ACT TO AMEND TITLE 24 OF THE DELAWARE CODE RELATING TO UNBORN CHILDREN.

Legislation Document

SPONSOR:

Sen. Richardson & Rep. Dukes

Sen. Wilson; Reps. Collins, Hilovsky, D. Short, Shupe

DELAWARE STATE SENATE

153rd GENERAL ASSEMBLY

SENATE SUBSTITUTE NO. 1

FOR

SENATE BILL NO. 251

ACT TO AMEND TITLE 24 OF THE DELAWARE CODE RELATING TO UNBORN CHILDREN.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend § 1702, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 1702. Definitions.

The following definitions apply to this chapter unless otherwise expressly stated or implied by the context:

(18) “Reproductive health services” includes all of the following:

a. “Abortion” as defined in

§ 1782

§ 1790A

of this title.

b. “Termination of pregnancy” as authorized

in § 1790

under subchapter IX of Chapter 17

of this title.

(22) "Viability" means the point in a pregnancy when, in a physician's good faith medical judgment based on the factors of a patient's case, there is a reasonable likelihood of the fetus's sustained survival outside the uterus without the application of extraordinary medical measures.

Section 2. Amend Chapter 17 of Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

Subchapter IX.

Termination of Human Pregnancy

The Pain-Capable Unborn Child Protection Act.

§ 1790.

Termination of pregnancy before viability not prohibited; termination of pregnancy after viability limited.

Legislative Findings.

The General Assembly makes the following findings:

(1) There is substantial medical evidence that an unborn child is capable of experiencing pain by 5 months after fertilization.

a. Pain receptors, nociceptors, are present throughout an unborn child’s entire body no later than 16 weeks after fertilization and nerves link these receptors to the brain’s thalamus and subcortical plate by no later than 5 months.

b. By 8 weeks after fertilization, the unborn child reacts to touch. After 5 months, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human, for example, by recoiling.

c. In the unborn child, application of painful stimuli is associated with significant increases in stress hormones known as the stress response.

d. Subjection to painful stimuli is associated with long-term harmful neuro developmental effects, such as altered pain sensitivity and, possibly, emotional, behavioral, and learning disabilities later in life.

e. For the purposes of surgery on unborn children, fetal anesthesia is routinely administered and is associated with a decrease in stress hormones compared to their level when painful stimuli is applied without the anesthesia.

f. The position, asserted by some medical experts, that the unborn child is incapable of experiencing pain until a point later in pregnancy than 5 months after fertilization, predominately rests on the assumption that the ability to experience pain depends on the cerebral cortex and requires nerve connections between the thalamus and the cortex. However, recent medical research and analysis, especially since 2007, provides strong evidence for the conclusion that a functioning cortex is not necessary to experience pain.

g. Substantial evidence indicates that children born missing the bulk of the cerebral cortex, those with hydranencephaly, experience pain.

h. In adults, stimulation or ablation of the cerebral cortex does not alter pain perception while stimulation or ablation of the thalamus does.

i. Substantial evidence indicates that structures used for pain processing in early development differ from those of adults, using different neural elements available at specific times during development, such as the subcortical plate, to fulfill the role of pain processing.

(2) The General Assembly has the constitutional authority to make the findings under this section. As the United States Supreme Court noted in

Gonzales v. Carhart

, 550 U.S. 124, 162-64 (2007), “[t]he Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty….See

Marshall v. United States

, 414 U.S. 417, 427 (1974) (‘When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad.’)….The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community…. Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.”

(3) It is the purpose of this subchapter to assert a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.

(4) The position, asserted by some medical experts, that the unborn child remains in a coma-like sleep state that precludes the unborn child experiencing pain is inconsistent with the documented reaction of unborn children to painful stimuli and with the experience of fetal surgeons who have found it necessary to sedate the unborn child with anesthesia to prevent the unborn child from thrashing about in reaction to invasive surgery.

(5) In enacting this subchapter, this State is not asking the Supreme Court to overturn or replace its holding, first articulated in

Roe v. Wade

, and reaffirmed in

Planned Parenthood of Southeastern Pennsylvania v. Casey

, that the state interest in unborn human life, which is “legitimate” throughout pregnancy, becomes “compelling” at viability. Rather, this State asserts a separate and independent compelling state interest in unborn human life that exists once the unborn child is capable of feeling pain, which is asserted not in replacement of, but in addition to Delaware’s compelling state interest in protecting the lives of unborn children from the stage of viability under the following United States Supreme Court decisions:

a. Establishing that the “constitutional liberty of the woman to have some freedom to terminate her pregnancy…is not so unlimited…that from the outset the State cannot show its concern for the life of the unborn, and at a later point in fetal development the State’s interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted.”

Planned Parenthood of Southeastern Pennsylvania v. Casey

, 505 U.S. 833, 869 (1992).

b. Upholding the Partial-Birth Abortion Ban Act,

Gonzales v. Carhart

, 550 U.S. 124 (2007), vindicated the dissenting opinion in the earlier decision that had struck down Nebraska’s Partial-Birth Abortion Ban Act. That opinion stated, “[In

Casey

] [w]e held it was inappropriate for the Judicial Branch to provide an exhaustive list of state interests implicated by abortion….

Casey

is premised on the States having an important constitutional role in defining their interests in the abortion debate. It is only with this principle in mind that [a state’s] interests can be given proper weight.…States also have an interest in forbidding medical procedures which, in the State’s reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus….A state may take measures to ensure the medical profession and its members are viewed as healers, sustained by a compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life which cannot survive without the assistance of others.”

Stenberg v. Carhart

, 350 U.S. 914, 958-59 (2000) (Kennedy, J. dissenting).

(6) Mindful of

Leavitt v. Jane L.

, 518 U.S. 137 (1996), in which in the context of determining the severability of a state statute regulating abortion, noting that an explicit statement of legislative intent specifically made applicable to a particular statute is of greater weight than a general savings or severability clause, it is the intent of the state that if any one or more provisions, sections, subsections, sentences, clauses, phrases or words of this Act or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of this subchapter remains effective notwithstanding such unconstitutionality. Moreover, the State declares that it would have enacted this subchapter, and each provision, section, subsection, sentence, clause, phrase, or word thereof, irrespective of the fact that any one or more provisions, sections, subsections, sentences, clauses, phrases, or words, or any of their applications, were to be declared unconstitutional.

(7) In creating a Certificate of Birth Resulting in Stillbirth, the 149

th

General Assembly recognized the potential for human pregnancy to result in the birth of a baby.

(8) In 2022, the U.S. Supreme Court sent policymaking decisions about abortion back to the states,

Dobbs v. Jackson Women's Health Org.

, 142 S. Ct. 2228.

§ 1790A. Definitions.

For purposes of this subchapter:

(1) “Abortion” means the use or prescription of any instrument, medicine, drug, or any other substance or device to do any of the following:

a. Intentionally kill the unborn child of a woman known to be pregnant.

b. To intentionally terminate the pregnancy of a woman known to be pregnant, with an intention to do other than either of the following:

1. After viability, produce a live birth and preserve the life and health of the child born alive.

2. Remove a dead unborn child.

(2) “Attempt to perform or induce an abortion” means an act or an omission of a statutorily required act that, under the circumstances as the person believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance or induction of an abortion in this State in violation of the applicable provisions of this subchapter.

(3) “Fertilization” means the fusion of a human spermatozoon with a human ovum.

(4) “Fetus” or “unborn child” means an individual organism of the species homo sapiens from fertilization until live birth.

(a) Any

(5) “Health-care practitioner” means an individual who possess a valid State of Delaware license to practice as any

of the

following may terminate, assist in the termination of, or attempt the termination of a human pregnancy before viability:

following:

(1)

a.

A physician.

(2)

b.

A physician assistant with a collaborative agreement with an appropriately-trained physician.

(3)

c.

A certified nurse midwife or certified nurse practitioner who demonstrates knowledge and competency including successful completion of a training or certification approved by the Board of Nursing.

(b) A physician may not terminate, attempt to terminate, or assist in the termination or attempt at termination of a human pregnancy otherwise than by birth after viability, unless, in the good faith medical judgment of the physician, the termination is necessary for the protection of the woman’s life or health or in the event of a fetal anomaly for which there is not a reasonable likelihood of the fetus’s sustained survival outside the uterus without extraordinary medical measures.

(c)

d.

A physician assistant or an advanced practice registered

nurse may prescribe

nurse, but only for the purpose of prescribing

medication for the termination of

pregnancy

pregnancy,

including Mifeprex, Mifepristone, and Misoprostol.

(6) “Medical emergency” means a condition that, in the health-care practitioner’s reasonable medical judgment, so complicates the medical condition of a pregnant female that it necessitates the immediate abortion of her pregnancy to avert her death without first determining the probable post-fertilization age of the fetus. No condition may be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which she intends to result in her death.

(7)a. “Nonviable” means the unborn child has a lethal anomaly which renders it incompatible with life outside of the uterus because the health condition, with reasonable medical certainty, will result in the death of the unborn child upon birth or shortly thereafter.

b. “Nonviable” does not include a health condition with which the child may survive outside of the uterus with medical treatment.

(8) “Probable post-fertilization age of the fetus” means what, in reasonable medical judgment and will, with reasonable probability, be the post-fertilization age of the fetus at the time an abortion is planned to be performed or induced.

(9) “Reasonable medical judgment” means a medical judgment that would be made by a reasonably prudent health-care practitioner, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.

(10) “Post-fertilization age” means the age of the unborn child as calculated from the fusion of a human spermatozoon with a human ovum.

(11) “Department” means the Department of Health and Social Services.

§ 1791. Refusal to perform or submit to medical procedures.

(a) No person

shall

may

be required to perform or participate in medical procedures which result in the termination of

pregnancy;

pregnancy

and the refusal of any person to perform or participate in these medical procedures

shall

is

not

be

a basis for

any of the following:

civil

(1) Civil

liability to any

person, nor a

person.

(2) A

basis for any disciplinary or other recriminatory action against the person.

(b) No hospital, hospital

director

director,

or governing board

shall

may

be required to permit the termination of human pregnancies within its institution, and the refusal to permit such procedures

shall

is

not

be

grounds for civil liability to any person, nor a basis for any disciplinary or other recriminatory action against it by the State or any person.

(c) The refusal of any person to submit to an abortion or to give consent

shall

is

not

be

grounds for loss of any privileges or immunities to which such person would otherwise be entitled, nor shall submission to an abortion or the granting of consent be a condition precedent to the receipt of any public benefits.

§ 1792. Assistance or participation in an unlawful termination of human pregnancy.

No person shall, unless

Unless

the termination of a human pregnancy has been authorized

pursuant to §1790 of this title:

under this subchapter, no person may do any of the following:

(1) Sell or give, or cause to be sold or given, any drug, medicine, preparation,

instrument

instrument,

or device for the purpose of causing,

inducing

inducing,

or obtaining a termination of

such pregnancy; or

the pregnancy.

(2) Give advice,

counsel

counsel,

or information for the purpose of causing,

inducing

inducing, or obtaining a termination of

such pregnancy; or

the pregnancy.

(3) Knowingly assist or cause by any means whatsoever the obtaining or performing of a termination of

such

the

pregnancy.

§ 1793.

Residency requirements; exceptions [Repealed].

Determination of post-fertilization age.

Except in the case of a medical emergency, no abortion may be performed or induced, or be attempted to be performed or induced, unless the health-care practitioner performing or inducing the abortion has first made a determination of the probable post-fertilization age of the fetus or relied upon such a determination made by another health-care practitioner. In making this determination, the health-care practitioner shall make inquiries of the patient and perform or cause to be performed, medical examinations and tests as a reasonably prudent health-care practitioner, knowledgeable about the case and the medical conditions involved, would consider necessary to perform in making an accurate diagnosis with respect to post-fertilization age.

§ 1794.

Consent prior to termination of human pregnancy [Repealed].

Abortion of fetus of pain-capable, post-fertilization age prohibited.

(a) No person may perform or induce, or attempt to perform or induce, an abortion of an unborn child capable of feeling pain unless either of the following apply:

(1) The unborn child has a nonviable health condition.

(2) The abortion is necessary to prevent the death of the unborn child’s mother as follows:

a. No person may perform or induce, or attempt to perform or induce, an abortion when it has been determined, by the health-care practitioner performing or inducing or attempting to perform or induce the abortion or by another health-care practitioner upon whose determination that health-care practitioner relies, that the probable post-fertilization age of the fetus has reached the pain-capable post-fertilization age of 5 or more months, unless in reasonable medical judgment there exists a condition of the pregnant woman that, in reasonable medical judgment, so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death.

b. No condition may be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which she intends to result in her death.

(b) When performing or inducing an abortion upon a patient under subsection (a) of this section, the health-care practitioner shall terminate the pregnancy in the manner which, in reasonable medical judgment, provides the best opportunity for the fetus to survive, unless, in reasonable medical judgment, termination of the pregnancy in that manner would pose a greater risk of the death of the patient. No greater risk 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.

§ 1794A. Reporting.

(a) A health-care practitioner shall report all instances when the health-care practitioner performs or induces or attempts to perform or induce an abortion to the Department. The reporting must be on a schedule and on forms required by the Department but no less frequently than by December 31 each year. The reports must include all of the following information:

(1) Probable post-fertilization age, including either of the following:

a. If a determination of probable post-fertilization age was made, whether ultrasound was employed in making the determination, and the week of probable post-fertilization age determined.

b. If a determination of probable post-fertilization age was not made, the basis of the determination that a medical emergency existed.

(2) Method of abortion.

(3) If the probable post-fertilization age was determined to have reached the pain-capable post-fertilization age of 5 months or more, the basis of the determination under § 1794(a) of this title.

(4) If the probable post-fertilization age was determined to have reached the pain-capable post-fertilization age of 5 months or more, whether the method of abortion used was one that, in reasonable medical judgment, provided the best opportunity for the fetus to survive and, if such a method was not used, the basis of the determination that termination of the pregnancy in that manner would pose a greater risk of the death of the patient.

(b) Reports required by subsection (a) of this section may not contain the name or the address of the patient whose pregnancy was terminated, nor may the report contain any information identifying the patient. These reports must be maintained in strict confidence by the Department, may not be available for public inspection, and may not be made available except pursuant to court order.

(c)(1) Beginning June 30, 2027, and annually after that, the Department shall issue a public report providing statistics for the previous calendar year compiled from all of the reports covering that year submitted in accordance with this section for each of the items listed under subsection (a) of this section. Each report must provide the statistics for all previous calendar years from [the effective date of this Act], adjusted to reflect any additional information from late or corrected reports. The Department shall take care to ensure that none of the information included in the public reports could reasonably lead to the identification of any patient upon whom an abortion was performed or induced or attempted to be performed or induced.

(2) The report required under paragraph (c)(1) of this section must be sent to the President Pro Tempore of the Senate and the Speaker of the House of Representatives, with copies to all members of the General Assembly, the Governor, the Director and the Librarian of the Division of Legislative Services, and the Delaware Public Archives.

§1794B. Penalties.

(a) Any person who intentionally or recklessly performs or induces, or attempts to perform or induce, an abortion in violation of this subchapter shall be guilty of a class D felony. Any health-care practitioner who intentionally or recklessly performs or induces an abortion in violation of this subchapter is considered to have acted outside the scope of practice permitted by law or otherwise in breach of the standard of care owed to patients and is subject to discipline from the applicable licensure board for that conduct, including loss of professional license to practice.

(b) Any person, not subject to subsection (a) of this section, who intentionally or recklessly performs or induces an abortion in violation of this subchapter is considered to have engaged in the unauthorized practice of medicine in violation of this subchapter.

(c) In addition to the penalties set forth in subsections (a) and (b) of this section, a patient may seek a remedy otherwise available to such patient by applicable law.

(d) No penalty may be assessed against a patient upon whom an abortion is performed or induced or attempted to be performed or induced.

(e) A woman upon whom an abortion has been performed or induced in violation of this subchapter, or the father of the unborn child who was the subject of such an abortion, may maintain an action against the person who performed or induced the abortion in intentional or reckless violation of this subchapter for actual and punitive damages. A woman upon whom an abortion has been attempted in violation of this subchapter may maintain an action against the person who attempted to perform or induce the abortion in an intentional or reckless violation of this subchapter for actual and punitive damages. No damages may be awarded to a plaintiff if the pregnancy resulted from the plaintiff’s criminal conduct.

(f)(1) A cause of action for injunctive relief against any person who has intentionally or recklessly violated this subchapter may be maintained by any of the following:

a. A woman upon whom an abortion was performed or induced or attempted to be performed or induced in violation of this subchapter.

b. If a woman had not attained the age of 18 years at the time of the abortion or has died as a result of the abortion, the parent or guardian of the woman.

c. The Department of Justice.

(2) An injunction under this subsection (f) may prevent the abortion provider from performing or inducing or attempting to perform or induce further abortions in violation of this subchapter in this State.

(3) A cause of action under this subsection (f) may not be maintained by a plaintiff if the pregnancy resulted from the plaintiff's criminal conduct.

(g) If judgment is rendered in favor of the plaintiff in an action described in this section, the court shall also render judgment for reasonable attorney fees in favor of the plaintiff against the defendant.

(h) If judgment is rendered in favor of the defendant and the court finds that the plaintiff's suit was frivolous and brought in bad faith, the court shall also render judgment for reasonable attorney fees in favor of the defendant against the plaintiff.

(i) No damages or attorney fees may be assessed against the woman upon whom an abortion was performed or induced or attempted to be performed or induced except in accordance with subsection (h) of this section.

SYNOPSIS

Like Senate Bill No. 251, this Act protects the life of the unborn child at a time when the potential for the child to survive outside the womb increases, especially with the advancement of medical procedures. Specifically, this Act repeals the current sections of the Delaware Code relating to termination of human pregnancy and enacts The Pain-Capable Unborn Child Protection Act.

Senate Substitute No. 1 for Senate Bill No. 251 differs from Senate Bill No. 251 as follows:

• The definitions section is moved to § 1790A of Title 24 and the legislative findings section is moved to § 1790 of Title 24.

• Revises the definition of “nonviable” by clarifying that “nonviable” means the condition will result in the death of the unborn child upon birth or shortly thereafter and that “nonviable” does not include conditions with which the child may survive outside of the uterus with medical treatment.

• The prevention of the mother’s death is the only exception to performing an abortion without determining the probably post-fertilization age of a fetus in a medical emergency or to performing an abortion of an unborn child capable of feeling pain. Under SB 251, there were also exceptions in both situations if the abortion is necessary to avert a serious health risk to the unborn child’s mother.

• Makes corresponding changes to the definitions for Subchapter IX of Chapter 17 of Title 24.

• Changes the due date for the first report required under § 1794A of Title 24 from June 30, 2026, to June 30, 2027.

• Removes the severability provision because § 308 of Title 1 makes any provision in the Code severable, so that the invalidity of a provision does not affect provisions that can be given effect without the invalid provisions.

This Act also makes corresponding changes to § 1702 of Title 24, technical corrections to SB 251, and technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.

Author: Senator Richardson