Comparison of the "Partial-Birth Abortion Ban"; Durbin & Boxer/Feinstein Alternatives

Side-by-Side Comparison of S. 1692, "Partial-Birth Abortion Ban Act of 1999" and Durbin and Boxer/Feinstein Alternatives

(October 13, 1999)

S. 1692, "Partial Birth Abortion Ban Act of 1999"

Durbin Alternative

Boxer/Feinstein Alternative

Nature of Ban

prohibits "partial-birth" abortions - no distinctions made between viable and non-viable fetuses; applies throughout pregnancy

prohibits post-viability abortions

prohibits post-viability abortions

Definitions

"partial-birth abortion" defined as one "in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery." Defines "vaginally delivers? before killing the fetus" as "deliberately and intentionally delivers into the vagina a living fetus, or a substantial portion thereof, for the purpose of performing a procedure the physician knows will kill the fetus, and kills the fetus."

not applicable

not applicable

Exceptions

for life only (exception for abortions "necessary to save the life of a mother whose life is endangered by a physical disorder, illness or injury.")

for life and for grievous injury to woman's physical health.

Grievous injury defined as "severely debilitating disease or impairment specifically caused by the pregnancy or an inability to provide necessary treatment for a life-threatening condition." Also allows for "medical emergency" exception but requires post-abortion certification specifying the condition establishing the emergency.

for life and health ("necessary to save life of the woman or to avert serious adverse health consequences")

Scienter

knowledge

intent

knowledge

Penalties

criminal (fine and/or imprisonment not more than 2 years)

civil penalties and/or notification to state Medical Board in order to effect suspension of medical license for first offense and revocation of license for second offense.

civil penalties and referral to state medical licensing authority for consideration of suspension of physician's license (for first violation) or revocation of license (for second violation)

Civil Cause of Action

allows (a)woman's husband to bring civil action, if he was married to woman at time of abortion, if the pregnancy is not the result of his criminal conduct, and if he did not consent to the abortion, and (b) a minor's parent to bring civil action if pregnancy not the result of parent's criminal conduct and if parent did not consent to the abortion

not applicable

not applicable

Certification Requirements

not applicable

Prior to performing abortion - except in medical emergency -- both attending physician and second, independent physician must certify that continuing pregnancy would threaten life of mother or risk grievous injury to her physical health (post-abortion certification required for "medical emergency"). Before filing action against doctor, the Attorney General (AG) or U.S. Attorney must certify to the court that 30 days written notice was given to Governor, state AG and state medical licensing board, and that he or she believes action by U.S. is in public interest and necessary to secure substantial justice.

Attorney General (AG) or US Attorney must certify to court that 30 days written notice was given to state AG before action was filed and that he or she believes that action by the U.S. is in public interest and necessary to secure substantial justice.

Medical Board Hearing

Allows physician to seek state Medical Board hearing to determine if procedure was necessary to save woman's life. Board's findings, regardless of outcome, are admissible at trial.

not applicable

not applicable

Regulatory Action

not applicable

Mandates HHS regulations requiring certification by both attending and independent physician that abortion was "medically necessary," and , if applicable, certification by attending physician of medical emergency - all under threat of federal perjury charges. (Also requires HHS regulations to ensure certification does not reveal woman's identity.) Mandates states and state medical licensing boards to adopt regulations for revocation or suspension of a license for violation of Act.

Mandates HHS regulations that require an attending physician to certify abortion was "medically necessary" and that ensure confidentiality of all certified information.

Immunity

woman cannot be prosecuted

woman cannot be prosecuted

woman cannot be prosecuted

Exemption

not applicable

bill shall not apply in states where there is a law in effect that "regulates, restricts, or prohibits [post-viability] abortions to the extent permitted by the [U.S.] Constitution"

not applicable