A $10,000.00 bounty for vigilantes. Where on this Earth did that come from?
Bill prefiling for the Missouri General Assembly session started on December 1st.
Yet another bill, addressing a matter of great urgency for right wingnuts, filed today:
SECOND REGULAR SESSION
HOUSE BILL NO. 1987 [pdf]
101ST GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE COLEMAN (97).
3693H.01I DANA RADEMAN MILLER, Chief Clerk
AN ACT
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…(11) “Pregnancy”, the human female reproductive condition that:
(a) Begins with fertilization;
(b) Occurs when the woman is carrying the developing human offspring; and
(c) Is calculated from the first day of the woman’s last menstrual period;
(12) “Pregnant woman” or “pregnant women”, includes any individual who is pregnant, regardless of any gender identity that the pregnant person attempts to assert or claim…
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1. This section shall be known and may be cited as the “Born-Alive Abortion Survivors Protection Act”.
2. A child born alive during or after an abortion or an attempted abortion shall have all the rights, privileges, and immunities available to other persons, citizens, and residents of this state, including any other liveborn child.
3. Any health care provider licensed, registered, or certified in this state who is present at the time a child is born alive during or after an abortion or attempted abortion shall:
(1) Exercise the same degree of professional skill, care, and diligence to preserve the life and health of the child as a reasonably diligent and conscientious health care provider would render to any other child born alive at the same gestational age; and
(2) Ensure that the child born alive is immediately transported and admitted to a hospital following the exercise of skill, care, and diligence required under subdivision (1) of this subsection.
4. In addition to any criminal or administrative liability that may be incurred, person shall be civilly liable when he or she:
(1) Knowingly, recklessly, or negligently causes the death of a child who is born alive during or after an abortion or an attempted abortion;
(2) Knowingly fails to comply with any of the provisions of subsection 3 of this section if the person is a health care provider subject to such provisions;
(3) Knowingly performs or induces, or attempts to perform or induce, an unlawful abortion upon another person;
(4) Knowingly aids or abets another person to undergo a self-induced abortion or attempted self-induced abortion or to procure an unlawful abortion or attempted unlawful abortion;
(5) Knowingly, recklessly, or negligently supplies or makes available any instrument, device, medicine, drug, or any other means or substance for another person to undergo a self-induced abortion or attempted self-induced abortion or to procure an unlawful abortion or attempted unlawful abortion; or
(6) Knowingly incites, solicits, or otherwise uses speech or writing as an integral part of conduct in violation of a valid criminal statute to influence another person to undergo a self-induced abortion or attempted self-induced abortion or to procure an unlawful abortion or attempted unlawful abortion.
5. If injury or death arises out of or results from any circumstance under subsection 4 of this section to any of the following persons, including:
(1) A person upon whom the unlawful abortion or attempted unlawful abortion was performed or induced;
(2) A person who underwent a self-induced abortion or attempted self-induced abortion or who procured an unlawful abortion or attempted unlawful abortion;
(3) A child who was born alive during or after an abortion or attempted abortion; or
(4) An unborn child, a cause of action for personal injury, bodily injury, or wrongful death may be brought. In a cause of action for wrongful death, the spouse, partner, parents, siblings, and children of the deceased person, child, or unborn child shall be entitled to bring the action. Damages for injury or death may be recovered for including, but not limited to, any damages described in chapters 537 and 538 which are applicable; loss of future fertility; loss of love and companionship of the spouse, partner, parent, child, unborn child, or sibling; and for injury to or destruction of the spouse, partner, parent, child, unborn child, or sibling relationship in such amount as, under all the circumstances of the case, may be just. The court shall also award a prevailing plaintiff reasonable attorney’s fees and litigation costs including, but not limited to, expert witness fees and expenses as part of the costs. A defendant shall not plead or prove as a defense that the plaintiff assumed the risk of undergoing, or consented to undergo, a self-induced abortion or attempted self-induced abortion or that the plaintiff assumed the risk of procuring, or consented to procure, an unlawful abortion or attempted unlawful abortion. The fact that a plaintiff consented to undergo a self-induced abortion or attempted self-induced abortion or to procure an unlawful abortion or attempted unlawful abortion shall not, in and of itself, be considered evidence of contributory or comparative negligence. Any exculpatory agreement between or among parties that is related to undergoing a self-induced abortion or attempted self-induced abortion or to procuring an unlawful abortion or attempted unlawful abortion shall be against public policy and shall be void.
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188.202. 1. No federal act, law, executive order, administrative order, rule, or regulation shall infringe on the rights of the people of Missouri to:
(1) Protect state sovereignty and state taxpayers by restricting public funds, public facilities, and public employees from being used to perform, induce, or assist in an abortion, except as provided for in state statutes;
(2) Encourage childbirth over abortion in the use of the state’s public funds, public facilities, and public employees;
(3) Defend the religious beliefs or moral convictions of any person who, or entity that, does not want to be forced to directly or indirectly fund or participate in abortion;
(4) Prevent the state or its political subdivisions from being coerced, compelled, or commandeered by the federal government to enact, administer, or enforce a federal regulatory program that directly or indirectly funds abortion; and
(5) Prohibit the federal government from commanding or conscripting public officials of the state or its political subdivisions to enforce a federal regulatory program that directly or indirectly funds abortion.
2. In any action to enforce the provisions of sections 188.200 to 188.215 by a taxpayer under the provisions of section 188.220, a court of competent jurisdiction may order injunctive or other equitable relief, recovery of damages or other legal remedies, or both, as well as payment of reasonable attorney’s fees, costs, and expenses of the taxpayer. The relief and remedies set forth shall not be deemed exclusive and shall be in addition to any other relief or remedies permitted by law.
3. In addition to a cause of action brought by a taxpayer under section 188.220, the attorney general is also authorized to bring a cause of action to enforce the provisions of sections 188.200 to 188.215.
188.207. It shall be unlawful for any public funds to be expended to any abortion facility or to any affiliate or associate of such abortion facility.
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188.900. 1. The Missouri general assembly finds, according to contemporary medical research, that:
(1) Fetal heartbeat has become a key medical predictor that an unborn child wil reach live birth;
(2) Cardiac activity begins at a biologically identifiable moment in time, normally when the fetal heartbeat is formed in the gestational sac;
(3) The state of Missouri has compelling interests from the outset of a woman’s pregnancy in protecting the health of the woman and the life of the unborn child; and
(4) To make an informed choice about whether to continue her pregnancy, the pregnant woman has a compelling interest in knowing the likelihood of her unborn child surviving to full-term birth based on the presence of cardiac activity.
2. For the purposes of determining the presence of a fetal heartbeat under this section, “standard medical practice” includes employing the appropriate means of detecting the heartbeat based on the estimated gestational age of the unborn child and the condition of the woman and her pregnancy.
3. Except as provided under subsection 6 of this section, a physician shall not knowingly perform or induce an abortion on a pregnant woman unless the physician has determined, in accordance with this section, whether the woman’s unborn child has a detectable fetal heartbeat. In making such determination, the physician shall use a test that is:
(1) Consistent with the physician’s good faith and reasonable understanding of standard medical practice; and
(2) Appropriate for the estimated gestational age of the unborn child and the condition of the pregnant woman and her pregnancy.
4. A physician making a determination under subsection 3 of this section shall record in the pregnant woman’s medical record:
(1) The estimated gestational age of the unborn child;
(2) The method used to estimate the gestational age; and
(3) The test used for detecting a fetal heartbeat, including the date, time, and results of the test.
5. Except as provided under subsection 6 of this section, a physician shall not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child or failed to perform a test to detect a fetal heartbeat. A physician does not violate this subsection if the physician performed a test for a fetal heartbeat and did not detect a fetal heartbeat. This subsection does not affect:
(1) The provisions of this chapter that restrict or regulate an abortion by a particular method or during a particular stage of pregnancy; or
(2) Any other provision of state law that regulates or prohibits abortion.
6. Subsections 1 to 5 of this section do not apply if a physician believes a medical emergency exists that prevents compliance with this section. A physician who performs or induces an abortion when the physician believes a medical emergency exists shall make written notations in the pregnant woman’s medical record of:
(1) The physician’s belief that a medical emergency necessitated the abortion; and
(2) The medical conditions of the pregnant woman that prevented compliance with subsections 1 to 5 of this section.
A physician performing or inducing an abortion under this subsection shall maintain in the physician’s practice records a copy of the notations made under subdivisions (1) and
(2) of this subsection.
7. The requirements of this section shall not apply to an abortion performed at the behest of federal agencies, contractors, or employees that are carrying out duties under federal law if the enforcement of those requirements would violate the doctrines of preemption or intergovernmental immunity.
8. The provisions of this section shall not be construed to:
(1) Authorize the initiation of a cause of action against or the prosecution of a woman on whom an abortion is performed or induced or attempted to be performed or induced in violation of this section;
(2) Wholly or partly repeal, either expressly or by implication, any other statute that requires or prohibits abortion;
(3) Restrict a political subdivision from regulating or prohibiting abortion in a manner that is at least as stringent as the laws of this state; or
(4) Create or recognize a right to abortion before a fetal heartbeat is detected.
9. (1) Notwithstanding the provisions of any other law, the requirements of this section shall be enforced exclusively through the private civil actions described in subsection 10 of this section. No direct or indirect enforcement of this section shall be taken or threatened by this state, a political subdivision, a prosecuting attorney, or an executive or administrative officer or employee of this state or of a political subdivision against any person, and no violation of this section shall be used to justify or trigger the enforcement of any other law, except as provided in subsection 10 of this section.
(2) Subdivision (1) of this subsection shall not be construed to:
(a) Legalize the conduct prohibited by this section;
(b) Limit in any way or affect the availability of a remedy established under subsection 10 of this section; or
(c) Limit the enforceability of any other laws that regulate or prohibit abortion.
(3) Neither the state nor a political subdivision, prosecuting attorney, or an executive or administrative officer or employee of the state or of a political subdivision shall act in concert or participate with anyone who brings suit under subsection 10 of this section.
10. (1) Any person, except for the state, a political subdivision of the state, or an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:
(a) Performs or induces an abortion in violation of this chapter;
(b) Knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this chapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this chapter; or
(c) Intends to engage in the conduct described under paragraph (a) or (b) of this subdivision.
(2) If a claimant prevails in an action brought under this subsection, the court shall award:
(a) Injunctive relief sufficient to prevent the defendant from violating this chapter or engaging in acts that aid or abet violations of this chapter;
(b) Statutory damages in an amount of not less than ten thousand dollars for each abortion that the defendant performed or induced in violation of this chapter and for each abortion performed or induced in violation of this chapter that the defendant aided or abetted;
(c) Nominal and compensatory damages if the plaintiff has suffered harm from the defendant’s conduct including, but not limited to, loss of consortium and emotional distress; and
(d) Costs and attorney’s fees.
(3) Notwithstanding subdivision (2) of this subsection, a court shall not award relief under this subsection in response to a violation of paragraph (a) or (b) of subdivision (1) of this subsection if the defendant demonstrates that the defendant previously paid the full amount of statutory damages under paragraph (b) of subdivision (2) of this subsection in a previous action for that particular abortion performed or induced in violation of this chapter, or for the particular conduct that aided or abetted an abortion performed or induced in violation of this chapter.
(4) Notwithstanding any other provision of law, a person shall bring an action under this section within six years of the date the cause of action accrues.
(5) Notwithstanding any other provision of law, the following are not a defense to an action brought under this subsection:
(a) Ignorance or mistake of law;
(b) A defendant’s belief that the requirements of this chapter are unconstitutional or were unconstitutional;
(c) A defendant’s reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled at the time the defendant engaged in conduct that violates this chapter;
(d) A defendant’s reliance on any state or federal court decision that is not binding on the court in which the action has been brought;
(e) Nonmutual issue preclusion or nonmutual claim preclusion;
(f) The consent of the unborn child’s mother to the abortion; or
(g) Any claim that the enforcement of this subsection or the imposition of civil liability against the defendant will violate the constitutional rights of third parties, except as provided under subsection 11 of this section.
(6) It is an affirmative defense to an action brought under this subsection if:
(a) A defendant against whom an action is brought under paragraph (b) of subdivision (1) of this subsection reasonably believed, after conducting a reasonable investigation, that the physician performing or inducing the abortion had complied or would comply with this chapter; or
(b) A defendant against whom an action is brought under paragraph (c) of subdivision (1) of this subsection reasonably believed, after conducting a reasonable investigation, that the physician performing or inducing the abortion would comply with this chapter.
The defendant has the burden of proving an affirmative defense under paragraph (a) or
(b) of this subdivision by a preponderance of the evidence.
(7) This subsection shall not be construed to impose liability on any speech or conduct protected by the First Amendment of the Constitution of the United States, as made applicable to the states through the United States Supreme Court’s interpretation of the Fourteenth Amendment of the Constitution of the United States, or by Article I, Section 8 of the Constitution of Missouri.
(8) Neither the state nor a political subdivision, prosecuting attorney, or an executive or administrative officer or employee of the state or of a political subdivision shall act in concert or participate with anyone who brings suit under subsection 10 of this section or intervene in an action brought under this section. This subsection does not prohibit a person or entity described under this subsection from filing an amicus curiae brief in an action as long as that person or entity does not act in concert or participation with the plaintiff or plaintiffs who bring an action under this section.
(9) Notwithstanding any other provision of law, a court shall not award costs or attorney’s fees under the Missouri Rules of Civil Procedure or any other law to a defendant in an action brought under this subsection unless it is determined that the plaintiff’s claim was frivolous, malicious, or brought in bad faith.
(10) A court shall not find that an action brought under this subsection is frivolous, malicious, or brought in bad faith under subdivision (9) of this subsection if the plaintiff:
(a) Reasonably believed that the defendant performed or induced an abortion in violation of any requirement or provision of this chapter, engaged in conduct that aided or abetted the performance or inducement of such an abortion, or intended to engage in any such conduct, regardless of whether a previous court decision declared a requirement or provision of this chapter unconstitutional; or
(b) Brings suit seeking to overrule on appeal any previous court decision ruling that a requirement or provision of this chapter is unconstitutional.
(11) Notwithstanding any other provision of law, the provisions of sections 1.302 and 537.528 shall have no application to any civil action brought under this section.
(12) Notwithstanding any other provision of law, a civil action under this subsection shall not be brought by a person who impregnated the abortion patient through an act of rape, sexual assault, or incest.
(13) Notwithstanding any other provision of law, a civil action under this section shall not be brought against a person who performed or aided or abetted an abortion at the behest of federal agencies, contractors, or employees that are carrying out duties under federal law, if a prohibition on that abortion would violate the doctrines of preemption or intergovernmental immunity.
(14) Notwithstanding any other provision of law, a civil action under this section shall not be brought against a common carrier who transports a pregnant woman to an abortion provider, if the common carrier is unaware that the woman intends to abort her unborn child.
11. (1) A defendant against whom an action is brought under subsection 10 of this section may assert an affirmative defense to liability if:
(a) The defendant has standing to assert the rights of a woman or group of women seeking an abortion under the tests for third-party standing established by the Supreme Court of the United States; and
(b) The imposition of civil liability on the defendant will result in an undue burden on such abortion-seeking woman or group of abortion-seeking women.
The defendant has the burden of proving an affirmative defense under this subsection by a preponderance of evidence.
(2) The affirmative defense under subdivision (1) of this subsection is not available if the United States Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973) or Planned Parenthood v. Casey, 505 U.S. 833 (1992), regardless of whether the conduct on which the cause of action is based occurred before the Supreme Court overruled either of those decisions.
(3) Nothing in this section or chapter shall in any way limit or preclude a defendant from asserting the defendant’s personal constitutional rights as a defense to liability, and a court shall not award relief if the conduct for which the defendant has been sued was an exercise of state or federal constitutional rights that personally belong to the defendant.
(4) Nothing in this section or chapter shall limit or preclude a defendant from asserting the unconstitutionality of any provision of Missouri law as a defense to liability under subsection 10 of this section.
12. (1) Notwithstanding any other provision of law, a civil action brought under subsection 10 of this section shall be brought in:
(a) The county in which all or a substantial part of the events or omissions giving rise to the claim occurred;
(b) The county of residence for any one of the natural person defendants at the time the cause of action accrued;
(c) The county of the principal office in this state of any one of the defendants that is not a natural person; or
(d) The county of residence for the claimant if the claimant is a natural person residing in this state.
(2) If a civil action is brought under subsection 10 of this section in any one of the venues described under subdivision (1) of this subsection, the action shall not be transferred to a different venue without the written consent of all parties.
13. (1) Notwithstanding any other provision of law, the state shall have sovereign immunity, each of its political subdivisions shall have governmental immunity, and each officer and employee of the state or a political subdivision shall have official immunity in any action, claim, or counterclaim or any type of legal or equitable action that challenges the validity of any provision or application of this chapter, on constitutional grounds or otherwise, or that seeks to prevent or enjoin the state, its political subdivisions, or any officer or employee of this state or a political subdivision from enforcing any provision or application of this chapter, unless that immunity has been abrogated or preempted by federal law in a manner consistent with the Constitution of the United States.
(2) Notwithstanding any other provision of law, no provision of state law shall be construed to waive or abrogate an immunity described under subdivision (1) of this subsection unless it expressly waives or abrogates immunity by specifically referencing this section.
(3) Notwithstanding any other provision of law, no attorney representing the state, its political subdivisions, or any officer or employee of this state or a political subdivision is authorized or permitted to waive an immunity described in subdivision (1) of this subsection or take any action that would result in a waiver of such immunity.
(4) Notwithstanding any other provision of law, no court of this state shall have jurisdiction to consider any action, claim, or counterclaim that seeks declaratory or injunctive relief to prevent the state, its political subdivisions, any officer or employee of this state or a political subdivision, or any person from enforcing any provision or application of this chapter, or from filing a civil action under subsection 10 of this section.
(5) Nothing in this subsection or chapter shall be construed to prevent a litigant from asserting the invalidity or unconstitutionality of any provision or application of Missouri law as a defense to any action, claim, or counterclaim brought against that litigant.
14. (1) It is the intent of the general assembly that every provision, section, subsection, sentence, clause, phrase, and word in this chapter, and every application of the provisions in this chapter, is severable from each other.
(2) If any application of any provision in this chapter to any person, group of persons, or circumstances is found by a court to be invalid, preempted, unconstitutional, or to impose an undue burden, the remaining applications of that provision to all other persons and circumstances shall be severed and preserved, and shall remain in effect. All constitutionally valid applications of the provisions of law contained in this chapter shall be severed from any applications that a court finds to be invalid, preempted, unconstitutional, or to impose an undue burden on women seeking abortions, and the valid applications shall remain in force because it is the general assembly’s intent and priority that every valid application be allowed to stand alone. Even if a reviewing court finds a provision of this chapter to impose an undue burden in a large or substantial fraction of relevant cases, the applications that do not present an undue burden shall be severed from the remaining applications and shall remain in force and shall be treated as if the general assembly had enacted a statute limited to the persons, group of persons, or circumstances for which the statute’s application does not present an undue burden.
(3) The general assembly further declares that it would have enacted this chapter, and each provision, section, subsection, sentence, clause, phrase, and all constitutional applications of this chapter, irrespective of the fact that any provision, section, subsection, sentence, clause, phrase, or word or applications of this chapter were to be declared invalid, preempted, unconstitutional, or to impose an undue burden.
(4) If any provision of this chapter is found by any court to be unconstitutionally vague, the applications of that provision that do not present constitutional vagueness problems shall be severed and remain in force, consistent with the severability requirements of subdivisions (1), (2), and (3) of this subsection.
(5) No court shall decline to enforce the severability requirements of this subsection on the ground that severance would rewrite the statute or involve the court in legislative or lawmaking activity. A court that declines to enforce or enjoins a state official from enforcing a statutory provision does not rewrite a statute, as the statute continues to contain the same words as before the court’s decision. A judicial injunction or declaration of unconstitutionality:
(a) Is nothing more than an edict prohibiting enforcement that may subsequently be vacated by a later court if that court has a different understanding of the requirements of the Constitution of the United States or the Constitution of Missouri;
(b) Is not a formal amendment of the language in a statute; and
(c) No more rewrites a statute than a decision by the executive not to enforce a duly enacted statute in a limited and defined set of circumstances.
(6) If any state or federal court disregards the severability requirements of subdivisions (1), (2), (3), (4), and (5) of this subsection, and declares or finds any provision of this chapter facially unconstitutional when there are discrete applications of that provision that can be enforced against a person, group of persons, or circumstances without violating federal law, the federal or state constitution, or imposing an undue burden on women seeking abortions, that provision shall be interpreted, as a matter of state law, as if the general assembly had enacted a provision limited to the persons, group of persons, or circumstances for which the provision’s applications will not violate federal law, the federal or state constitution, or impose an undue burden on women seeking abortions, and every court shall adopt this saving construction of that provision until the court ruling that pronounced the provision facially unconstitutional is vacated or overruled.
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