cervix, puncture, laceration, tear, or other injury to the uterus, injury to the bowel or bladder, depression, anxiety, substance abuse, and other emotional or psychological problems. Further, in abortions performed after 15 weeks of gestation, there is a higher risk of requiring a hysterectomy, other reparative type surgery, or blood transfusion.”

(18)  In order to make an informed choice about whether to continue a pregnancy, a pregnant woman has a legitimate interest in knowing the likelihood of the human fetus surviving to full-term birth based upon the presence of a fetal heartbeat.

[These findings were accepted by the Mississippi state legislature, after consultation with medical professions. See reference provided]

SECTION 3.  DEFINITIONS. As used in this article:

(1)  “Conception” means fertilization.

(2)  “Contraceptive” means a drug, device, or chemical that prevents conception.

(3)  “Fetal heartbeat” means cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart, within the gestational sac.

(4)  “Gestational age” means the age of an unborn human individual as calculated from the first day of the last menstrual period of a pregnant woman.

(5)  “Gestational sac” refers to the structure that houses and encompasses the extraembryonic membranes that envelop the human fetus and that is typically visible by ultrasound after the fourth week of pregnancy.

(6)  “Human fetus” or “unborn child” each means an individual organism of the species homo sapiens from fertilization until live birth.

(7)  “Intrauterine pregnancy” means a pregnancy in which a human fetus is attached to the placenta within the uterus of a pregnant woman.

(8)  “Medical emergency” means a condition that, by any reasonable medical judgment, so complicates the medical condition of a pregnant woman that it necessitates the immediate abortion of her pregnancy to avert her death without first determining whether there is a detectable fetal heartbeat or for which the delay necessary to determine whether there is a detectable fetal heartbeat will create serious risk of a substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. A condition must not be considered a medical emergency if based on a claim or diagnosis that a woman will engage in conduct that she intends to result in her death or in a substantial and irreversible physical impairment of a major bodily function.

(9)  “Physician” means any person licensed to practice medicine and surgery, or osteopathic medicine and surgery, in this State.

(10)  “Reasonable medical judgment” means a medical judgment that would be made by a reasonably prudent physician who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.

(11)  “Spontaneous miscarriage” means the natural or accidental termination of a pregnancy and the expulsion of the human fetus, typically caused by genetic defects in the human fetus or physical abnormalities in the pregnant woman.

(12)  “Viability Rule” refers to the gestational age at which a prematurely born fetus/infant has a 50% chance of long-term survival outside its mother’s womb. In Roe v. Wade, “viability” was understood to mean 24 weeks of gestation.

SECTION 4.  REQUIREMENTS FOR ABORTION PROVIDERS. 

(A)  An abortion provider who is to perform or induce a legalized abortion, a certified technician, or another agent of the abortion provider who is competent in ultrasonography shall:

(1)  Perform an obstetric ultrasound on the pregnant woman, using whichever method the physician and pregnant woman agree is best under the circumstances;

(2)  During the performance of the ultrasound, display the ultrasound images so that the pregnant woman may view the images; and

(3)  Record a written medical description of the ultrasound images of the unborn child’s fetal heartbeat, if present and viewable.

(B)  If a pregnancy is at least eight weeks after fertilization, then the abortion provider who is to perform or induce an abortion, or an agent of the abortion provider, shall tell the woman that it may be possible to make the embryonic or fetal heartbeat of the unborn child audible for the pregnant woman to hear and shall ask the woman if she would like to hear the heartbeat. If the woman would like to hear the heartbeat, then the abortion provider shall, using whichever method the physician and patient agree is best under the circumstances, make the fetal heartbeat of the unborn child audible for the pregnant woman to hear.

(C)  Except as provided above in subsection (A), no person shall perform, induce, or attempt to perform or induce an abortion on a pregnant woman before a physician determines in accordance with subsection (A)(3) whether the human fetus the pregnant woman is carrying has a detectable fetal heartbeat.

(D)  A person who violates subsection (A) is guilty of a felony and, upon conviction, must be fined ten thousand dollars, imprisoned not more than two years, or both.

(E)  Subsection (D) above does not apply to a physician who performs or induces an abortion if the physician determines according to standard medical practice that a medical emergency exists that prevents compliance with the section.

(F)  A physician is not in violation of this Section if the physician acts in accordance with its mandates and the method used to test for the presence of a fetal heartbeat does not reveal a fetal heartbeat.

(G)  A physician who performs or induces an abortion on a pregnant woman based on the exception provided in subsection (D) above shall make written notations in the pregnant woman’s medical records of the following:

(1)  The physician’s belief that a medical emergency necessitating the abortion existed;

(2)  The physician has determined that there is a fetal abnormality and has communicated that condition clearly to the pregnant women;

(2)  The medical condition of the pregnant woman that assertedly prevented compliance with Section (A) above; and

(3)  The medical rationale to support the physician’s conclusion that the pregnant woman’s medical condition necessitated the immediate abortion of her pregnancy to avert her death.

(G)  For at least seven years from the date the notations are made, the physician shall maintain in his own records a copy of the notations.

SECTION 5.  NO ABORTIONS ALLOWED WITH THE SPECIFIC INTENT OF CAUSING OR ABETTING THE TERMINATION OF THE LIFE OF THE HUMAN FETUS.

(A)  Except as provided in Section 5 as to Exceptions to the plain meaning and spirit of this law, no person shall perform, induce, or attempt to perform or induce an abortion on a pregnant woman with the specific intent of causing or abetting the termination of the life of the human fetus the pregnant woman is carrying and whose fetal heartbeat has been detected in accordance with Section 4 (A).  

(B)  A physician may perform, induce, or attempt to perform or induce an abortion on a pregnant woman after a fetal heartbeat has been detected in only if:

(1)  The pregnancy is the result of rape, and the probable post-fertilization age of the fetus is fewer than twenty weeks;

(2)  The pregnancy is the result of incest, and the probable post-fertilization age of the fetus is fewer than twenty weeks;

(3)  The physician is acting in accordance with Section 4.

(4)  There exists a fetal anomaly, as defined in Section 4.

(C)  A physician who performs or induces an abortion on a pregnant woman based on the Exceptions articulated in Section 4 must report the allegation of rape or incest to the sheriff in the county in which the abortion was performed. The report must be made no later than twenty-four hours after performing or inducing the abortion, may be made orally or otherwise, and shall include the name and contact information of the pregnant woman making the allegation. Prior to performing or inducing an abortion, a physician who performs or induces an abortion based upon an allegation of rape or incest must notify the pregnant woman that the physician will report the allegation of rape or incest to the sheriff. The physician shall make written notations in the pregnant woman’s medical records that the abortion was performed pursuant to the applicable exception, that the doctor timely notified the sheriff of the allegation of rape or incest, and that the woman was notified prior to the abortion that the physician would notify the sheriff of the allegation of rape or incest.

(D)  A physician or other person who violates subsection (A) above is guilty of a felony and, upon conviction, must be fined ten thousand dollars, imprisoned not more than two years, or both.

(E)  Subsection (D) above does not apply to a physician who performs a medical procedure that, by any reasonable medical judgment, is designed or intended to prevent the death of the pregnant woman or to prevent the serious risk of a substantial and irreversible impairment of a major bodily function of the pregnant woman.

(F)  A physician who performs such a medical procedure as described above in subsection (E) shall declare, in a written document, that the medical procedure was necessary, by reasonable medical judgment, to prevent the death of the pregnant woman or to prevent the serious risk of a substantial and irreversible physical impairment of a major bodily function of the pregnant woman. In the document, the physician shall specify the pregnant woman’s medical condition that the medical procedure was asserted to address and the medical rationale for the physician’s conclusion that the medical procedure was necessary to prevent the death of the pregnant woman or to prevent the serious risk of a substantial and irreversible impairment of a major bodily function of the pregnant woman.

(F)  A physician who performs such a medical procedure as described in subsection (E) shall place the written document required by subsection (F) in the pregnant woman’s medical records. For at least seven years from the date the document is created, the physician shall maintain a copy of the document in his own records.

(G)  A physician will not be in violation of Subsection (A) if the physician acts in accordance with the aforementioned requirements and the method used to test for the presence of a fetal heartbeat does not reveal a fetal heartbeat.

SECTION 6.  ALTERNATIVES TO ABORTION SHALL BE PROVIDED.

A woman or underage female who is pregnant and does not want to continue with the pregnancy (ie, seeks to have an abortion) shall be provided with information to offer her possible alternatives to abortion, including but not limited to: adoption (closed or open), direct placement adoption, agency adoption, Christian adoption, asking the father to take legal rights to the baby, legal guardianship, religious counseling, peer counseling, and counseling from a pregnancy center.

SECTION 7.  LIMITATIONS OF THIS BILL.

(A)  Nothing in this article prohibits the sale, use, prescription, or administration of a drug, device, or chemical that is designed for contraceptive purposes.

(B)  A pregnant woman on whom an abortion is performed or induced in violation of this article may not be criminally prosecuted for violating any of the provisions of this article or for attempting to commit, conspiring to commit, or acting complicitly in committing a violation of any of the provisions of the article and is not subject to a civil or criminal penalty based on the abortion being performed or induced in violation of any of the provisions of this article.

SECTION 8.  WHO MAY BRING A CAUSE OF ACTION.

(A)  A woman who meets any one or more of the following criteria may file a civil action in a court of competent jurisdiction:

(1)  A woman on whom an abortion was performed or induced in violation of this article; or

(2)  A woman on whom an abortion was performed or induced who was not given the information as required in Section 4.

(B)  A woman who prevails in an action filed pursuant to subsection (A) shall receive the following from the person or party which has been named as committing the act or acts

(1)  Damages in an amount equal to ten thousand dollars or an amount determined by the trier of fact after consideration of the evidence; and

(2)  Court costs and reasonable attorney’s fees.

(C)  If the defendant in an action filed pursuant to subsection (A) prevails and the court finds that the commencement of the action constitutes frivolous conduct and that the defendant was adversely affected by the frivolous conduct, then the court shall award reasonable attorney’s fees to the defendant; provided, however, that a conclusion of frivolousness cannot rest upon the unconstitutionality of the provision that was allegedly violated.”

SECTION 9.  ENFORCEMENT.

A)  A court judgment or order suspending enforcement of any provision of this chapter is not to be regarded as tantamount to repeal of that provision.

(B)  If the United States Supreme Court finds in favor of the State of Mississippi in the Dobbs v. Jackson Women’s Health Org. case (2021-22) and revisits the wisdom and utility of the bright-line “viability rule,” if it should otherwise issue a ruling overruling Roe v. Wade, 410 U.S. 113 (1973), if any other court issues an order or judgment restoring, expanding, or clarifying the authority of states to prohibit or regulate abortion entirely or in part, or should an amendment be ratified to the Constitution of the United States restoring, expanding, or clarifying the authority of states to prohibit or regulate abortion entirely or in part, then the Attorney General may apply to the pertinent state or federal court for either or both of the following:

(1)  A declaration that any one or more of the statutory provisions specified in subsection (A) are constitutional; or

(2) A judgment or order lifting an injunction against the enforcement of any one or more of the statutory provisions specified in subsection (A).

(C)  If the Attorney General fails to apply for relief pursuant to subsection (B) within a thirty-day period after an event described in that subsection occurs, then any solicitor may apply to the appropriate state or federal court for such relief.

References: 

“South Carolina Fetal Heartbeat and Protection from Abortion Act” –  https://www.scstatehouse.gov/sess124_2021-2022/bills/1.htm

Dobbs v. Jackson Women’s Health Org, petition to the Supreme Court to be granted a Writ of Certiorari –  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/viewer.html?pdfurl=https%3A%2F%2Fwww.supremecourt.gov%2FDocketPDF%2F19%2F19-1392%2F145658%2F20200615170733513_FINAL%2520Petition.pdf&clen=32278337&chunk=true

A PREGNANT WOMAN’S RIGHT TO KNOW ACT

(A)  A pregnant woman seeking an abortion must be informed by the physician who is to perform the abortion (or by an allied health professional working in conjunction with the physician):

(1)  Of the exact nature of the procedure to be involved;

(2)  If there is a fetal heartbeat (and he/she must let the pregnant woman hear it, unless she refuses to hear it); and  

(3)  Of the probable gestational age of the embryo or fetus at the time the abortion is to be performed.

(B)  If an ultrasound is performed, an abortion may not be performed sooner than sixty minutes following completion of the ultrasound. The physician who is to perform the abortion or an allied health professional working in conjunction with the physician must inform the woman before the ultrasound procedure of her right to view the ultrasound image at her request during or after the ultrasound procedure.

(C)  If the physician who intends to perform or induce an abortion on a pregnant woman has determined pursuant to Section (A)(2) above that the human fetus the pregnant woman is carrying has a detectable fetal heartbeat, then that physician shall inform the pregnant woman in writing that the human fetus the pregnant woman is carrying has a fetal heartbeat.

(D)  The physician shall further inform the pregnant woman, to the best of the physician’s knowledge, of the statistical probability, absent an induced abortion, of bringing the human fetus possessing a detectable fetal heartbeat to term based on the gestational age of the human fetus or, if the director of the department has specified statistical probability information, shall provide to the pregnant woman that information. The department may promulgate regulations that specify information regarding the statistical probability of bringing an unborn child possessing a detectable fetal heartbeat to term based on the gestational age of the unborn child. Any regulations must be based on available medical evidence.”

(E)  A woman or under-age female seeking an abortion shall be provided with information to offer her possible alternatives to abortion, including but not limited to: adoption (closed or open), direct placement adoption, agency adoption, Christian adoption, asking the father to take legal rights to the baby, legal guardianship, religious counseling, peer counseling, and counseling from a pregnancy center.

(F)  If the reason for the abortion was other than to preserve the health of the pregnant woman, then the physician who is to perform the abortion must fill out a report specifying that maternal health was not the purpose of the abortion. This information must also be placed in the pregnant woman’s medical records and maintained for at least seven years thereafter.