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SB-1301 Reproductive Privacy Act.(2001-2002)

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SB1301:v96#DOCUMENT

Senate Bill No. 1301
CHAPTER 385

An act to amend Section 2253 of the Business and Professions Code, to add Article 2.5 (commencing with Section 123460) to Chapter 2 of Part 2 of Division 106 of, and to repeal Sections 123400, 123405, 123407, 123410, 123415, and 123430 of, the Health and Safety Code, relating to reproductive privacy.

[ Filed with Secretary of State  September 06, 2002. Approved by Governor  September 05, 2002. ]

LEGISLATIVE COUNSEL'S DIGEST


SB 1301, Kuehl. Reproductive Privacy Act.
(1) Existing statutory law, the Therapeutic Abortion Act, contains various provisions regarding abortion, including a requirement that an abortion may only be performed by the holder of a physician’s and surgeon’s certificate, under specified conditions. The act also includes requirements that prior approval be obtained for each abortion by a committee of medical staff, with specified membership, who must determine either that continuation of the pregnancy would impair the physical or mental health of the mother, or that the pregnancy resulted from rape or incest. Existing law defines “mental health” for these purposes.
Certain provisions of the act, including, but not limited to, the above requirements relating to medical committee approval for abortions, and the statutory definition of mental health, have been held unconstitutional by the courts.
This bill would delete the above provisions of the Therapeutic Abortion Act, among others, including the name of the act. The bill would enact the Reproductive Privacy Act, which would provide that every individual possesses a fundamental right of privacy with respect to reproductive decisions, including (A) the fundamental right to choose or refuse birth control, and (B) the fundamental right to choose to bear a child or obtain an abortion.
This bill would provide that the state shall not deny or interfere with a woman’s fundamental right to choose to bear a child or obtain an abortion prior to viability of the fetus, as defined, or when necessary to protect her life or health. The bill would specify the circumstances under which the performance of an abortion is deemed unauthorized.
(2) Under existing law, the procuring or aiding, abetting, attempting, agreeing, or offering to procure an unauthorized abortion constitutes unprofessional conduct of a licensee under the Medical Practice Act, absent compliance with the Therapeutic Abortion Act.
This bill would instead deem it unprofessional conduct to fail to comply with the Reproductive Privacy Act in connection with the above activities.
(3) Under existing law, a person is criminally liable, and subject to possible imprisonment, if he or she performs or assists in performing a surgical abortion if he or she does not have a valid, unrevoked, and unsuspended license to practice as a physician and surgeon, or other certificate that authorizes him or her to perform or assist in performing a surgical abortion.
This bill would instead provide that a person is criminally liable, and subject to possible imprisonment, if he or she performs or assists in performing a surgical abortion if he or she does not have a valid, unrevoked, and unsuspended license to practice as a physician and surgeon, or if he or she assists in performing a surgical abortion without a valid, unrevoked, and unsuspended license or certificate obtained in accordance with some other provision of law that authorizes him or her to perform the functions necessary to assist in performing a surgical abortion. This bill would also create a state-mandated local program by extending criminal liability to a person who performs or assists in performing a nonsurgical abortion without the appropriate licensing or certification. (4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.

The people of the State of California do enact as follows:


SECTION 1.

 Section 2253 of the Business and Professions Code is amended to read:

2253.
 (a) Failure to comply with the Reproductive Privacy Act (Article 2.5 (commencing with Section 123460) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code) in performing, assisting, procuring or aiding, abetting, attempting, agreeing, or offering to procure an illegal abortion constitutes unprofessional conduct.
(b) (1) A person is subject to Sections 2052 and 2053 if he or she performs or assists in performing a surgical abortion, and at the time of so doing, does not have a valid, unrevoked, and unsuspended license to practice as a physician and surgeon as provided in this chapter, or if he or she assists in performing a surgical abortion and does not have a valid, unrevoked, and unsuspended license or certificate obtained in accordance with some other provision of law that authorizes him or her to perform the functions necessary to assist in performing a surgical abortion.
(2) A person is subject to Sections 2052 and 2053 if he or she performs or assists in performing a nonsurgical abortion, and at the time of so doing, does not have a valid, unrevoked, and unsuspended license to practice as a physician and surgeon as provided in this chapter, or does not have a valid, unrevoked, and unsuspended license or certificate obtained in accordance with some other provision of law that authorizes him or her to perform or assist in performing the functions necessary for a nonsurgical abortion.
(c) For purposes of this section, “nonsurgical abortion” includes termination of pregnancy through the use of pharmacological agents.

SEC. 2.

 Section 123400 of the Health and Safety Code is repealed.

SEC. 3.

 Section 123405 of the Health and Safety Code is repealed.

SEC. 4.

 Section 123407 of the Health and Safety Code is repealed.

SEC. 5.

 Section 123410 of the Health and Safety Code is repealed.

SEC. 6.

 Section 123415 of the Health and Safety Code is repealed.

SEC. 7.

 Section 123430 of the Health and Safety Code is repealed.

SEC. 8.

 Article 2.5 (commencing with Section 123460) is added to Chapter 2 of Part 2 of Division 106 of the Health and Safety Code, to read:
Article  2.5. Reproductive Privacy Act

123460.
 This article shall be known and may be cited as the Reproductive Privacy Act.

123462.
 The Legislature finds and declares that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions. Accordingly, it is the public policy of the State of California that:
(a) Every individual has the fundamental right to choose or refuse birth control.
(b) Every woman has the fundamental right to choose to bear a child or to choose and to obtain an abortion, except as specifically limited by this article.
(c) The state shall not deny or interfere with a woman’s fundamental right to choose to bear a child or to choose to obtain an abortion, except as specifically permitted by this article.

123464.
 The following definitions shall apply for purposes of this chapter:
(a) “Abortion” means any medical treatment intended to induce the termination of a pregnancy except for the purpose of producing a live birth.
(b) “Pregnancy” means the human reproductive process, beginning with the implantation of an embryo.
(c) “State” means the State of California, and every county, city, town and municipal corporation, and quasi-municipal corporation in the state.
(d) “Viability” means the point in a pregnancy when, in the good faith medical judgment of a physician, on the particular facts of the case before that physician, there is a reasonable likelihood of the fetus’s sustained survival outside the uterus without the application of extraordinary medical measures.

123466.
 The state may not deny or interfere with a woman’s right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman.

123468.
 The performance of an abortion is unauthorized if either of the following is true:
(a) The person performing or assisting in performing the abortion is not a health care provider authorized to perform or assist in performing an abortion pursuant to Section 2253 of the Business and Professions Code.
(b) The abortion is performed on a viable fetus, and both of the following are established:
(1) In the good faith medical judgment of the physician, the fetus was viable.
(2) In the good faith medical judgment of the physician, continuation of the pregnancy posed no risk to life or health of the pregnant woman.

SEC. 9.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.