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INITIATION OF LEGISLATION

FULL TEXT OF THE LEGISLATIVE PROPOSAL

(Language added to the statute is shown in capital letters and deleted language is struck out with a line):

An initiation of legislation to amend 1931 PA 328, entitled “The Michigan penal code,” by amending the title and section 90h (MCL 750.90h), the title as amended by 2010 PA 107 and section 90h as added by 2011 PA 168.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

TITLE:

An act to revise, consolidate, codify, and add to the statutes relating to crimes; to define crimes and prescribe the penalties and remedies; to provide for restitution under certain circumstances; to provide for the competency of evidence at the trial of persons accused of crime; to provide immunity from prosecution for certain witnesses appearing at criminal trials; to provide for liability for damages; to provide for the powers and duties of certain state governmental officers and entities, and to repeal certain acts and parts of acts inconsistent with or contravening any of the provisions of this act.

Sec. 90h. (1) This section shall be known and may be cited as the “partial-birth abortion and DISMEMBERMENT ABORTION ban act”.

(2) Except as provided in subsection (3), a physician, an individual performing an act, task, or function under the delegatory authority of a physician, or any other individual who is not a physician or not otherwise legally authorized to perform an abortion who knowingly performs a partial-birth abortion or DISMEMBERMENT ABORTION and kills a human fetus is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $50,000.00, or both.

(3) It is not a violation of subsection (2) if in the physician’s reasonable medical judgment a partial-birth abortion or DISMEMBERMENT ABORTION is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury.

(4) The spouse of the mother at the time of the partial-birth abortion or DISMEMBERMENT ABORTION or either parent of the mother if the mother had not attained the age of 18 at the time of the partial-birth abortion or DISMEMBERMENT ABORTION may file a civil action against the physician or individual described in subsection (2) for a violation of this section unless the pregnancy is a result of the plaintiff’s criminal conduct or the plaintiff consented to the partial-birth abortion or DISMEMBERMENT ABORTION. A plaintiff who prevails in a civil action brought under this section may recover both of the following:

(a)   Actual damages, including damages for emotional distress.

(b)   Treble damages for the cost of the partial-birth abortion or DISMEMBERMENT ABORTION.

(5)   A woman who obtains or seeks to obtain a partial-birth abortion or DISMEMBERMENT ABORTION is not a conspirator to commit a violation of this section.

(6)   This section does not create a right to abortion.

(7)   Notwithstanding any other provision of this section, a person shall not perform an abortion that is prohibited by law.

(8)   Nothing in this section shall be construed to repeal or amend, explicitly or by implication, any provision of law prohibiting or regulating abortion, including, but not limited to, section 14, 15, 322, or 323.

(9) THE LEGISLATURE, EACH HOUSE OF THE LEGISLATURE AND A LEGISLATOR, MAY INTERVENE IN AN ACTION COMMENCED IN A COURT OF THIS STATE IF THE LEGISLATURE OR A HOUSE OF THE LEGISLATURE OR A LEGISLATOR CONSIDERS THE INTERVENTION NECESSARY TO PROTECT A RIGHT OR INTEREST OF THAT BODY OR INDIVIDUAL BECAUSE A PARTY TO THE ACTION CHALLENGES THE CONSTITUTIONALITY OR VALIDITY OF THIS SECTION. THE RIGHT TO INTERVENE UNDER THIS SUBSECTION EXISTS AT ANY STAGE OF THE PROCEEDING, AND THE LEGISLATURE, EACH HOUSE OF THE LEGISLATURE, AND A LEGISLATOR HAS THE SAME RIGHT TO PROSECUTE AN APPEAL, APPLY FOR REHEARING, OR TAKE ANY OTHER ACTION OR STEP THAT IS HAD OR POSSESSED BY A PARTY TO THE LITIGATION. THE RIGHT TO INTERVENE UNDER THIS SUBSECTION APPLIES TO A COURT PROCEEDING OCCURRING IN THIS STATE ON THE EFFECTIVE DATE OF THE AMENDATORY ACT THAT ADDED THIS SUBSECTION OR THAT IS LATER FILED IN A COURT IN THIS STATE. THIS SUBSECTION IS SELF-EXECUTING, BUT EACH HOUSE OF THE LEGISLATURE MAY ADOPT RULES OR POLICIES TO FACILITATE THE OPERATION OF THIS SUBSECTION. THIS SUBSECTION DOES NOT LIMIT A RIGHT OR DUTY OF THE ATTORNEY GENERAL AS PROVIDED BY LAW AND INTERVENTION UNDER THIS SUBSECTION IS NOT A WAIVER OF LEGISLATIVE IMMUNITY.

(10) (9)  As used in this section:

(A)   “DISMEMBERMENT ABORTION” MEANS AN ABORTION IN WHICH THE PHYSICIAN, AN INDIVIDUAL ACTING UNDER THE DELEGATORY AUTHORITY OF THE PHYSICIAN, OR ANY OTHER INDIVIDUAL PERFORMING THE ABORTION DELIBERATELY AND INTENTIONALLY USES ANY INSTRUMENT, DEVICE, OR OBJECT TO DISMEMBER A LIVING FETUS BY DISARTICULATING LIMBS OR DECAPITATING THE HEAD FROM THE FETAL TORSO AND REMOVING THE DISMEMBERED FETAL BODY PARTS FROM THE UTERUS REGARDLESS OF WHETHER THE FETAL BODY PARTS ARE REMOVED BY THE SAME INSTRUMENT, DEVICE, OR OBJECT OR BY SUCTION OR OTHER MEANS. DISMEMBERMENT ABORTION DOES NOT INCLUDE AN ABORTION THAT USES SUCTION TO DISMEMBER AND REMOVE A BODY OF A FETUS FROM THE UTERUS.

(B)   (a) “Partial-birth abortion” means an abortion in which the physician, an individual acting under the delegatory authority of the physician, or any other individual performing the abortion deliberately and intentionally vaginally delivers a living fetus until, in the case of a headfirst presentation, the entire fetal head is outside the body of the mother, or in the case of breech presentation, any part of the fetal trunk past the naval NAVEL is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus, and performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.

(C)   (b) “Physician” means an individual licensed by this state to engage in the practice of medicine or the practice of osteopathic medicine and surgery under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838.

Enacting section 1. (1) Every provision in this amendatory act and every application of the provisions in this amendatory act are severable from each other. If any application of a provision in this amendatory act to any person or group of persons or circumstances is found by a court to be invalid, the remainder of this amendatory act and the application of the amendatory act’s provisions to all other persons and circumstances shall not be affected. All constitutionally valid applications of this amendatory act shall be severed from any applications that a court finds to be invalid, leaving the valid applications in force, because it is the legislature’s intent and priority that the valid applications be allowed to stand alone. Even if a reviewing court finds a provision of this amendatory act invalid in a large or substantial fraction of relevant cases, the remaining valid application shall be severed and allowed to remain in force.

(2) The provisions of this amendatory act shall be construed, as a matter of state law, to be enforceable up to but no further than the maximum possible extent consistent with federal constitutional requirements, even if that construction is not readily apparent, as such constructions are authorized only to the extent necessary to save the amendatory act from judicial invalidation. If any court determines that any provision of this amendatory act is unconstitutionally vague, it shall interpret this amendatory act, as a matter of state law, in a manner that avoids the vagueness problem while enforcing the amendatory act’s provisions to the maximum possible extent consistent with federal constitutional requirements.