2018 Louisiana Laws
Revised Statutes
TITLE 40 - Public Health and Safety
RS 40:1061.1.1 - Louisiana Unborn Child Protection from Dismemberment Abortion Act

§1061.1.1. Louisiana Unborn Child Protection from Dismemberment Abortion Act

            A. This Section shall be known and may be cited as the "Louisiana Unborn Child Protection from Dismemberment Abortion Act".

            B. As used in this Section, the following terms have the meaning ascribed in this Subsection:

            (1) "Abortion" shall have the meaning ascribed in R.S. 40:1061.9.

            (2) "Attempt to perform an abortion" means to do or omit to do anything that, under the circumstances as the actor believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in oneself's performing an abortion. Such substantial steps include, but are not limited to:

            (a) Agreeing with an individual to perform an abortion on that individual or on some other person, whether or not the term "abortion" is used in the agreement, and whether or not the agreement is contingent on another factor such as receipt of payment or a determination of pregnancy.

            (b) Scheduling or planning a time to perform an abortion on an individual, whether or not the term "abortion" is used, and whether or not the performance is contingent on another factor such as receipt of payment or a determination of pregnancy.

            (c) The definition provided in this Paragraph shall not be construed to require that an abortion procedure must actually be initiated for an attempt to occur.

            (3)(a) "Dismemberment abortion" means, with the purpose of causing the death of an unborn child, to purposely dismember a living unborn child and extract him or her one piece at a time from the uterus through use of clamps, grasping forceps, tongs, scissors, or a similar instrument that, through the convergence of two rigid levers, slices, crushes, or grasps a portion of the unborn child's body to cut or rip it off or apart.

            (b) The term "dismemberment abortion" does not include an abortion which uses suction to dismember the body of an unborn child by vacuuming fetal parts into a collection container, although it does include an abortion in which a dismemberment abortion, as defined in this Paragraph, is used to cause the death of an unborn child and suction is subsequently used to extract fetal parts after the death of the unborn child.

            (4) "Intentionally" means the person who acts either consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.

            (5) "Physician" means a person licensed to practice medicine in the state of Louisiana who meets the requirements of R.S. 40:1061.10.

            (6) "Serious health risk to the unborn child's mother" means that in reasonable medical judgment the mother has a condition that so complicates her medical condition that it necessitates the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. No such condition may be determined to exist if it is based on a claim or diagnosis that the woman will engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.

            (7) "Woman" means a female human being whether or not she has reached the age of majority.

            C.(1) Notwithstanding any other provision of law, it shall be unlawful for any person to intentionally perform or attempt to perform a dismemberment abortion and thereby kill an unborn child unless necessary to prevent serious health risk to the unborn child's mother.

            (2) No woman upon whom an abortion is performed or attempted to be performed shall be thereby liable for performing or attempting to perform a dismemberment abortion. No nurse, technician, secretary, receptionist, or other employee or agent who is not a physician but who acts at the direction of a physician, and no pharmacist or other individual who is not a physician but who fills a prescription or provides instruments or materials used in an abortion at the direction of or to a physician shall be thereby liable for performing or attempting to perform a dismemberment abortion.

            D. Whoever violates the provisions of this Section shall be fined not more than one thousand dollars per incidence or occurrence, or imprisoned for not more than two years, or both. In addition to whatever remedies are otherwise available under the laws of this state, failure to comply with the provisions of this Section shall provide all of the following:

            (1) A basis for a cause of action for civil damages for injuries and wrongful death as more fully set forth in Civil Code Articles 2315.1 and 2315.2, whether or not the unborn child was viable at the time the abortion was performed, or was born alive, except that such causes of action shall be maintained only by the following persons:

            (a) The natural or biological father of the aborted infant or fetus, unless such father's criminal conduct caused the pregnancy.

            (b) The mother of the aborted infant or fetus, subject to the provisions of Subsection F of this Section.

            (c) The parents or guardian on behalf of the mother of the aborted infant or fetus if the mother was a minor at the time of the abortion, unless the parents or guardian consented to the dismemberment abortion.

            (2) A basis for professional disciplinary action under R.S. 37:1261 et seq.

            E.(1) A physician charged with an offense pursuant to this Section may seek a hearing before the Louisiana State Board of Medical Examiners on whether the physician's conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

            (2) The findings concerning the issue provided for in Paragraph (1) of this Subsection are admissible on that issue at the trial of the physician. Upon motion of the physician, the court shall delay the beginning of the trial for not more than thirty days to permit such hearing to take place; however, this delay may be extended for good cause.

            F. When requested, the court shall allow a woman to proceed using solely her initials or a pseudonym and may close any proceedings in the case and enter other protective orders to preserve the privacy of the woman upon whom the abortion was performed.

            G. Any person who is not a physician or not otherwise legally authorized by the state to perform abortions, but who nevertheless directly performs a dismemberment abortion, shall be subject to the provisions of this Section.

            H. Nothing in this Section shall be construed as creating or recognizing a right to abortion, or a right to a particular method of abortion.

            Acts 2016, No. 264, §1.