MS Code § 41-41-191 (2020)
2020 Mississippi Code|Title 41 - Public Health|Chapter 41 - Surgical or Medical Procedures; Consents|Gestational Age Act|§ 41-41-191. Gestational Age Act; legislative findings and purpose; definitions; abortion limited to fifteen weeks' gestation; exceptions; requisite report; reporting forms; professional sanctions; civil penalties; additional enforcement; construction; severability; right to intervene if constitutionality challenged

  This sectionshall be known and cited as the "Gestational Age Act."   Legislative findingsand purpose.The Legislature makes the following findings of factand incorporates them herein by reference:   The United Statesis one (1) of only seven (7) nations in the world that permits nontherapeuticor elective abortion-on-demand after the twentieth week of gestation.In fact, fully seventy-five percent (75%) of all nations do not permitabortion after twelve (12) weeks' gestation, except (in mostinstances) to save the life and to preserve the physical health ofthe mother.    1. Between five(5) and six (6) weeks' gestation, an unborn human being'sheart begins beating.   2. An unborn humanbeing begins to move about in the womb at approximately eight (8)weeks' gestation.   3. At nine (9) weeks'gestation, all basic physiological functions are present. Teeth andeyes are present, as well as external genitalia.   4. An unborn humanbeing's vital organs begin to function at ten (10) weeks'gestation. Hair, fingernails, and toenails also begin to form.   5. At eleven (11)weeks' gestation, an unborn human being's diaphragmis developing, and he or she may even hiccup. He or she is beginningto move about freely in the womb.   6. At twelve (12)weeks' gestation, an unborn human being can open and closehis or her fingers, starts to make sucking motions, and senses stimulationfrom the world outside the womb. Importantly, he or she has takenon "the human form" in all relevant aspects. Gonzalesv. Carhart, 550 U.S. 124, 160 (2007).   7. The Supreme Courthas long recognized that the State of Mississippi has an "importantand legitimate interest in protecting the potentiality of human life," Roe v. Wade, 410 U.S. 113, 162 (1973), and specifically that "thestate has an interest in protecting the life of the unborn."Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.833, 873 (1992).   8. The majorityof abortion procedures performed after fifteen (15) weeks'gestation are dilation and evacuation procedures which involve theuse of surgical instruments to crush and tear the unborn child apartbefore removing the pieces of the dead child from the womb. The Legislaturefinds that the intentional commitment of such acts for nontherapeuticor elective reasons is a barbaric practice, dangerous for the maternalpatient, and demeaning to the medical profession.   9. Most obstetriciansand gynecologists practicing in the State of Mississippi do not offeror perform nontherapeutic or elective abortions. Even fewer offeror perform the dilation and evacuation abortion procedure even thoughit is within their scope of practice.    Medical and otherauthorities now know more about human prenatal development than everbefore including that:   Abortion carriessignificant physical and psychological risks to the maternal patient,and these physical and psychological risks increase with gestationalage. Specifically, in abortions performed after eight (8) weeks'gestation, the relative physical and psychological risks escalateexponentially as gestational age increases. L. Bartlett et al., Riskfactors for legal induced abortion mortality in the United States,Obstetrics and Gynecology 103(4):729 (2004).   Importantly,as the second trimester progresses, in the vast majority of uncomplicatedpregnancies, the maternal health risks of undergoing an abortion aregreater than the risks of carrying a pregnancy to term.   Medical complicationsfrom dilation and evacuation abortions include, but are not limitedto: pelvic infection; incomplete abortions (retained tissue); bloodclots; heavy bleeding or hemorrhage; laceration, tear, or other injuryto the cervix; puncture, laceration, tear, or other injury to theuterus; injury to the bowel or bladder; depression; anxiety; substanceabuse; and other emotional or psychological problems. Further, inabortions performed after fifteen (15) weeks' gestation, thereis a higher risk of requiring a hysterectomy, other reparative surgery,or blood transfusion.   The State ofMississippi also has "legitimate interests from the outsetof pregnancy in protecting the health of women." Planned Parenthoodof Southeastern Pennsylvania v. Casey, 505 U.S. 833, 847 (1992), asthe "medical, emotional, and psychological consequences ofabortion are serious and can be lasting …" H.L. v. Matheson,450 U.S. 398, 411 (1981).     Based on thefindings in paragraph (a) of this subsection, it is the intent ofthe Legislature, through this section and any regulations and policiespromulgated hereunder, to restrict the practice of nontherapeuticor elective abortion to the period up to the fifteenth week of gestation.     Definitions.As used inthis section:   "Abortion"means the use or prescription of an instrument, medicine, drug, orother substance or device with the intent to terminate a clinicallydiagnosable pregnancy for reasons other than to increase the probabilityof a live birth, to preserve the life or health of the unborn humanbeing, to terminate an ectopic pregnancy, or to remove a dead unbornhuman being.   "Attemptto perform or induce an abortion" means to do or omit anythingthat, under the circumstances as the person believes them to be, isan act or omission that constitutes a substantial step in a courseof conduct planned to culminate in the performance or induction ofan abortion in violation of this section.   "Conception"means the fusion of human spermatozoon with a human ovum.   "Department"means the Mississippi State Department of Health.   "Gestation"means the time that has elapsed since the first day of the woman'slast menstrual period.   "Gestationalage" or "probable gestation age" means the ageof an unborn human being as calculated from the first day of the lastmenstrual period of the pregnant woman.   "Humanbeing" means an individual member of the species Homo sapiens,from and after the point of conception.   "Severe fetal abnormality" means a life-threatening physical condition that, in reasonable medical judgment, regardless of the provision of life-saving medical treatment, is incompatible with life outside the womb.   "Majorbodily function" includes, but is not limited to, functionsof the immune system, normal cell growth, and digestive, bowel, bladder,neurological, brain, respiratory, circulatory, endocrine, and reproductivefunctions.   "Medicalemergency" means a condition in which, on the basis of thephysician's good faith clinical judgment, an abortion is necessaryto preserve the life of a pregnant woman whose life is endangeredby a physical disorder, physical illness, or physical injury, includinga life-endangering physical condition arising from the pregnancy itself,or when the continuation of the pregnancy will create a serious riskof substantial and irreversible impairment of a major bodily function.   "Physician"or "referring physician" means a person licensed topractice medicine in the State of Mississippi.     Abortion limited to fifteen (15)weeks' gestation except in medical emergency and in cases ofsevere fetal abnormality.   Except in a medicalemergency or in the case of a severe fetal abnormality, a person shallnot perform, induce, or attempt to perform or induce an abortion unlessthe physician or the referring physician has first made a determinationof the probable gestational age of the unborn human being and documentedthat gestational age in the maternal patient's chart and, ifrequired, in a report to be filed with the department as set forthin paragraph (c) of this subsection. The determination of probablegestational age shall be made according to standard medical practicesand techniques used in the community.   Except in a medicalemergency or in the case of a severe fetal abnormality, a person shallnot intentionally or knowingly perform, induce, or attempt to performor induce an abortion of an unborn human being if the probable gestationalage of the unborn human being has been determined to be greater thanfifteen (15) weeks.   In every casein which a physician performs or induces an abortion on an unbornhuman being whose gestational age is greater than fifteen (15) weeks,the physician shall within fifteen (15) days of the abortion causeto be filed with the department, on a form supplied by the department,a report containing the following information:   Date the abortionwas performed;   Specific methodof abortion used;   The probablegestational age of the unborn human being and the method used to calculategestational age;   A statement declaringthat the abortion was necessary to preserve the life or physical healthof the maternal patient;   Specific medicalindications supporting the abortion; and   Probable healthconsequences of the abortion and specific abortion method used.    The physician shall sign the form as his or her attestation under oath that the information stated thereon is true and correct to the best of his or her knowledge.    Reports requiredand submitted under this subsection (4) shall not containthe name of the maternal patient upon whom the abortion was performedor any other information or identifiers that would make it possibleto identify, in any manner or under any circumstances, a woman whoobtained or sought to obtain an abortion.     Reporting forms.Thedepartment shall create the forms required by this section withinthirty (30) days after March 19, 2018. No provisionof this section requiring the reporting of information on forms publishedby the department shall be applicable until ten (10) days after therequisite forms have been made available or March 19, 2018, whichever is later.   Professional sanctions and civilpenalties. (a) A physician whointentionally or knowingly violates the prohibition in subsection(4) of this section commits an act of unprofessional conduct and hisor her license to practice medicine in the State of Mississippi shallbe suspended or revoked pursuant to action by the Mississippi StateBoard of Medical Licensure.   Additional enforcement. The Attorney General shall have authority to bring an action in lawor equity to enforce the provisions of this section on behalf of theDirector of the Mississippi State Department of Health or the MississippiState Board of Medical Licensure. The Mississippi State Board of MedicalLicensure shall also have authority to bring such action on its ownbehalf.   Construction.Nothing inthis section shall be construed as creating or recognizing a rightto abortion or as altering generally accepted medical standards. Itis not the intention of this section to make lawful an abortion thatis otherwise unlawful. An abortion that complies with this section,but violates any other state law, is unlawful. An abortion that complieswith another state law, but violates this section is unlawful.   Severability. (a) It is the intentof the Legislature that every provision of this section shall operatewith equal force and shall be severable one from the other and that,in the event that any provision of this section shall be held invalidor unenforceable by a court of competent jurisdiction, said provisionshall be deemed severable and the remaining provisions of this sectiondeemed fully enforceable.   Right of intervention.The Legislature, through one or more sponsors of this section duly appointedby resolution of their respective chamber, may intervene as a matterof right in any case in which the constitutionality of this sectionis challenged. The Governor may also intervene as a matter of rightin any case in which the constitutionality of this section is challenged.    A physician whoknowingly or intentionally delivers to the department any report requiredby subsection (4)(c) of this section and known by him or her to befalse shall be subject to a civil penalty or fine up to Five HundredDollars ($500.00) per violation imposed by the department.   In the eventthat any provision of this section shall be held invalid or unenforceableby a court of competent jurisdiction, Sections 41-41-131 through 41-41-145shall remain in effect. If some or all of the provisions of this sectionare ever temporarily or permanently restrained or enjoined by judicialorder, all other provisions of Mississippi law regulating or restrictingabortion shall be enforced as though the restrained or enjoined provisionshad not been adopted; however, whenever the temporary or permanentrestraining order or injunction is stayed or dissolved, or otherwiseceases to have effect, the provisions of this section shall have fullforce and effect.   Mindful of Leavittv. Jane L., 518 U.S. 137 (1996), regarding the context of determiningthe severability of a state section of law regulating abortion, theUnited States Supreme Court held that an explicit statement of legislativeintent is controlling. Accordingly, it is the intent of the Legislaturethat every provision, section, subsection, paragraph, sentence, clause,phrase or word in this section and every application of the provisionsin this section is severable from each other. If any application ofany provision in this section to any person, group of persons, orcircumstances is found by a competent court to be invalid, the remainingapplications of that provision to all other persons and circumstancesshall be severed and may not be affected. All constitutionally validapplications of this section shall be severed from any applicationsthat a court finds to be invalid, leaving the valid applications inforce, because it is the Legislature's intent and prioritythat the valid applications be allowed to stand alone. Even if a reviewingcourt finds a provision of this statute to impose an undue burdenin a large or substantial fraction of relevant cases, the applicationsthat do not represent an undue burden shall be severed from the remainingprovisions and shall remain in force, and shall be treated as if theLegislature had enacted a section limited to the persons, group ofpersons, or circumstances for which the section's applicationdoes not present an undue burden. The Legislature further declaresthat it would have passed this section and each provision, section,subsection, paragraph, sentence, clause, phrase or word, and all constitutionalapplications of this section, without regard to the fact that anyprovision, section, subsection, paragraph, sentence, clause, phraseor word, or applications of this section, were to be declared unconstitutionalor to represent an undue burden.   If this sectionis found by any competent court to be invalid or to impose an undueburden as applied to any person, group of persons, or circumstances,the prohibition shall apply to that person or group of persons orcircumstances on the earliest date on which this section can be constitutionallyapplied.   If any provisionsof this section are found by a competent court to be unconstitutionallyvague, then the applications of the provision that do not presentconstitutional vagueness problems shall be severed and remain in force.