May 31, 2012, Introduced by Rep. Shaughnessy and referred to the Committee on Health Policy.


     A bill to amend 1931 PA 328, entitled


"The Michigan penal code,"


(MCL 750.1 to 750.568) by adding sections 213a and 324.




     Sec. 213a. (1) A person having actual knowledge that a female


individual is pregnant shall not do any of the following with the


intent to coerce her to have an abortion against her will:


     (a) Commit, attempt to commit, or maliciously threaten to


commit any of the following violations against her or any other




     (i) A violation of section 411h or section 411i.


     (ii) An assaultive crime. As used in this subparagraph,


"assaultive crime" means that term as defined in section 9a of


chapter X of the code of criminal procedure, 1927 PA 175, MCL




     (b) After being informed by a pregnant female that she does


not want to obtain an abortion, any of the following:


     (i) Discontinue, attempt to discontinue, or maliciously


threaten to discontinue support that the person has a legal


responsibility to provide or reduce that support to a level below


his or her legal responsibility.


     (ii) Withdraw, attempt to withdraw, or maliciously threaten to


withdraw from a contract or agreement or otherwise violate the


terms of that contract or agreement having previously entered into


a contract or other legally binding agreement to which the pregnant


female is a party or beneficiary.


     (iii) Discharge or threaten to discharge her from employment.


     (2) For purposes of subsection (1)(b), information that a


pregnant female does not want to obtain an abortion includes any


statement or act, including inaction, that would clearly


demonstrate to a reasonable person that she is unwilling to comply


with a request or demand to have an abortion.


     (3) A person who violates this section is guilty of a crime as




     (a) For a violation of subsection (1)(a), the person is guilty


of a crime punishable in the same manner as for the underlying


offense committed, attempted, or maliciously threatened.


     (b) Except as provided in subdivision (c), for a violation of


subsection (1)(b), the person is guilty of a misdemeanor punishable


by a fine of not more than $5,000.00.


     (c) If the person is the father or putative father of the


unborn child, the pregnant individual is less than 18 years of age


at the time of the violation, and the person is 18 years of age or


older at the time of the violation, the person is guilty of a


misdemeanor punishable by a fine of not more than $10,000.00.


     (4) This section does not prohibit the person from being


charged with, convicted of, or punished for any other violation of


law committed while violating this section.


     (5) The court may order a term of imprisonment imposed for


violating this section to be served consecutively to any other term


of imprisonment imposed for a violation of law committed while


violating this section.


     (6) As used in this section:


     (a) "Course of conduct" means a pattern of conduct composed of


a series of 2 or more separate noncontinuous acts evidencing a


continuity of purpose.


     (b) "Maliciously threaten" means to make 2 or more statements


or to engage in a course of conduct that would cause a reasonable


person to believe that the individual is likely to act in


accordance with the statements or the course of conduct.


Maliciously threaten does not include constitutionally protected


speech or any generalized statement regarding a lawful pregnancy




     (c) "Unborn child" means a live human being in utero


regardless of his or her gestational stage of development.


     Sec. 324. (1) The legislature makes the following findings:


     (a) There is substantial medical evidence that an unborn child


is capable of experiencing pain by 20 weeks after fertilization,


including all of the following:


     (i) That pain receptors (nociceptors) are present throughout


the body and are linked by functioning nerves to the brain's


thalamus and subcortical plate no later than 20 weeks post-




     (ii) That pain perception in adults is associated with


stimulation or ablation of the thalamus, rather than the cerebral


cortex. The level of functioning in the cerebral cortex of adults,


hydranencephalic children born with little or no cerebral cortex,


or the unborn child by 20 weeks' development is not recognized as


necessary to experiencing pain.


     (iii) That after 20 weeks' development, the unborn child reacts


to stimuli that would be recognized as painful if applied to


adults, and such stimuli applied to an unborn child are associated


with significant increases in stress hormones.


     (iv) For purposes of surgery on unborn children, fetal


anesthesia is routinely administered and is associated with a


decrease in stress hormones compared to when anesthesia is not


administered. Anesthesia is also required to prevent a thrashing


reaction by the unborn child to any invasive procedure performed


upon the child.


     (b) The policies enacted by this state have consistently been


oriented toward the protection and nurturing of unborn children,


despite the imposition of a regime of legal abortion by the United


States supreme court. Those policies include all of the following:


     (i) A continuously existing and enforceable, or partially


enforceable, criminal prohibition on abortion, except to preserve


the life of the mother, dating from 1846 to the present.


     (ii) A statute imposing heightened penalties for performing an


abortion upon an unborn child in later stages of pregnancy when the


mother has been able to perceive movement of the child ("a quick




     (iii) A statute providing an official state certificate of


stillbirth to families experiencing a stillbirth at 20 or more


weeks of pregnancy.


     (iv) A statute providing for separate criminal charges applying


to injury or death to an unborn child resulting from a criminal


assault upon the mother, regardless of the stage of her pregnancy.


     (v) A statute allowing for a wrongful death tort against an


individual whose criminal or negligent actions result in the death


of an unborn child.


     (vi) Laws recognizing the inheritance rights of unborn children


and securing their legal representation by a guardian ad litem


prior to their birth.


     (vii) A statute prohibiting lawsuits asserting the "wrongful


birth" of a child with disabilities on the basis that the child's


parents were denied an opportunity to abort the child due to a


failure to diagnose the disabilities before birth.


     (c) In addition to numerous criminal statutes prohibiting


assaultive actions that result in pain, injury, or death, Michigan


policies specifically prohibit actions that involve the purposeful


infliction of pain, including all of the following:


     (i) A prohibition against cruel or unusual punishment of


convicted criminals.


     (ii) A specific statutory prohibition against torture.


     (iii) A statutory prohibition against cruelty to animals and


animal fights and a statutory prescription for humane methods of


livestock slaughter for food production.


     (d) In light of the current state of scientific and medical


knowledge, and in consideration of this state's multitude of


policies that protect unborn children and prohibit pain-inflicting


activities, this state asserts a compelling state interest in


protecting the lives of unborn children capable of experiencing


pain in the same manner as a newborn child or an adult. This


compelling state interest is independent and separate from the


state's interest in protecting the lives or other individual


interests of unborn children at any other stage of pregnancy.


     (2) As used in this section:


     (a) "Abortion" means that term as defined in section 17015 of


the public health code, 1978 PA 368, MCL 333.17015.


     (b) "Fertilization" means the fusion of a human spermatozoon


with a human ovum.


     (c) "Medical emergency" means a condition that, on the basis


of a physician's good faith clinical judgment, so complicates the


medical condition of a pregnant individual as to necessitate the


immediate abortion of her pregnancy to avert her death or


necessitates immediate treatment of a physical disorder, physical


illness, or physical injury in a hospital or other emergency care


facility, not including psychological or emotional conditions. A


medical emergency does not include a condition that is based on a


claim or diagnosis that the pregnant individual will engage in


conduct that she intends to result in her death.


     (d) "Probable postfertilization age" means the expected


postfertilization age of the unborn child at the time an abortion


is planned to be performed as determined by the good faith clinical


judgment of the attending physician.


     (e) "Unborn child" means an individual organism of the species


homo sapiens from fertilization until live birth.


     (3) Prior to performing an abortion, a physician shall make a


determination of the probable postfertilization age of the unborn


child consistent with the accepted standard of care for making that


determination, except in the case of a medical emergency.


     (4) A person shall not perform or attempt to perform an


abortion upon a pregnant individual if it is determined that the


unborn child has a probable postfertilization age of 20 or more


weeks, unless in the reasonable clinical judgment of a physician


the abortion is necessary to avert the pregnant individual's death.


     (5) A person who violates this section is guilty of a felony


punishable by imprisonment for not more than 15 years or a fine of


not more than $7,500.00, or both.


     (6) This section does not apply to actions taken by a pregnant




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


     (8) Notwithstanding any other provision of this section, a


person shall not perform an abortion that is prohibited by law.


     (9) This act shall not be construed to repeal by implication


or otherwise, or impair any future enforcement of, section 14, 15,


322, or 323, or any other provision of law regulating or


restricting abortion.


     (10) This section shall be known and may be cited as the


"pain-capable unborn child protection act".


     Enacting section 1. This amendatory act takes effect January


1, 2013.