79th Legislative Session _ 2004

Committee: House State Affairs
Thursday, February 05, 2004

                                            P - Present
                                            E - Excused
                                            A - Absent

Roll Call
P    Frost
P    Garnos
P    Hanson
P    Hargens
P    Hunhoff
P    Madsen
P    Michels
P    Nesselhuf
P    Olson (Mel)
P    Teupel
P    Wick
P    Rhoden, Vice-Chair
P    Peterson (Bill), Chair

OTHERS PRESENT: See Original Minutes

The meeting was called to order by Chairman Bill Peterson

         HB 1191: establish certain legislative findings, to reinstate the prohibition against certain acts causing the termination of an unborn human life, and to prescribe a penalty therefor.

Presented by:    Representative Matt McCaulley
Proponents:    Harold J. Cassidy, self, Ocean, NJ
        Nicole Osmundson, self, Sioux Falls
        Lisa Hartman, self, Dana Point, CA
        Teresa Oxsen, self, Norman, OK
        Thomas Sparks, MD, self, Baton Rouge, LA
        Martha Shuping, MD, self, Winston-New Salem,NC
        Trish Short, self, Baltimore, MD


        Leslie Unruh, self, Sioux Falls
        Travis Benson, Catholic Diocese Of Sioux Falls
        Lorraine Garibaldi, self, New York
        Rob Regier, SD Family Council, Sioux Falls
        Lisa Arnold, self, Louisville, KY
        Representative Don Van Etten
        Alecia Johnson, self, Pierre
Opponents:    Jennifer Ring, ACLU of The Dakotas (written testimony) (handout 1)
        Dr. Keith Hansen, USD School of Medicine (by phone)
        Dr. John Brannian, USD School of Medicine (by phone)
        Kate Looby, Planned Parenthood, Sioux Falls (handout 2)
        Neil Fulton, self, Pierre
        Greg Brewers, SD Advocacy Network
        Caitlin Collier, SDCADVSA and self
        Representative Stanford Adelstein

MOTION:     AMEND HB 1191

1191rd
     On the printed bill, delete everything after the enacting clause and insert:

"
     Section  1.  The Legislature finds that the State of South Dakota has a compelling and paramount interest in the preservation and protection of all human life within and subject to its jurisdiction and that the preservation and protection of human life applies to all human beings, born or unborn.

     Section 2. The Legislature finds that since neither constitutional law nor Supreme Court decision has resolved the question of the beginning of life, it is within the proper sphere of state legislative enactment to determine the question of fact in light of the best scientific and medical evidence. The Legislature finds that the life of a human being begins when the ovum is fertilized by male sperm. The Legislature finds that the explosion of knowledge derived from new recombinant DNA technologies over the past twenty-five years has reinforced the validity of the finding of this scientific fact.

     Section 3. The Legislature finds that, based upon the evidence derived from thirty years of legalized abortions in this country, the interests of pregnant mothers protected under the South Dakota Bill of Rights have been adversely affected as abortions terminate the constitutionally protected fundamental interest of the pregnant mother in her relationship with her child and abortions are performed without a truly informed or voluntary consent or knowing waiver of the woman's rights and interests. The Legislature finds that the state has a duty to protect the pregnant mother's fundamental interest in her relationship with her unborn child.


     Section 4. The Legislature finds that abortion procedures impose significant risks to the health and life of the pregnant mother, including subjecting women to significant risk of severe depression, suicidal ideation, suicide, attempted suicide, post traumatic stress disorders, adverse impact in the lives of women, physical injury, and a greater risk of death than risks associated with carrying the unborn child to full term and childbirth.

     Section 5. The Legislature finds that the guarantee of due process of law under the South Dakota Bill of Rights applies equally to born and unborn human beings and that there is no justification for the taking of a guiltless human life by the state or by any person within and subject to the jurisdiction of the state.

     Section 6. The Legislature finds that a pregnant mother possesses her own natural and inalienable right to life under the South Dakota Bill of Rights, and therefore has a right to seek treatment necessary to protect her own life, subject to the requirements imposed upon a doctor treating such pregnant mother set forth in this Act.

     Section 7. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

     No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being. Any licensed physician who provides health care to a pregnant woman shall, in all cases, make every effort to preserve both the life of the mother and the life of her unborn child. Medical treatment provided to the mother by a licensed physician which results in the accidental or unintentional injury or death of the unborn child is not a violation of this statute.

     Any violation of this section is a Class 5 felony.

          Section 8. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

     Nothing in this Act may be construed to prohibit the sale, use, prescription, or administration of a contraceptive measure, drug or chemical, if it is administered prior to the time when a pregnancy could be determined through conventional medical testing and if the contraceptive measure is sold, used, prescribed, or administered in accordance with manufacturer instructions.

     Section 9. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:



     Subject to the provisions of section 7 of this Act, no licensed physician who performs a medical procedure designed or intended to prevent the death of a pregnant mother is guilty of violating section 5 of this Act. Nothing in this Act may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty.

     Section 10. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

     Terms used in this Act mean:

             (1)    "Pregnant," the human female reproductive condition, of having a living unborn human being within her body throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and child birth;

             (2)    "Unborn human being," an individual living member of the species homo sapiens throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and childbirth;

             (3)    "Fertilization," that point in time when a male human sperm penetrates the zona pellucida of a female human ovum.

     Section 11. If any provision of this Act is found to be unconstitutional, the provision is severable; and the other provisions of this Act remain effective.

     Section 12. Nothing in this Act may be construed to repeal, by implication or otherwise, any provision not explicitly repealed.

     Section 13. If any provision of this Act is ever temporarily or permanently restrained or enjoined by judicial order, the provisions of chapters 34-23A and 22-17 shall be enforced. However, if such temporary or permanent restraining order or injunction is subsequently stayed or dissolved, or otherwise ceases to have effect, all provisions of this Act that are not restrained shall have full force and effect."


Moved by:    Michels
Second by:    Wick
Action:    Was not acted on.

MOTION:     SUBSTITUTE MOTION AMEND HB 1191

1191rb
     On the printed bill, delete everything after the enacting clause and insert:

"      Section 1. The Legislature finds that the State of South Dakota has a compelling and paramount interest in the preservation and protection of all human life within and subject to its jurisdiction under the Constitution of the United States and that the preservation and protection of human life applies to all human life, born or unborn.

     Section 2. The Legislature finds that it is within the proper sphere of state legislative enactment to determine the question of fetal viability in light of the best scientific and medical evidence. The Legislature therefor finds that unborn fetal viability begins after twenty-three weeks of gestation.

     Section 3. The Legislature finds that there is no justification for protecting an unborn human life in preference to the life of the mother if birth or continued pregnancy constitutes a clear and immediate threat of death to the mother or serious risk of substantial and irreversible impairment of a major bodily function.

     Section 4. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

     No person may administer to, prescribe for, or procure for any pregnant woman any medicine, drug, or other substance with the intent of causing or abetting the termination of an unborn human life after the twenty-third week of gestation unless it is necessary to preserve the life of the pregnant woman, or if there is a serious risk of substantial and irreversible impairment of a major bodily function. No person may use or employ any instrument or procedure with the intent of causing or abetting the termination of an unborn human life after the twenty-third week of gestation unless it is necessary to preserve the life of any pregnant woman or if there is a serious risk of substantial and irreversible impairment of a major bodily function.

     Any violation of this section is a Class 5 felony.

     Section 5. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

     No licensed physician who terminates an unborn human life in the exercise of reasonable medical judgment and after determining in good faith that such termination of the unborn human life is medically necessary to prevent the death of the pregnant woman or a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman is guilty of violating section 4 of this Act. However, any physician subject to this section shall execute a sworn affidavit of necessity justifying each termination. Any failure of a physician to comply with the provisions of this section constitutes unprofessional conduct and subjects the physician to the sanctions of § §  36-4- 29 and 36-4-30.

     Section 6. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:



     Terms used in this Act mean:

             (1)    "Pregnant," the human female reproductive condition, of having a developing unborn human life within her body after the fertilization of the ovum by male sperm;

             (2)    "Serious risk of the substantial and irreversible impairment of a major bodily function," any medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible physical impairment.

     Section 7. There is hereby appropriated from the state general fund the sum of one million dollars ($1,000,000), or so much thereof as may be necessary, to the Office of the Attorney General to defend the provisions of this Act against litigation brought to test its validity.

     Section 8. The attorney general shall approve vouchers and the state auditor shall draw warrants to pay expenditures authorized by this Act.

     Section 9. Any amounts appropriated in this Act not lawfully expended or obligated by June   30, 2007, shall revert in accordance with §   4-8-21.

     Section 10. If any provision of this Act is found to be invalid, the remaining provisions are severable."


Moved by:    Olson (Mel)
Second by:    Nesselhuf
Action:    Failed by roll call vote.(4-9-0-0)

Voting Yes:    Hanson, Hargens, Nesselhuf, Olson (Mel)

Voting No:    Frost, Garnos, Hunhoff, Madsen, Michels, Teupel, Wick, Rhoden, Peterson (Bill)

ORIGINAL MOTION:     AMEND HB 1191

1191rd
     On the printed bill, delete everything after the enacting clause and insert:

"
     Section  2.  The Legislature finds that the State of South Dakota has a compelling and paramount interest in the preservation and protection of all human life within and subject to its jurisdiction and that the preservation and protection of human life applies to all human beings, born or unborn.

     Section 2. The Legislature finds that since neither constitutional law nor Supreme Court decision

has resolved the question of the beginning of life, it is within the proper sphere of state legislative enactment to determine the question of fact in light of the best scientific and medical evidence. The Legislature finds that the life of a human being begins when the ovum is fertilized by male sperm. The Legislature finds that the explosion of knowledge derived from new recombinant DNA technologies over the past twenty-five years has reinforced the validity of the finding of this scientific fact.

     Section 3. The Legislature finds that, based upon the evidence derived from thirty years of legalized abortions in this country, the interests of pregnant mothers protected under the South Dakota Bill of Rights have been adversely affected as abortions terminate the constitutionally protected fundamental interest of the pregnant mother in her relationship with her child and abortions are performed without a truly informed or voluntary consent or knowing waiver of the woman's rights and interests. The Legislature finds that the state has a duty to protect the pregnant mother's fundamental interest in her relationship with her unborn child.

     Section 4. The Legislature finds that abortion procedures impose significant risks to the health and life of the pregnant mother, including subjecting women to significant risk of severe depression, suicidal ideation, suicide, attempted suicide, post traumatic stress disorders, adverse impact in the lives of women, physical injury, and a greater risk of death than risks associated with carrying the unborn child to full term and childbirth.

     Section 5. The Legislature finds that the guarantee of due process of law under the South Dakota Bill of Rights applies equally to born and unborn human beings and that there is no justification for the taking of a guiltless human life by the state or by any person within and subject to the jurisdiction of the state.

     Section 6. The Legislature finds that a pregnant mother possesses her own natural and inalienable right to life under the South Dakota Bill of Rights, and therefore has a right to seek treatment necessary to protect her own life, subject to the requirements imposed upon a doctor treating such pregnant mother set forth in this Act.

     Section 7. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

     No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being. Any licensed physician who provides health care to a pregnant woman shall, in all cases, make every effort to preserve both the life of the mother and the life of her unborn child. Medical treatment provided to the mother by a licensed physician which

results in the accidental or unintentional injury or death of the unborn child is not a violation of this statute.

     Any violation of this section is a Class 5 felony.

          Section 8. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

     Nothing in this Act may be construed to prohibit the sale, use, prescription, or administration of a contraceptive measure, drug or chemical, if it is administered prior to the time when a pregnancy could be determined through conventional medical testing and if the contraceptive measure is sold, used, prescribed, or administered in accordance with manufacturer instructions.

     Section 9. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

     Subject to the provisions of section 7 of this Act, no licensed physician who performs a medical procedure designed or intended to prevent the death of a pregnant mother is guilty of violating section 5 of this Act. Nothing in this Act may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty.

     Section 10. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

     Terms used in this Act mean:

             (1)    "Pregnant," the human female reproductive condition, of having a living unborn human being within her body throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and child birth;

             (2)    "Unborn human being," an individual living member of the species homo sapiens throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and childbirth;

             (3)    "Fertilization," that point in time when a male human sperm penetrates the zona pellucida of a female human ovum.

     Section 11. If any provision of this Act is found to be unconstitutional, the provision is severable; and the other provisions of this Act remain effective.

     Section 12. Nothing in this Act may be construed to repeal, by implication or otherwise, any provision not explicitly repealed.



     Section 13. If any provision of this Act is ever temporarily or permanently restrained or enjoined by judicial order, the provisions of chapters 34-23A and 22-17 shall be enforced. However, if such temporary or permanent restraining order or injunction is subsequently stayed or dissolved, or otherwise ceases to have effect, all provisions of this Act that are not restrained shall have full force and effect."

Moved by:    Michels
Second by:    Wick
Action:    Prevailed by voice vote.

MOTION:     AMEND HB 1191

1191re
     At the end of the previously adopted amendment (1191rd) insert the following:

"      Section 14. There is hereby appropriated from the state general fund the sum of one million dollars ($1,000,000), or so much thereof as may be necessary, to the Office of the Attorney General to defend the provisions of this Act against litigation brought to test its validity.

     Section 15. The attorney general shall approve vouchers and the state auditor shall draw warrants to pay expenditures authorized by this Act.

     Section 16. Any amounts appropriated in this Act not lawfully expended or obligated by June   30, 2007, shall revert in accordance with §   4-8-21.".


Moved by:    Olson (Mel)
Second by:    Nesselhuf
Action:    Failed by voice vote.

MOTION:     DO PASS HB 1191 AS AMENDED

Moved by:    Rhoden
Second by:    Hunhoff
Action:    Prevailed by roll call vote.(11-2-0-0)

Voting Yes:    Frost, Garnos, Hanson, Hargens, Hunhoff, Madsen, Michels, Teupel, Wick, Rhoden, Peterson (Bill)

Voting No:    Nesselhuf, Olson (Mel)


MOTION:     ADJOURN

Moved by:    Nesselhuf
Second by:    Hargens
Action:    Prevailed by voice vote.

Clara Shelbourn

____________________________

Committee Secretary
Bill Peterson, Chair


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