Text of MO HB 1987 (2022)

SECOND REGULAR SESSION HOUSE BILL NO. 1987 101ST GENERAL ASSEMBLY INTRODUCED BY REPRESENTATIVE COLEMAN (97). 3693H.01I DANA RADEMAN MILLER, Chief Clerk AN ACT To repeal sections 188.015, 188.026, 188.027, 188.035, 188.052, 188.056, 188.057, 188.058, 188.075, 188.375, 208.152, 208.153, 208.164, and 208.659, RSMo, and to enact in lieu thereof fourteen new sections relating to abortion, with penalty provisions. Be it enacted by the General Assembly of the state of Missouri, as follows: Section A. Sections 188.015, 188.026, 188.027, 188.035, 188.052, 188.056, 188.057, 2 188.058, 188.075, 188.375, 208.152, 208.153, 208.164, and 208.659, RSMo, are repealed and 3 fourteen new sections enacted in lieu thereof, to be known as sections 188.015, 188.026, 4 188.027, 188.035, 188.052, 188.075, 188.202, 188.207, 188.375, 188.900, 208.152, 208.153, 5 208.164, and 208.659, to read as follows: 188.015. As used in this chapter, the following terms mean: 2 (1) "Abortion": 3 (a) The act of using or prescribing any instrument, device, medicine, drug, or any 4 other means or substance with the intent to destroy the life of an embryo or fetus in his or her 5 mother's womb; or 6 (b) The intentional termination of the pregnancy of a mother by using or prescribing 7 any instrument, device, medicine, drug, or other means or substance with an intention other 8 than to increase the probability of a live birth or to remove a dead unborn child; 9 (2) "Abortion facility", a clinic, physician's office, or any other place or facility in 10 which abortions are performed or induced other than a hospital; 11 (3) "Conception", the fertilization of the ovum of a female by a sperm of a male; 12 (4) "Department", the department of health and senior services; 13 (5) "Down Syndrome", the same meaning as defined in section 191.923; EXPLANATION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is intended to be omitted from the law. Matter in bold-face type in the above bill is proposed language. 14 (6) "Fetal heartbeat", cardiac activity or the steady and repetitive rhythmic 15 contraction of the fetal heartbeat within the gestational sac; 16 (7) "Gestational age", length of pregnancy as measured from the first day of the 17 woman's last menstrual period; 18 (8) "Gestational sac", the structure comprising the extraembryonic membranes 19 that envelop the unborn child and that is typically visible by ultrasound after the fourth 20 week of pregnancy; 21 [(7)] (9) "Medical emergency", a condition which, based on reasonable medical 22 judgment, so complicates the medical condition of a pregnant woman as to necessitate the 23 immediate abortion of her pregnancy to avert the death of the pregnant woman or for which a 24 delay will create a serious risk of substantial and irreversible physical impairment of a major 25 bodily function of the pregnant woman; 26 [(8)] (10) "Physician", any person licensed to practice medicine in this state by the 27 state board of registration for the healing arts; 28 (11) "Pregnancy", the human female reproductive condition that: 29 (a) Begins with fertilization; 30 (b) Occurs when the woman is carrying the developing human offspring; and 31 (c) Is calculated from the first day of the woman's last menstrual period; 32 (12) "Pregnant woman" or "pregnant women", includes any individual who is 33 pregnant, regardless of any gender identity that the pregnant person attempts to assert 34 or claim; 35 [(9)] (13) "Reasonable medical judgment", a medical judgment that would be made 36 by a reasonably prudent physician, knowledgeable about the case and the treatment 37 possibilities with respect to the medical conditions involved; 38 [(10)] (14) "Unborn child", the offspring of human beings from the moment of 39 conception until birth and at every stage of its biological development, including the human 40 conceptus, zygote, morula, blastocyst, embryo, and fetus; 41 [(11)] (15) "Viability" or "viable", that stage of fetal development when the life of the 42 unborn child may be continued indefinitely outside the womb by natural or artificial life- 43 supportive systems; 44 [(12)] (16) "Viable pregnancy" or "viable intrauterine pregnancy", in the first 45 trimester of pregnancy, an intrauterine pregnancy that can potentially result in a liveborn 46 baby; 47 (17) "Woman" or "women", includes any person whose biological sex is female, 48 including any person with XX chromosomes and any person with a uterus, regardless of 49 any gender identity that the person attempts to assert or claim. HB 1987 2 188.026. 1. This section [and sections 188.056, 188.057, and 188.058] shall be 2 known and may be cited as the "Missouri Stands for the Unborn Act". 3 2. In Roe v. Wade, 410 U.S. 113 (1973), certain information about the development of 4 the unborn child, human pregnancy, and the effects of abortion was either not part of the 5 record or was not available at the time. Since 1973, advances in medical and scientific 6 technology have greatly expanded our knowledge of prenatal life and the effects of abortion 7 on women. The general assembly of this state finds: 8 (1) At conception, a new genetically distinct human being is formed; 9 (2) The fact that the life of an individual human being begins at conception has long 10 been recognized in Missouri law: "[T]he child is, in truth, alive from the moment of 11 conception". State v. Emerich, 13 Mo. App. 492, 495 (1883), affirmed, 87 Mo. 110 (1885). 12 Under section 1.205, the general assembly has recognized that the life of each human being 13 begins at conception and that unborn children have protectable interests in life, health, and 14 well-being; 15 (3) The first prohibition of abortion in Missouri was enacted in 1825. Since then, the 16 repeal and reenactment of prohibitions of abortion have made distinctions with respect to 17 penalties for performing or inducing abortion on the basis of "quickening"; however, the 18 unborn child was still protected from conception onward; 19 (4) In ruling that Missouri's prohibition on abortion was constitutional in 1972, the 20 Missouri supreme court accepted as a stipulation of the parties that "'[i]nfant Doe, Intervenor 21 Defendant in this case, and all other unborn children have all the qualities and attributes of 22 adult human persons differing only in age or maturity. Medically, human life is a continuum 23 from conception to death.'" Rodgers v. Danforth, 486 S.W.2d 258, 259 (1972); 24 (5) In Webster v. Reproductive Health Services, 492 U.S. 490 (1989), the Supreme 25 Court, while considering the "preamble" that set forth "findings" in section 1.205, stated: 26 "We think the extent to which the preamble's language might be used to interpret other state 27 statutes or regulations is something that only the courts of Missouri can definitively decide. 28 State law has offered protections to unborn children in tort and probate law". Id. at 506. Since 29 Webster, Missouri courts have construed section 1.205 and have consistently found that an 30 unborn child is a person for purposes of Missouri's homicide and assault laws when the 31 unborn child's mother was killed or assaulted by another person. Section 1.205 has even been 32 found applicable to the manslaughter of an unborn child who was eight weeks gestational age 33 or earlier. State v. Harrison, 390 S.W.3d 927 (Mo. Ct. App. 2013); 34 (6) In medicine, a special emphasis is placed on the heartbeat. The heartbeat is a 35 discernible sign of life at every stage of human existence. During the fifth week of 36 gestational age, an unborn child's heart begins to beat and blood flow begins during the sixth 37 week; HB 1987 3 38 (7) Depending on the ultrasound equipment being used, the unborn child's heartbeat 39 can be visually detected as early as six to eight weeks gestational age. By about twelve weeks 40 gestational age, the unborn child's heartbeat can consistently be made audible through the use 41 of a handheld Doppler fetal heart rate device; 42 (8) Confirmation of a pregnancy can be indicated through the detection of the unborn 43 child's heartbeat, while the absence of a heartbeat can be an indicator of the death of the 44 unborn child if the child has reached the point of development when a heartbeat should be 45 detectable; 46 (9) Heart rate monitoring during pregnancy and labor is utilized to measure the heart 47 rate and rhythm of the unborn child, at an average rate between one hundred ten and one 48 hundred sixty beats per minute, and helps determine the health of the unborn child; 49 (10) The Supreme Court in Roe discussed "the difficult question of when life begins" 50 and wrote: "[p]hysicians and their scientific colleagues have regarded [quickening] with less 51 interest and have tended to focus either upon conception, upon live birth, or upon the interim 52 point at which the fetus becomes 'viable', that is, potentially able to live outside the mother's 53 womb, albeit with artificial aid". Roe, 410 U.S. at 160. Today, however, physicians' and 54 scientists' interests on life in the womb also focus on other markers of development in the 55 unborn child, including, but not limited to, presence of a heartbeat, brain development, a 56 viable pregnancy or viable intrauterine pregnancy during the first trimester of pregnancy, and 57 the ability to experience pain; 58 (11) In Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), the 59 Supreme Court noted that "we recognized in Roe that viability was a matter of medical 60 judgment, skill, and technical ability, and we preserved the flexibility of the term". Id. at 64. 61 Due to advances in medical technology and diagnoses, present-day physicians and scientists 62 now describe the viability of an unborn child in an additional manner, by determining whether 63 there is a viable pregnancy or viable intrauterine pregnancy during the first trimester of 64 pregnancy; 65 (12) While the overall risk of miscarriage after clinical recognition of pregnancy is 66 twelve to fifteen percent, the incidence decreases significantly if cardiac activity in the unborn 67 child has been confirmed. The detection of a heartbeat in an unborn child is a reliable 68 indicator of a viable pregnancy and that the unborn child will likely survive to birth, 69 especially if presenting for a prenatal visit at eight weeks gestational age or later. For 70 asymptomatic women attending a first prenatal visit between six and eleven weeks gestational 71 age where a heartbeat was confirmed through an ultrasound, the subsequent risk of 72 miscarriage is one and six-tenths percent. Although the risk is higher at six weeks gestational 73 age at nine and four-tenths percent, it declines rapidly to one and five-tenths percent at eight 74 weeks gestational age, and less than one percent at nine weeks gestational age or later; HB 1987 4 75 (13) The presence of a heartbeat in an unborn child represents a more definable point 76 of ascertaining survivability than the ambiguous concept of viability that has been adopted by 77 the Supreme Court, especially since if a heartbeat is detected at eight weeks gestational age or 78 later in a normal pregnancy, there is likely to be a viable pregnancy and there is a high 79 probability that the unborn child will survive to birth; 80 (14) The placenta begins developing during the early first trimester of pregnancy and 81 performs a respiratory function by making oxygen supply to and carbon dioxide removal 82 from the unborn child possible later in the first trimester and throughout the second and third 83 trimesters of pregnancy; 84 (15) By the fifth week of gestation, the development of the brain of the unborn child 85 is underway. Brain waves have been measured and recorded as early as the eighth week of 86 gestational age in children who were removed during an ectopic pregnancy or hysterectomy. 87 Fetal magnetic resonance imaging (MRI) of an unborn child's brain is used during the second 88 and third trimesters of pregnancy and brain activity has been observed using MRI; 89 (16) Missouri law identifies the presence of circulation, respiration, and brain 90 function as indicia of life under section 194.005, as the presence of circulation, respiration, 91 and brain function indicates that such person is not legally dead, but is legally alive; 92 (17) Unborn children at eight weeks gestational age show spontaneous movements, 93 such as a twitching of the trunk and developing limbs. It has been reported that unborn 94 children at this stage show reflex responses to touch. The perioral area is the first part of the 95 unborn child's body to respond to touch at about eight weeks gestational age and by fourteen 96 weeks gestational age most of the unborn child's body is responsive to touch; 97 (18) Peripheral cutaneous sensory receptors, the receptors that feel pain, develop 98 early in the unborn child. They appear in the perioral cutaneous area at around seven to eight 99 weeks gestational age, in the palmar regions at ten to ten and a half weeks gestational age, the 100 abdominal wall at fifteen weeks gestational age, and over all of the unborn child's body at 101 sixteen weeks gestational age; 102 (19) Substance P, a peptide that functions as a neurotransmitter, especially in the 103 transmission of pain, is present in the dorsal horn of the spinal cord of the unborn child at 104 eight to ten weeks gestational age. Enkephalins, peptides that play a role in 105 neurotransmission and pain modulation, are present in the dorsal horn at twelve to 106 fourteen weeks gestational age; 107 (20) When intrauterine needling is performed on an unborn child at sixteen weeks 108 gestational age or later, the reaction to this invasive stimulus is blood flow redistribution to 109 the brain. Increased blood flow to the brain is the same type of stress response seen in a born 110 child and an adult; HB 1987 5 111 (21) By sixteen weeks gestational age, pain transmission from a peripheral receptor to 112 the cortex is possible in the unborn child; 113 (22) Physicians provide anesthesia during in utero treatment of unborn children as 114 early as sixteen weeks gestational age for certain procedures, including those to correct fetal 115 urinary tract obstruction. Anesthesia is administered by ultrasound-guided injection into the 116 arm or leg of the unborn child; 117 (23) A leading textbook on prenatal development of the human brain states, "It may 118 be concluded that, although nociperception (the actual perception of pain) awaits the 119 appearance of consciousness, nociception (the experience of pain) is present some time before 120 birth. In the absence of disproof, it is merely prudent to assume that pain can be experienced 121 even early in prenatal life (Dr. J. Wisser, Zürich): the fetus should be given the benefit of the 122 doubt". Ronan O'Rahilly & Fabiola Müller. The Embryonic Human Brain: An Atlas of 123 Developmental Stages (3d ed. [2005] 2006); 124 (24) By fourteen or fifteen weeks gestational age or later, the predominant abortion 125 method in Missouri is dilation and evacuation (D&E). The D&E abortion method includes 126 the dismemberment, disarticulation, and exsanguination of the unborn child, causing the 127 unborn child's death; 128 (25) The Supreme Court acknowledged in Gonzales v. Carhart, 550 U.S. 124, 160 129 (2007), that "the standard D&E is in some respects as brutal, if not more, than the intact 130 D&E" partial birth abortion method banned by Congress and upheld as facially constitutional 131 by the Supreme Court, even though the federal ban was applicable both before and after 132 viability and had no exception for the health of the mother; 133 (26) Missouri's ban on the partial birth abortion method, section 565.300, is in effect 134 because of Gonzales v. Carhart and the Supreme Court's subsequent decision in Nixon v. 135 Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc., 550 U.S. 136 901 (2007), to vacate and remand to the appellate court the prior invalidation of section 137 565.300. Since section 565.300, like Congress' ban on partial birth abortion, is applicable 138 both before and after viability, there is ample precedent for the general assembly to 139 constitutionally prohibit the brutal D&E abortion method at fourteen weeks gestational age or 140 later, even before the unborn child is viable, with a medical emergency exception; 141 (27) In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court determined that 142 "evolving standards of decency" dictated that a Missouri statute allowing the death penalty 143 for a conviction of murder in the first degree for a person under eighteen years of age when 144 the crime was committed was unconstitutional under the Eighth and Fourteenth Amendments 145 to the United States Constitution because it violated the prohibition against "cruel and unusual 146 punishments"; HB 1987 6 147 (28) In Bucklew v. Precythe, 139 S. Ct. 1112, 1123 (2019), the Supreme Court noted 148 that "'[d]isgusting' practices" like disemboweling and quartering "readily qualified as 'cruel 149 and unusual', as a reader at the time of the Eighth Amendment's adoption would have 150 understood those words"; 151 (29) Evolving standards of decency dictate that Missouri should prohibit the brutal 152 and painful D&E abortion method at fourteen weeks gestational age or later, with a medical 153 emergency exception, because if a comparable method of killing was used on: 154 (a) A person convicted of murder in the first degree, it would be cruel and unusual 155 punishment; or 156 (b) An animal, it would be unlawful under state law because it would not be a humane 157 method, humane euthanasia, or humane killing of certain animals under chapters 273 and 158 578; 159 (30) In Roper, the Supreme Court also found that "[i]t is proper that we acknowledge 160 the overwhelming weight of international opinion against the juvenile death penalty.... The 161 opinion of the world community, while not controlling our outcome, does provide respected 162 and significant confirmation for our own conclusions". Roper, 543 U.S. at 578. In its 163 opinion, the Supreme Court was instructed by "international covenants prohibiting the 164 juvenile death penalty", such as the International Covenant on Civil and Political Rights, 999 165 U.N.T.S. 171. Id. at 577; 166 (31) The opinion of the world community, reflected in the laws of the United Nation's 167 193-member states and six other entities, is that in most countries, most abortions are 168 prohibited after twelve weeks gestational age or later; 169 (32) The opinion of the world community is also shared by most Americans, who 170 believe that most abortions in the second and third trimesters of pregnancy should be illegal, 171 based on polling that has remained consistent since 1996; 172 (33) Abortion procedures performed later in pregnancy have a higher medical risk for 173 women. Compared to an abortion at eight weeks gestational age or earlier, the relative risk 174 increases exponentially at later gestational ages. The relative risk of death for a pregnant 175 woman who had an abortion performed or induced upon her at: 176 (a) Eleven to twelve weeks gestational age is between three and four times higher 177 than an abortion at eight weeks gestational age or earlier; 178 (b) Thirteen to fifteen weeks gestational age is almost fifteen times higher than an 179 abortion at eight weeks gestational age or earlier; 180 (c) Sixteen to twenty weeks gestational age is almost thirty times higher than an 181 abortion at eight weeks gestational age or earlier; and 182 (d) Twenty-one weeks gestational age or later is more than seventy-five times higher 183 than an abortion at eight weeks gestational age or earlier; HB 1987 7 184 (34) In addition to the short-term risks of an abortion, studies have found that the 185 long-term physical and psychological consequences of abortion for women include, but are 186 not limited to, an increased risk of preterm birth, low birthweight babies, and placenta previa 187 in subsequent pregnancies, as well as serious behavioral health issues. These risks increase as 188 abortions are performed or induced at later gestational ages. These consequences of an 189 abortion have a detrimental effect not only on women, their children, and their families, but 190 also on an already burdened health care system, taxpayers, and the workforce; 191 (35) A large percentage of women who have an abortion performed or induced upon 192 them in Missouri each year are at less than eight weeks gestational age, a large majority are at 193 less than fourteen weeks gestational age, a larger majority are at less than eighteen weeks 194 gestational age, and an even larger majority are at less than twenty weeks gestational age. A 195 prohibition on performing or inducing an abortion at eight weeks gestational age or later, with 196 a medical emergency exception, does not amount to a substantial obstacle to a large fraction 197 of women for whom the prohibition is relevant, which is pregnant women in Missouri who 198 are seeking an abortion while not experiencing a medical emergency. The burden that a 199 prohibition on performing or inducing an abortion at eight, fourteen, eighteen, or twenty 200 weeks gestational age or later, with a medical emergency exception, might impose on 201 abortion access[,] is outweighed by the benefits conferred upon the following: 202 (a) Women more advanced in pregnancy who are at greater risk of harm from 203 abortion; 204 (b) Unborn children at later stages of development; 205 (c) The medical profession, by preserving its integrity and fulfilling its commitment 206 to do no harm; and 207 (d) Society, by fostering respect for human life, born and unborn, at all stages of 208 development, and by lessening societal tolerance of violence against innocent human life; 209 (36) In Webster, the Supreme Court noted, in upholding a Missouri statute, "that there 210 may be a 4-week error in estimating gestational age". Webster, 492 U.S. at 516. Thus, an 211 unborn child thought to be eight weeks gestational age might in fact be twelve weeks 212 gestational age, when an abortion poses a greater risk to the woman and the unborn child is 213 considerably more developed. An unborn child at fourteen weeks gestational age might be 214 eighteen weeks gestational age and an unborn child at eighteen weeks gestational age might 215 be twenty-two weeks gestational age, when an abortion poses a greater risk to the woman, the 216 unborn child is considerably more developed, the abortion method likely to be employed is 217 more brutal, and the risk of pain experienced by the unborn child is greater. An unborn child 218 at twenty weeks gestational age might be twenty-four weeks gestational age, when an 219 abortion poses a greater risk to the woman, the unborn child is considerably more developed, HB 1987 8 220 the abortion method likely to be employed is more brutal, the risk of pain experienced by the 221 unborn child is greater, and the unborn child may be viable. 222 3. The state of Missouri is bound by Article VI, Clause 2 of the Constitution of the 223 United States that "all treaties made, or which shall be made, under the authority of the United 224 States, shall be the supreme law of the land". One such treaty is the International Covenant 225 on Civil and Political Rights, entered into force on March 23, 1976, and adopted by the 226 United States on September 8, 1992. In ratifying the Covenant, the United States declared 227 that while the provisions of Articles 1 through 27 of the Covenant are not self-executing, the 228 United States' understanding is that state governments share responsibility with the federal 229 government in implementing the Covenant. 230 4. Article 6, Paragraph 1, U.N.T.S. at 174, of the International Covenant on Civil and 231 Political Rights states, "Every human being has the inherent right to life. This right shall be 232 protected by law. No one shall be arbitrarily deprived of his life". The state of Missouri takes 233 seriously its obligation to comply with the Covenant and to implement this paragraph as it 234 relates to the inherent right to life of unborn human beings, protecting the rights of unborn 235 human beings by law, and ensuring that such unborn human beings are not arbitrarily 236 deprived of life. The state of Missouri hereby implements Article 6, Paragraph 1 of the 237 Covenant by the regulation of abortion in this state. 238 5. The state of Missouri has interests that include, but are not limited to: 239 (1) Protecting unborn children throughout pregnancy and preserving and promoting 240 their lives from conception to birth; 241 (2) Encouraging childbirth over abortion; 242 (3) Ensuring respect for all human life from conception to natural death; 243 (4) Safeguarding an unborn child from the serious harm of pain by an abortion 244 method that would cause the unborn child to experience pain while she or he is being killed; 245 (5) Preserving the integrity of the medical profession and regulating and restricting 246 practices that might cause the medical profession or society as a whole to become insensitive, 247 even disdainful, to life. This includes regulating and restricting abortion methods that are not 248 only brutal and painful, but if allowed to continue, will further coarsen society to the 249 humanity of not only unborn children, but all vulnerable and innocent human life, making it 250 increasingly difficult to protect such life; 251 (6) Ending the incongruities in state law by permitting some unborn children to be 252 killed by abortion, while requiring that unborn children be protected in nonabortion 253 circumstances through, including, but not limited to, homicide, assault, self-defense, and 254 defense of another statutes; laws guaranteeing prenatal health care, emergency care, and 255 testing; state-sponsored health insurance for unborn children; the prohibition of restraints in 256 correctional institutions to protect pregnant offenders and their unborn children; and HB 1987 9 257 protecting the interests of unborn children by the appointment of conservators, guardians, and 258 representatives; 259 (7) Reducing the risks of harm to pregnant women who obtain abortions later in 260 pregnancy; and 261 (8) Avoiding burdens on the health care system, taxpayers, and the workforce because 262 of increased preterm births, low birthweight babies, compromised pregnancies, extended 263 postpartum recoveries, and behavioral health problems caused by the long-term effects of 264 abortions performed or induced later in the pregnancy. 188.027. 1. Except in cases of medical emergency, no abortion shall be performed or 2 induced on a woman without her voluntary and informed consent, given freely and without 3 coercion. Consent to an abortion is voluntary and informed and given freely and without 4 coercion if, and only if, at least seventy-two hours prior to the abortion: 5 (1) The physician who is to perform or induce the abortion, a qualified professional, 6 or the referring physician has informed the woman orally, reduced to writing, and in person, 7 of the following: 8 (a) The name of the physician who will perform or induce the abortion; 9 (b) Medically accurate information that a reasonable patient would consider material 10 to the decision of whether or not to undergo the abortion, including: 11 a. A description of the proposed abortion method; 12 b. The immediate and long-term medical risks to the woman associated with the 13 proposed abortion method including, but not limited to, infection, hemorrhage, cervical tear 14 or uterine perforation, harm to subsequent pregnancies or the ability to carry a subsequent 15 child to term, and possible adverse psychological effects associated with the abortion; and 16 c. The immediate and long-term medical risks to the woman, in light of the anesthesia 17 and medication that is to be administered, the unborn child's gestational age, and the woman's 18 medical history and medical condition; 19 (c) Alternatives to the abortion which shall include making the woman aware that 20 information and materials shall be provided to her detailing such alternatives to the abortion; 21 (d) A statement that the physician performing or inducing the abortion is available for 22 any questions concerning the abortion, together with the telephone number that the physician 23 may be later reached to answer any questions that the woman may have; 24 (e) The location of the hospital that offers obstetrical or gynecological care located 25 within thirty miles of the location where the abortion is performed or induced and at which 26 the physician performing or inducing the abortion has clinical privileges and where the 27 woman may receive follow-up care by the physician if complications arise; 28 (f) The gestational age of the unborn child at the time the abortion is to be performed 29 or induced; and HB 1987 10 30 (g) The anatomical and physiological characteristics of the unborn child at the time 31 the abortion is to be performed or induced; 32 (2) The physician who is to perform or induce the abortion or a qualified professional 33 has presented the woman, in person, printed materials provided by the department, which 34 describe the probable anatomical and physiological characteristics of the unborn child at two- 35 week gestational increments from conception to full term, including color photographs or 36 images of the developing unborn child at two-week gestational increments. Such descriptions 37 shall include information about brain and heart functions, the presence of external members 38 and internal organs during the applicable stages of development and information on when the 39 unborn child is viable. The printed materials shall prominently display the following 40 statement: "The life of each human being begins at conception. Abortion will terminate the 41 life of a separate, unique, living human being."; 42 (3) The physician who is to perform or induce the abortion, a qualified professional, 43 or the referring physician has presented the woman, in person, printed materials provided by 44 the department, which describe the various surgical and drug-induced methods of abortion 45 relevant to the stage of pregnancy, as well as the immediate and long-term medical risks 46 commonly associated with each abortion method including, but not limited to, infection, 47 hemorrhage, cervical tear or uterine perforation, harm to subsequent pregnancies or the ability 48 to carry a subsequent child to term, and the possible adverse psychological effects associated 49 with an abortion; 50 (4) The physician who is to perform or induce the abortion or a qualified professional 51 shall provide the woman with the opportunity to view at least seventy-two hours prior to the 52 abortion an active ultrasound of the unborn child [and hear the heartbeat of the unborn child if 53 the heartbeat is audible]. The woman shall be provided with a geographically indexed list 54 maintained by the department of health care providers, facilities, and clinics that perform 55 ultrasounds, including those that offer ultrasound services free of charge. Such materials 56 shall provide contact information for each provider, facility, or clinic including telephone 57 numbers and, if available, website addresses. Should the woman decide to obtain an 58 ultrasound from a provider, facility, or clinic other than the abortion facility, the woman shall 59 be offered a reasonable time to obtain the ultrasound examination before the date and time set 60 for performing or inducing an abortion. The person conducting the ultrasound shall ensure 61 that the active ultrasound image is of a quality consistent with standard medical practice in the 62 community, contains the dimensions of the unborn child, and accurately portrays the presence 63 of external members and internal organs, if present or viewable, of the unborn child. [The 64 auscultation of fetal heart tone must also be of a quality consistent with standard medical 65 practice in the community.] If the woman chooses to view the ultrasound [or hear the 66 heartbeat or both] at the abortion facility, the viewing [or hearing or both] shall be provided to HB 1987 11 67 her at the abortion facility at least seventy-two hours prior to the abortion being performed or 68 induced; 69 (5) The printed materials provided by the department shall include information on the 70 possibility of an abortion causing pain in the unborn child. This information shall include, but 71 need not be limited to, the following: 72 (a) Unborn children as early as eight weeks gestational age start to show spontaneous 73 movements and unborn children at this stage in pregnancy show reflex responses to touch; 74 (b) In the unborn child, the area around his or her mouth and lips is the first part of the 75 unborn child's body to respond to touch and by fourteen weeks gestational age most of the 76 unborn child's body is responsive to touch; 77 (c) Pain receptors on the unborn child's skin develop around his or her mouth at 78 around seven to eight weeks gestational age, around the palms of his or her hands at ten to ten 79 and a half weeks, on the abdominal wall at fifteen weeks, and over all of his or her body at 80 sixteen weeks gestational age; 81 (d) Beginning at sixteen weeks gestational age and later, it is possible for pain to be 82 transmitted from receptors to the cortex of the unborn child's brain, where thinking and 83 perceiving occur; 84 (e) When a physician performs a life-saving surgery, he or she provides anesthesia to 85 unborn children as young as sixteen weeks gestational age in order to alleviate the unborn 86 child's pain; and 87 (f) A description of the actual steps in the abortion procedure to be performed or 88 induced and at which steps the abortion procedure could be painful to the unborn child; 89 (6) The physician who is to perform or induce the abortion or a qualified professional 90 has presented the woman, in person, printed materials provided by the department explaining 91 to the woman alternatives to abortion she may wish to consider. Such materials shall: 92 (a) Identify on a geographical basis public and private agencies available to assist a 93 woman in carrying her unborn child to term, and to assist her in caring for her dependent child 94 or placing her child for adoption, including agencies commonly known and generally referred 95 to as pregnancy resource centers, crisis pregnancy centers, maternity homes, and adoption 96 agencies. Such materials shall provide a comprehensive list by geographical area of the 97 agencies, a description of the services they offer, and the telephone numbers and addresses of 98 the agencies; provided that such materials shall not include any programs, services, 99 organizations, or affiliates of organizations that perform or induce, or assist in the performing 100 or inducing of, abortions or that refer for abortions; 101 (b) Explain the Missouri alternatives to abortion services program under section 102 188.325, and any other programs and services available to pregnant women and mothers of 103 newborn children offered by public or private agencies which assist a woman in carrying her HB 1987 12 104 unborn child to term and assist her in caring for her dependent child or placing her child for 105 adoption, including but not limited to prenatal care; maternal health care; newborn or infant 106 care; mental health services; professional counseling services; housing programs; utility 107 assistance; transportation services; food, clothing, and supplies related to pregnancy; 108 parenting skills; educational programs; job training and placement services; drug and alcohol 109 testing and treatment; and adoption assistance; 110 (c) Identify the state website for the Missouri alternatives to abortion services 111 program under section 188.325, and any toll-free number established by the state operated in 112 conjunction with the program; 113 (d) Prominently display the statement: "There are public and private agencies willing 114 and able to help you carry your child to term, and to assist you and your child after your child 115 is born, whether you choose to keep your child or place him or her for adoption. The state of 116 Missouri encourages you to contact those agencies before making a final decision about 117 abortion. State law requires that your physician or a qualified professional give you the 118 opportunity to call agencies like these before you undergo an abortion."; 119 (7) The physician who is to perform or induce the abortion or a qualified professional 120 has presented the woman, in person, printed materials provided by the department explaining 121 that the father of the unborn child is liable to assist in the support of the child, even in 122 instances where he has offered to pay for the abortion. Such materials shall include 123 information on the legal duties and support obligations of the father of a child, including, but 124 not limited to, child support payments, and the fact that paternity may be established by the 125 father's name on a birth certificate or statement of paternity, or by court action. Such printed 126 materials shall also state that more information concerning paternity establishment and child 127 support services and enforcement may be obtained by calling the family support division 128 within the Missouri department of social services; and 129 (8) The physician who is to perform or induce the abortion or a qualified professional 130 shall inform the woman that she is free to withhold or withdraw her consent to the abortion at 131 any time without affecting her right to future care or treatment and without the loss of any 132 state or federally funded benefits to which she might otherwise be entitled. 133 2. All information required to be provided to a woman considering abortion by 134 subsection 1 of this section shall be presented to the woman individually, in the physical 135 presence of the woman and in a private room, to protect her privacy, to maintain the 136 confidentiality of her decision, to ensure that the information focuses on her individual 137 circumstances, to ensure she has an adequate opportunity to ask questions, and to ensure that 138 she is not a victim of coerced abortion. Should a woman be unable to read materials provided 139 to her, they shall be read to her. Should a woman need an interpreter to understand the 140 information presented in the written materials, an interpreter shall be provided to her. Should HB 1987 13 141 a woman ask questions concerning any of the information or materials, answers shall be 142 provided in a language she can understand. 143 3. No abortion shall be performed or induced unless and until the woman upon whom 144 the abortion is to be performed or induced certifies in writing on a checklist form provided by 145 the department that she has been presented all the information required in subsection 1 of this 146 section, that she has been provided the opportunity to view an active ultrasound image of the 147 unborn child [and hear the heartbeat of the unborn child if it is audible,] and that she further 148 certifies that she gives her voluntary and informed consent, freely and without coercion, to the 149 abortion procedure. 150 4. No physician shall perform or induce an abortion unless and until the physician has 151 obtained from the woman her voluntary and informed consent given freely and without 152 coercion. If the physician has reason to believe that the woman is being coerced into having 153 an abortion, the physician or qualified professional shall inform the woman that services are 154 available for her and shall provide her with private access to a telephone and information 155 about such services, including but not limited to the following: 156 (1) Rape crisis centers, as defined in section 455.003; 157 (2) Shelters for victims of domestic violence, as defined in section 455.200; and 158 (3) Orders of protection, pursuant to chapter 455. 159 5. The physician who is to perform or induce the abortion shall, at least seventy-two 160 hours prior to such procedure, inform the woman orally and in person of: 161 (1) The immediate and long-term medical risks to the woman associated with the 162 proposed abortion method including, but not limited to, infection, hemorrhage, cervical tear 163 or uterine perforation, harm to subsequent pregnancies or the ability to carry a subsequent 164 child to term, and possible adverse psychological effects associated with the abortion; and 165 (2) The immediate and long-term medical risks to the woman, in light of the 166 anesthesia and medication that is to be administered, the unborn child's gestational age, and 167 the woman's medical history and medical conditions. 168 6. No physician shall perform or induce an abortion unless and until the physician has 169 received and signed a copy of the form prescribed in subsection 3 of this section. The 170 physician shall retain a copy of the form in the patient's medical record. 171 7. In the event of a medical emergency, the physician who performed or induced the 172 abortion shall clearly certify in writing the nature and circumstances of the medical 173 emergency. This certification shall be signed by the physician who performed or induced the 174 abortion, and shall be maintained under section 188.060. 175 8. No person or entity shall require, obtain, or accept payment for an abortion from or 176 on behalf of a patient until at least seventy-two hours have passed since the time that the 177 information required by subsection 1 of this section has been provided to the patient. Nothing HB 1987 14 178 in this subsection shall prohibit a person or entity from notifying the patient that payment for 179 the abortion will be required after the seventy-two-hour period has expired if she voluntarily 180 chooses to have the abortion. 181 9. The term "qualified professional" as used in this section shall refer to a physician, 182 physician assistant, registered nurse, licensed practical nurse, psychologist, licensed 183 professional counselor, or licensed social worker, licensed or registered under chapter 334, 184 335, or 337, acting under the supervision of the physician performing or inducing the 185 abortion, and acting within the course and scope of his or her authority provided by law. The 186 provisions of this section shall not be construed to in any way expand the authority otherwise 187 provided by law relating to the licensure, registration, or scope of practice of any such 188 qualified professional. 189 10. By November 30, 2010, the department shall produce the written materials and 190 forms described in this section. Any written materials produced shall be printed in a typeface 191 large enough to be clearly legible. All information shall be presented in an objective, 192 unbiased manner designed to convey only accurate scientific and medical information. The 193 department shall furnish the written materials and forms at no cost and in sufficient quantity 194 to any person who performs or induces abortions, or to any hospital or facility that provides 195 abortions. The department shall make all information required by subsection 1 of this section 196 available to the public through its department website. The department shall maintain a toll- 197 free, twenty-four-hour hotline telephone number where a caller can obtain information on a 198 regional basis concerning the agencies and services described in subsection 1 of this section. 199 No identifying information regarding persons who use the website shall be collected or 200 maintained. The department shall monitor the website on a regular basis to prevent tampering 201 and correct any operational deficiencies. 202 11. In order to preserve the compelling interest of the state to ensure that the choice to 203 consent to an abortion is voluntary and informed, and given freely and without coercion, the 204 department shall use the procedures for adoption of emergency rules under section 536.025 in 205 order to promulgate all necessary rules, forms, and other necessary material to implement this 206 section by November 30, 2010. 207 12. If the provisions in subsections 1 and 8 of this section requiring a seventy-two- 208 hour waiting period for an abortion are ever temporarily or permanently restrained or 209 enjoined by judicial order, then the waiting period for an abortion shall be twenty-four hours; 210 provided, however, that if such temporary or permanent restraining order or injunction is 211 stayed or dissolved, or otherwise ceases to have effect, the waiting period for an abortion shall 212 be seventy-two hours. HB 1987 15 188.035. [Whoever, with intent to do so, shall take the life of a child aborted alive, 2 shall be guilty of murder of the second degree.] 1. This section shall be known and may be 3 cited as the "Born-Alive Abortion Survivors Protection Act". 4 2. A child born alive during or after an abortion or an attempted abortion shall 5 have all the rights, privileges, and immunities available to other persons, citizens, and 6 residents of this state, including any other liveborn child. 7 3. Any health care provider licensed, registered, or certified in this state who is 8 present at the time a child is born alive during or after an abortion or attempted 9 abortion shall: 10 (1) Exercise the same degree of professional skill, care, and diligence to preserve 11 the life and health of the child as a reasonably diligent and conscientious health care 12 provider would render to any other child born alive at the same gestational age; and 13 (2) Ensure that the child born alive is immediately transported and admitted to a 14 hospital following the exercise of skill, care, and diligence required under subdivision (1) 15 of this subsection. 16 4. In addition to any criminal or administrative liability that may be incurred, a 17 person shall be civilly liable when he or she: 18 (1) Knowingly, recklessly, or negligently causes the death of a child who is born 19 alive during or after an abortion or an attempted abortion; 20 (2) Knowingly fails to comply with any of the provisions of subsection 3 of this 21 section if the person is a health care provider subject to such provisions; 22 (3) Knowingly performs or induces, or attempts to perform or induce, an 23 unlawful abortion upon another person; 24 (4) Knowingly aids or abets another person to undergo a self-induced abortion 25 or attempted self-induced abortion or to procure an unlawful abortion or attempted 26 unlawful abortion; 27 (5) Knowingly, recklessly, or negligently supplies or makes available any 28 instrument, device, medicine, drug, or any other means or substance for another person 29 to undergo a self-induced abortion or attempted self-induced abortion or to procure an 30 unlawful abortion or attempted unlawful abortion; or 31 (6) Knowingly incites, solicits, or otherwise uses speech or writing as an integral 32 part of conduct in violation of a valid criminal statute to influence another person to 33 undergo a self-induced abortion or attempted self-induced abortion or to procure an 34 unlawful abortion or attempted unlawful abortion. 35 5. If injury or death arises out of or results from any circumstance under 36 subsection 4 of this section to any of the following persons, including: HB 1987 16 37 (1) A person upon whom the unlawful abortion or attempted unlawful abortion 38 was performed or induced; 39 (2) A person who underwent a self-induced abortion or attempted self-induced 40 abortion or who procured an unlawful abortion or attempted unlawful abortion; 41 (3) A child who was born alive during or after an abortion or attempted 42 abortion; or 43 (4) An unborn child, 44 45 a cause of action for personal injury, bodily injury, or wrongful death may be brought. 46 In a cause of action for wrongful death, the spouse, partner, parents, siblings, and 47 children of the deceased person, child, or unborn child shall be entitled to bring the 48 action. Damages for injury or death may be recovered for including, but not limited to, 49 any damages described in chapters 537 and 538 which are applicable; loss of future 50 fertility; loss of love and companionship of the spouse, partner, parent, child, unborn 51 child, or sibling; and for injury to or destruction of the spouse, partner, parent, child, 52 unborn child, or sibling relationship in such amount as, under all the circumstances of 53 the case, may be just. The court shall also award a prevailing plaintiff reasonable 54 attorney's fees and litigation costs including, but not limited to, expert witness fees and 55 expenses as part of the costs. A defendant shall not plead or prove as a defense that the 56 plaintiff assumed the risk of undergoing, or consented to undergo, a self-induced 57 abortion or attempted self-induced abortion or that the plaintiff assumed the risk of 58 procuring, or consented to procure, an unlawful abortion or attempted unlawful 59 abortion. The fact that a plaintiff consented to undergo a self-induced abortion or 60 attempted self-induced abortion or to procure an unlawful abortion or attempted 61 unlawful abortion shall not, in and of itself, be considered evidence of contributory or 62 comparative negligence. Any exculpatory agreement between or among parties that is 63 related to undergoing a self-induced abortion or attempted self-induced abortion or to 64 procuring an unlawful abortion or attempted unlawful abortion shall be against public 65 policy and shall be void. 188.052. 1. An individual abortion report for each abortion performed or induced 2 upon a woman shall be completed by the physician who performed or induced the abortion. 3 Abortion reports shall include, but not be limited to, a certification that the physician does not 4 have any knowledge that the woman sought the abortion solely because of a prenatal 5 diagnosis, test, or screening indicating Down Syndrome or the potential of Down Syndrome 6 in the unborn child and a certification that the physician does not have any knowledge that the 7 woman sought the abortion solely because of the sex or race of the unborn child. Abortion HB 1987 17 8 reports shall also include the time, date, method, and results of the heartbeat test 9 performed prior to the abortion under section 188.900. 10 2. An individual complication report for any post-abortion care performed upon a 11 woman shall be completed by the physician providing such post-abortion care. This report 12 shall include: 13 (1) The date of the abortion; 14 (2) The name and address of the abortion facility or hospital where the abortion was 15 performed or induced; 16 (3) The nature of the abortion complication diagnosed or treated. 17 3. All abortion reports shall be signed by the attending physician who performed or 18 induced the abortion and submitted to the department within forty-five days from the date of 19 the abortion. All complication reports shall be signed by the physician providing the post- 20 abortion care and submitted to the department within forty-five days from the date of the post- 21 abortion care. 22 4. A copy of the abortion report shall be made a part of the medical record of the 23 patient of the abortion facility or hospital in which the abortion was performed or induced. 24 5. The department shall be responsible for collecting all abortion reports and 25 complication reports and collating and evaluating all data gathered therefrom and shall 26 annually publish a statistical report based on such data from abortions performed or induced 27 in the previous calendar year. 188.075. 1. Any person who [contrary to the provisions of sections 188.010 to 2 188.085 knowingly performs, induces, or aids in the performance or inducing of any abortion 3 or] knowingly fails to perform any action required by sections 188.010 to 188.085 shall be 4 guilty of a class A misdemeanor, unless a different penalty is provided for in state law, and, 5 upon conviction, shall be punished as provided by law. 6 2. It shall be an affirmative defense for any person alleged to have violated any 7 provision of this chapter that the person performed an action or did not perform an action 8 because of a medical emergency. This affirmative defense shall be available in criminal, 9 civil, and administrative actions or proceedings. The defendant shall have the burden of 10 persuasion that the defense is more probably true than not. 11 3. Except as provided under section 188.900, the attorney general shall have 12 concurrent original jurisdiction throughout the state, along with each prosecuting attorney and 13 circuit attorney within their respective jurisdictions, to commence actions for a violation of 14 any provision of this chapter, for a violation of any state law on the use of public funds for an 15 abortion, or for a violation of any state law which regulates an abortion facility or a person 16 who performs or induces an abortion. The attorney general, or prosecuting attorney or circuit 17 attorney within their respective jurisdictions, may seek injunctive or other relief against any HB 1987 18 18 person who, or entity which, is in violation of any provision of this chapter, misuses public 19 funds for an abortion, or violates any state law which regulates an abortion facility or a person 20 who performs or induces an abortion. 188.202. 1. No federal act, law, executive order, administrative order, rule, or 2 regulation shall infringe on the rights of the people of Missouri to: 3 (1) Protect state sovereignty and state taxpayers by restricting public funds, 4 public facilities, and public employees from being used to perform, induce, or assist in 5 an abortion, except as provided for in state statutes; 6 (2) Encourage childbirth over abortion in the use of the state's public funds, 7 public facilities, and public employees; 8 (3) Defend the religious beliefs or moral convictions of any person who, or entity 9 that, does not want to be forced to directly or indirectly fund or participate in abortion; 10 (4) Prevent the state or its political subdivisions from being coerced, compelled, 11 or commandeered by the federal government to enact, administer, or enforce a federal 12 regulatory program that directly or indirectly funds abortion; and 13 (5) Prohibit the federal government from commanding or conscripting public 14 officials of the state or its political subdivisions to enforce a federal regulatory program 15 that directly or indirectly funds abortion. 16 2. In any action to enforce the provisions of sections 188.200 to 188.215 by a 17 taxpayer under the provisions of section 188.220, a court of competent jurisdiction may 18 order injunctive or other equitable relief, recovery of damages or other legal remedies, 19 or both, as well as payment of reasonable attorney's fees, costs, and expenses of the 20 taxpayer. The relief and remedies set forth shall not be deemed exclusive and shall be in 21 addition to any other relief or remedies permitted by law. 22 3. In addition to a cause of action brought by a taxpayer under section 188.220, 23 the attorney general is also authorized to bring a cause of action to enforce the 24 provisions of sections 188.200 to 188.215. 188.207. It shall be unlawful for any public funds to be expended to any abortion 2 facility or to any affiliate or associate of such abortion facility. 188.375. 1. This section shall be known and may be cited as the "Late-Term Pain- 2 Capable Unborn Child Protection Act". 3 2. As used in this section, the phrase "late-term pain-capable unborn child" shall 4 mean an unborn child at twenty weeks gestational age or later. 5 3. Notwithstanding any other provision of law to the contrary, no abortion shall be 6 performed or induced upon a woman carrying a late-term pain-capable unborn child, except 7 in cases of medical emergency. Any person who knowingly performs or induces an abortion 8 of a late-term pain-capable unborn child in violation of this subsection shall be guilty of a HB 1987 19 9 class B felony, as well as subject to suspension or revocation of his or her professional license 10 by his or her professional licensing board. A woman upon whom an abortion is performed or 11 induced in violation of this subsection shall not be prosecuted for a conspiracy to violate the 12 provisions of this subsection. 13 4. It shall be an affirmative defense for any person alleged to have violated the 14 provisions of subsection 3 of this section that the person performed or induced an abortion 15 because of a medical emergency. The defendant shall have the burden of persuasion that the 16 defense is more probably true than not. 17 5. [Prosecution under subsection 3 of this section shall bar prosecution under section 18 188.056, 188.057, or 188.058 if prosecution under such sections would violate the provisions 19 of Amendment V to the Constitution of the United States or Article I, Section 19 of the 20 Constitution of Missouri. 21 6.] When in cases of medical emergency a physician performs or induces an abortion 22 upon a woman in her third trimester carrying a late-term pain-capable unborn child, the 23 physician shall utilize the available method or technique of abortion most likely to preserve 24 the life or health of the unborn child. In cases where the method or technique of abortion 25 most likely to preserve the life or health of the unborn child would present a greater risk to the 26 life or health of the woman than another legally permitted and available method or technique, 27 the physician may utilize such other method or technique. In all cases where the physician 28 performs or induces an abortion upon a woman during her third trimester carrying a late-term 29 pain-capable unborn child, the physician shall certify in writing the available method or 30 techniques considered and the reasons for choosing the method or technique employed. 31 [7.] 6. When in cases of medical emergency a physician performs or induces an 32 abortion upon a woman during her third trimester carrying a late-term pain-capable unborn 33 child, there shall be in attendance a physician other than the physician performing or inducing 34 the abortion who shall take control of and provide immediate medical care for a child born as 35 a result of the abortion. 36 [8.] 7. Any physician who knowingly violates any of the provisions of subsection 6 or 37 7 of this section shall be guilty of a class D felony, as well as subject to suspension or 38 revocation of his or her professional license by his or her professional licensing board. A 39 woman upon whom an abortion is performed or induced in violation of subsection 6 or 7 of 40 this section shall not be prosecuted for a conspiracy to violate the provisions of those 41 subsections. 42 [9.] 8. If any one or more provisions, subsections, sentences, clauses, phrases, or 43 words of this section or the application thereof to any person, circumstance, or period of 44 gestational age is found to be unenforceable, unconstitutional, or invalid by a court of 45 competent jurisdiction, the same is hereby declared to be severable and the balance of the HB 1987 20 46 section shall remain effective notwithstanding such unenforceability, unconstitutionality, or 47 invalidity. The general assembly hereby declares that it would have passed this section, and 48 each provision, subsection, sentence, clause, phrase, or word thereof, irrespective of the fact 49 that any one or more provisions, subsections, sentences, clauses, phrases, or words of the 50 section, or the application of the section to any person, circumstance, or period of gestational 51 age, would be declared unenforceable, unconstitutional, or invalid. 188.900. 1. The Missouri general assembly finds, according to contemporary 2 medical research, that: 3 (1) Fetal heartbeat has become a key medical predictor that an unborn child will 4 reach live birth; 5 (2) Cardiac activity begins at a biologically identifiable moment in time, 6 normally when the fetal heartbeat is formed in the gestational sac; 7 (3) The state of Missouri has compelling interests from the outset of a woman's 8 pregnancy in protecting the health of the woman and the life of the unborn child; and 9 (4) To make an informed choice about whether to continue her pregnancy, the 10 pregnant woman has a compelling interest in knowing the likelihood of her unborn child 11 surviving to full-term birth based on the presence of cardiac activity. 12 2. For the purposes of determining the presence of a fetal heartbeat under this 13 section, "standard medical practice" includes employing the appropriate means of 14 detecting the heartbeat based on the estimated gestational age of the unborn child and 15 the condition of the woman and her pregnancy. 16 3. Except as provided under subsection 6 of this section, a physician shall not 17 knowingly perform or induce an abortion on a pregnant woman unless the physician 18 has determined, in accordance with this section, whether the woman's unborn child has 19 a detectable fetal heartbeat. In making such determination, the physician shall use a 20 test that is: 21 (1) Consistent with the physician's good faith and reasonable understanding of 22 standard medical practice; and 23 (2) Appropriate for the estimated gestational age of the unborn child and the 24 condition of the pregnant woman and her pregnancy. 25 4. A physician making a determination under subsection 3 of this section shall 26 record in the pregnant woman's medical record: 27 (1) The estimated gestational age of the unborn child; 28 (2) The method used to estimate the gestational age; and 29 (3) The test used for detecting a fetal heartbeat, including the date, time, and 30 results of the test. HB 1987 21 31 5. Except as provided under subsection 6 of this section, a physician shall not 32 knowingly perform or induce an abortion on a pregnant woman if the physician 33 detected a fetal heartbeat for the unborn child or failed to perform a test to detect a fetal 34 heartbeat. A physician does not violate this subsection if the physician performed a test 35 for a fetal heartbeat and did not detect a fetal heartbeat. This subsection does not 36 affect: 37 (1) The provisions of this chapter that restrict or regulate an abortion by a 38 particular method or during a particular stage of pregnancy; or 39 (2) Any other provision of state law that regulates or prohibits abortion. 40 6. Subsections 1 to 5 of this section do not apply if a physician believes a medical 41 emergency exists that prevents compliance with this section. A physician who performs 42 or induces an abortion when the physician believes a medical emergency exists shall 43 make written notations in the pregnant woman's medical record of: 44 (1) The physician's belief that a medical emergency necessitated the abortion; 45 and 46 (2) The medical conditions of the pregnant woman that prevented compliance 47 with subsections 1 to 5 of this section. 48 49 A physician performing or inducing an abortion under this subsection shall maintain in 50 the physician's practice records a copy of the notations made under subdivisions (1) and 51 (2) of this subsection. 52 7. The requirements of this section shall not apply to an abortion performed at 53 the behest of federal agencies, contractors, or employees that are carrying out duties 54 under federal law if the enforcement of those requirements would violate the doctrines 55 of preemption or intergovernmental immunity. 56 8. The provisions of this section shall not be construed to: 57 (1) Authorize the initiation of a cause of action against or the prosecution of a 58 woman on whom an abortion is performed or induced or attempted to be performed or 59 induced in violation of this section; 60 (2) Wholly or partly repeal, either expressly or by implication, any other statute 61 that requires or prohibits abortion; 62 (3) Restrict a political subdivision from regulating or prohibiting abortion in a 63 manner that is at least as stringent as the laws of this state; or 64 (4) Create or recognize a right to abortion before a fetal heartbeat is detected. 65 9. (1) Notwithstanding the provisions of any other law, the requirements of this 66 section shall be enforced exclusively through the private civil actions described in 67 subsection 10 of this section. No direct or indirect enforcement of this section shall be HB 1987 22 68 taken or threatened by this state, a political subdivision, a prosecuting attorney, or an 69 executive or administrative officer or employee of this state or of a political subdivision 70 against any person, and no violation of this section shall be used to justify or trigger the 71 enforcement of any other law, except as provided in subsection 10 of this section. 72 (2) Subdivision (1) of this subsection shall not be construed to: 73 (a) Legalize the conduct prohibited by this section; 74 (b) Limit in any way or affect the availability of a remedy established under 75 subsection 10 of this section; or 76 (c) Limit the enforceability of any other laws that regulate or prohibit abortion. 77 (3) Neither the state nor a political subdivision, prosecuting attorney, or an 78 executive or administrative officer or employee of the state or of a political subdivision 79 shall act in concert or participate with anyone who brings suit under subsection 10 of 80 this section. 81 10. (1) Any person, except for the state, a political subdivision of the state, or an 82 officer or employee of a state or local governmental entity in this state, may bring a civil 83 action against any person who: 84 (a) Performs or induces an abortion in violation of this chapter; 85 (b) Knowingly engages in conduct that aids or abets the performance or 86 inducement of an abortion, including paying for or reimbursing the costs of an abortion 87 through insurance or otherwise, if the abortion is performed or induced in violation of 88 this chapter, regardless of whether the person knew or should have known that the 89 abortion would be performed or induced in violation of this chapter; or 90 (c) Intends to engage in the conduct described under paragraph (a) or (b) of this 91 subdivision. 92 (2) If a claimant prevails in an action brought under this subsection, the court 93 shall award: 94 (a) Injunctive relief sufficient to prevent the defendant from violating this 95 chapter or engaging in acts that aid or abet violations of this chapter; 96 (b) Statutory damages in an amount of not less than ten thousand dollars for 97 each abortion that the defendant performed or induced in violation of this chapter and 98 for each abortion performed or induced in violation of this chapter that the defendant 99 aided or abetted; 100 (c) Nominal and compensatory damages if the plaintiff has suffered harm from 101 the defendant's conduct including, but not limited to, loss of consortium and emotional 102 distress; and 103 (d) Costs and attorney's fees. HB 1987 23 104 (3) Notwithstanding subdivision (2) of this subsection, a court shall not award 105 relief under this subsection in response to a violation of paragraph (a) or (b) of 106 subdivision (1) of this subsection if the defendant demonstrates that the defendant 107 previously paid the full amount of statutory damages under paragraph (b) of 108 subdivision (2) of this subsection in a previous action for that particular abortion 109 performed or induced in violation of this chapter, or for the particular conduct that 110 aided or abetted an abortion performed or induced in violation of this chapter. 111 (4) Notwithstanding any other provision of law, a person shall bring an action 112 under this section within six years of the date the cause of action accrues. 113 (5) Notwithstanding any other provision of law, the following are not a defense to 114 an action brought under this subsection: 115 (a) Ignorance or mistake of law; 116 (b) A defendant's belief that the requirements of this chapter are 117 unconstitutional or were unconstitutional; 118 (c) A defendant's reliance on any court decision that has been overruled on 119 appeal or by a subsequent court, even if that court decision had not been overruled at 120 the time the defendant engaged in conduct that violates this chapter; 121 (d) A defendant's reliance on any state or federal court decision that is not 122 binding on the court in which the action has been brought; 123 (e) Nonmutual issue preclusion or nonmutual claim preclusion; 124 (f) The consent of the unborn child's mother to the abortion; or 125 (g) Any claim that the enforcement of this subsection or the imposition of civil 126 liability against the defendant will violate the constitutional rights of third parties, 127 except as provided under subsection 11 of this section. 128 (6) It is an affirmative defense to an action brought under this subsection if: 129 (a) A defendant against whom an action is brought under paragraph (b) of 130 subdivision (1) of this subsection reasonably believed, after conducting a reasonable 131 investigation, that the physician performing or inducing the abortion had complied or 132 would comply with this chapter; or 133 (b) A defendant against whom an action is brought under paragraph (c) of 134 subdivision (1) of this subsection reasonably believed, after conducting a reasonable 135 investigation, that the physician performing or inducing the abortion would comply 136 with this chapter. 137 138 The defendant has the burden of proving an affirmative defense under paragraph (a) or 139 (b) of this subdivision by a preponderance of the evidence. HB 1987 24 140 (7) This subsection shall not be construed to impose liability on any speech or 141 conduct protected by the First Amendment of the Constitution of the United States, as 142 made applicable to the states through the United States Supreme Court's interpretation 143 of the Fourteenth Amendment of the Constitution of the United States, or by Article I, 144 Section 8 of the Constitution of Missouri. 145 (8) Neither the state nor a political subdivision, prosecuting attorney, or an 146 executive or administrative officer or employee of the state or of a political subdivision 147 shall act in concert or participate with anyone who brings suit under subsection 10 of 148 this section or intervene in an action brought under this section. This subsection does 149 not prohibit a person or entity described under this subsection from filing an amicus 150 curiae brief in an action as long as that person or entity does not act in concert or 151 participation with the plaintiff or plaintiffs who bring an action under this section. 152 (9) Notwithstanding any other provision of law, a court shall not award costs or 153 attorney's fees under the Missouri Rules of Civil Procedure or any other law to a 154 defendant in an action brought under this subsection unless it is determined that the 155 plaintiff's claim was frivolous, malicious, or brought in bad faith. 156 (10) A court shall not find that an action brought under this subsection is 157 frivolous, malicious, or brought in bad faith under subdivision (9) of this subsection if 158 the plaintiff: 159 (a) Reasonably believed that the defendant performed or induced an abortion in 160 violation of any requirement or provision of this chapter, engaged in conduct that aided 161 or abetted the performance or inducement of such an abortion, or intended to engage in 162 any such conduct, regardless of whether a previous court decision declared a 163 requirement or provision of this chapter unconstitutional; or 164 (b) Brings suit seeking to overrule on appeal any previous court decision ruling 165 that a requirement or provision of this chapter is unconstitutional. 166 (11) Notwithstanding any other provision of law, the provisions of sections 1.302 167 and 537.528 shall have no application to any civil action brought under this section. 168 (12) Notwithstanding any other provision of law, a civil action under this 169 subsection shall not be brought by a person who impregnated the abortion patient 170 through an act of rape, sexual assault, or incest. 171 (13) Notwithstanding any other provision of law, a civil action under this section 172 shall not be brought against a person who performed or aided or abetted an abortion at 173 the behest of federal agencies, contractors, or employees that are carrying out duties 174 under federal law, if a prohibition on that abortion would violate the doctrines of 175 preemption or intergovernmental immunity. HB 1987 25 176 (14) Notwithstanding any other provision of law, a civil action under this section 177 shall not be brought against a common carrier who transports a pregnant woman to an 178 abortion provider, if the common carrier is unaware that the woman intends to abort 179 her unborn child. 180 11. (1) A defendant against whom an action is brought under subsection 10 of 181 this section may assert an affirmative defense to liability if: 182 (a) The defendant has standing to assert the rights of a woman or group of 183 women seeking an abortion under the tests for third-party standing established by the 184 Supreme Court of the United States; and 185 (b) The imposition of civil liability on the defendant will result in an undue 186 burden on such abortion-seeking woman or group of abortion-seeking women. 187 188 The defendant has the burden of proving an affirmative defense under this subsection 189 by a preponderance of evidence. 190 (2) The affirmative defense under subdivision (1) of this subsection is not 191 available if the United States Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973) 192 or Planned Parenthood v. Casey, 505 U.S. 833 (1992), regardless of whether the conduct 193 on which the cause of action is based occurred before the Supreme Court overruled 194 either of those decisions. 195 (3) Nothing in this section or chapter shall in any way limit or preclude a 196 defendant from asserting the defendant's personal constitutional rights as a defense to 197 liability, and a court shall not award relief if the conduct for which the defendant has 198 been sued was an exercise of state or federal constitutional rights that personally belong 199 to the defendant. 200 (4) Nothing in this section or chapter shall limit or preclude a defendant from 201 asserting the unconstitutionality of any provision of Missouri law as a defense to liability 202 under subsection 10 of this section. 203 12. (1) Notwithstanding any other provision of law, a civil action brought under 204 subsection 10 of this section shall be brought in: 205 (a) The county in which all or a substantial part of the events or omissions giving 206 rise to the claim occurred; 207 (b) The county of residence for any one of the natural person defendants at the 208 time the cause of action accrued; 209 (c) The county of the principal office in this state of any one of the defendants 210 that is not a natural person; or 211 (d) The county of residence for the claimant if the claimant is a natural person 212 residing in this state. HB 1987 26 213 (2) If a civil action is brought under subsection 10 of this section in any one of the 214 venues described under subdivision (1) of this subsection, the action shall not be 215 transferred to a different venue without the written consent of all parties. 216 13. (1) Notwithstanding any other provision of law, the state shall have 217 sovereign immunity, each of its political subdivisions shall have governmental immunity, 218 and each officer and employee of the state or a political subdivision shall have official 219 immunity in any action, claim, or counterclaim or any type of legal or equitable action 220 that challenges the validity of any provision or application of this chapter, on 221 constitutional grounds or otherwise, or that seeks to prevent or enjoin the state, its 222 political subdivisions, or any officer or employee of this state or a political subdivision 223 from enforcing any provision or application of this chapter, unless that immunity has 224 been abrogated or preempted by federal law in a manner consistent with the 225 Constitution of the United States. 226 (2) Notwithstanding any other provision of law, no provision of state law shall be 227 construed to waive or abrogate an immunity described under subdivision (1) of this 228 subsection unless it expressly waives or abrogates immunity by specifically referencing 229 this section. 230 (3) Notwithstanding any other provision of law, no attorney representing the 231 state, its political subdivisions, or any officer or employee of this state or a political 232 subdivision is authorized or permitted to waive an immunity described in subdivision 233 (1) of this subsection or take any action that would result in a waiver of such immunity. 234 (4) Notwithstanding any other provision of law, no court of this state shall have 235 jurisdiction to consider any action, claim, or counterclaim that seeks declaratory or 236 injunctive relief to prevent the state, its political subdivisions, any officer or employee of 237 this state or a political subdivision, or any person from enforcing any provision or 238 application of this chapter, or from filing a civil action under subsection 10 of this 239 section. 240 (5) Nothing in this subsection or chapter shall be construed to prevent a litigant 241 from asserting the invalidity or unconstitutionality of any provision or application of 242 Missouri law as a defense to any action, claim, or counterclaim brought against that 243 litigant. 244 14. (1) It is the intent of the general assembly that every provision, section, 245 subsection, sentence, clause, phrase, and word in this chapter, and every application of 246 the provisions in this chapter, is severable from each other. 247 (2) If any application of any provision in this chapter to any person, group of 248 persons, or circumstances is found by a court to be invalid, preempted, unconstitutional, 249 or to impose an undue burden, the remaining applications of that provision to all other HB 1987 27 250 persons and circumstances shall be severed and preserved, and shall remain in effect. 251 All constitutionally valid applications of the provisions of law contained in this chapter 252 shall be severed from any applications that a court finds to be invalid, preempted, 253 unconstitutional, or to impose an undue burden on women seeking abortions, and the 254 valid applications shall remain in force because it is the general assembly's intent and 255 priority that every valid application be allowed to stand alone. Even if a reviewing court 256 finds a provision of this chapter to impose an undue burden in a large or substantial 257 fraction of relevant cases, the applications that do not present an undue burden shall be 258 severed from the remaining applications and shall remain in force and shall be treated 259 as if the general assembly had enacted a statute limited to the persons, group of persons, 260 or circumstances for which the statute's application does not present an undue burden. 261 (3) The general assembly further declares that it would have enacted this 262 chapter, and each provision, section, subsection, sentence, clause, phrase, and all 263 constitutional applications of this chapter, irrespective of the fact that any provision, 264 section, subsection, sentence, clause, phrase, or word or applications of this chapter 265 were to be declared invalid, preempted, unconstitutional, or to impose an undue burden. 266 (4) If any provision of this chapter is found by any court to be unconstitutionally 267 vague, the applications of that provision that do not present constitutional vagueness 268 problems shall be severed and remain in force, consistent with the severability 269 requirements of subdivisions (1), (2), and (3) of this subsection. 270 (5) No court shall decline to enforce the severability requirements of this 271 subsection on the ground that severance would rewrite the statute or involve the court in 272 legislative or lawmaking activity. A court that declines to enforce or enjoins a state 273 official from enforcing a statutory provision does not rewrite a statute, as the statute 274 continues to contain the same words as before the court's decision. A judicial injunction 275 or declaration of unconstitutionality: 276 (a) Is nothing more than an edict prohibiting enforcement that may 277 subsequently be vacated by a later court if that court has a different understanding 278 of the requirements of the Constitution of the United States or the Constitution of 279 Missouri; 280 (b) Is not a formal amendment of the language in a statute; and 281 (c) No more rewrites a statute than a decision by the executive not to enforce a 282 duly enacted statute in a limited and defined set of circumstances. 283 (6) If any state or federal court disregards the severability requirements of 284 subdivisions (1), (2), (3), (4), and (5) of this subsection, and declares or finds any 285 provision of this chapter facially unconstitutional when there are discrete applications of 286 that provision that can be enforced against a person, group of persons, or circumstances HB 1987 28 287 without violating federal law, the federal or state constitution, or imposing an undue 288 burden on women seeking abortions, that provision shall be interpreted, as a matter of 289 state law, as if the general assembly had enacted a provision limited to the persons, 290 group of persons, or circumstances for which the provision's applications will not violate 291 federal law, the federal or state constitution, or impose an undue burden on women 292 seeking abortions, and every court shall adopt this saving construction of that provision 293 until the court ruling that pronounced the provision facially unconstitutional is vacated 294 or overruled. 208.152. 1. MO HealthNet payments shall be made on behalf of those eligible needy 2 persons as described in section 208.151 who are unable to provide for it in whole or in part, 3 with any payments to be made on the basis of the reasonable cost of the care or reasonable 4 charge for the services as defined and determined by the MO HealthNet division, unless 5 otherwise hereinafter provided, for the following: 6 (1) Inpatient hospital services, except to persons in an institution for mental diseases 7 who are under the age of sixty-five years and over the age of twenty-one years; provided that 8 the MO HealthNet division shall provide through rule and regulation an exception process for 9 coverage of inpatient costs in those cases requiring treatment beyond the seventy-fifth 10 percentile professional activities study (PAS) or the MO HealthNet children's diagnosis 11 length-of-stay schedule; and provided further that the MO HealthNet division shall take into 12 account through its payment system for hospital services the situation of hospitals which 13 serve a disproportionate number of low-income patients; 14 (2) All outpatient hospital services, payments therefor to be in amounts which 15 represent no more than eighty percent of the lesser of reasonable costs or customary charges 16 for such services, determined in accordance with the principles set forth in Title XVIII A and 17 B, Public Law 89-97, 1965 amendments to the federal Social Security Act (42 U.S.C. Section 18 301, et seq.), but the MO HealthNet division may evaluate outpatient hospital services 19 rendered under this section and deny payment for services which are determined by the MO 20 HealthNet division not to be medically necessary, in accordance with federal law and 21 regulations; 22 (3) Laboratory and X-ray services; 23 (4) Nursing home services for participants, except to persons with more than five 24 hundred thousand dollars equity in their home or except for persons in an institution for 25 mental diseases who are under the age of sixty-five years, when residing in a hospital licensed 26 by the department of health and senior services or a nursing home licensed by the department 27 of health and senior services or appropriate licensing authority of other states or government- 28 owned and -operated institutions which are determined to conform to standards equivalent to 29 licensing requirements in Title XIX of the federal Social Security Act (42 U.S.C. Section 301, HB 1987 29 30 et seq.), as amended, for nursing facilities. The MO HealthNet division may recognize 31 through its payment methodology for nursing facilities those nursing facilities which serve a 32 high volume of MO HealthNet patients. The MO HealthNet division when determining the 33 amount of the benefit payments to be made on behalf of persons under the age of twenty-one 34 in a nursing facility may consider nursing facilities furnishing care to persons under the age of 35 twenty-one as a classification separate from other nursing facilities; 36 (5) Nursing home costs for participants receiving benefit payments under subdivision 37 (4) of this subsection for those days, which shall not exceed twelve per any period of six 38 consecutive months, during which the participant is on a temporary leave of absence from the 39 hospital or nursing home, provided that no such participant shall be allowed a temporary 40 leave of absence unless it is specifically provided for in his or her plan of care. As used in 41 this subdivision, the term "temporary leave of absence" shall include all periods of time 42 during which a participant is away from the hospital or nursing home overnight because he or 43 she is visiting a friend or relative; 44 (6) Physicians' services, whether furnished in the office, home, hospital, nursing 45 home, or elsewhere; provided that, no funds shall be expended to any abortion facility, as 46 defined in section 188.015, or to any affiliate or associate of such abortion facility; 47 (7) Subject to appropriation, up to twenty visits per year for services limited to 48 examinations, diagnoses, adjustments, and manipulations and treatments of malpositioned 49 articulations and structures of the body provided by licensed chiropractic physicians 50 practicing within their scope of practice. Nothing in this subdivision shall be interpreted to 51 otherwise expand MO HealthNet services; 52 (8) Drugs and medicines when prescribed by a licensed physician, dentist, podiatrist, 53 or an advanced practice registered nurse; except that no payment for drugs and medicines 54 prescribed on and after January 1, 2006, by a licensed physician, dentist, podiatrist, or an 55 advanced practice registered nurse may be made on behalf of any person who qualifies for 56 prescription drug coverage under the provisions of P.L. 108-173; 57 (9) Emergency ambulance services and, effective January 1, 1990, medically 58 necessary transportation to scheduled, physician-prescribed nonelective treatments; 59 (10) Early and periodic screening and diagnosis of individuals who are under the age 60 of twenty-one to ascertain their physical or mental defects, and health care, treatment, and 61 other measures to correct or ameliorate defects and chronic conditions discovered thereby. 62 Such services shall be provided in accordance with the provisions of Section 6403 of P.L. 63 101-239 and federal regulations promulgated thereunder; 64 (11) Home health care services; 65 (12) Family planning as defined by federal rules and regulations; provided that, no 66 funds shall be expended to any abortion facility, as defined in section 188.015, or to any HB 1987 30 67 affiliate or associate of such abortion facility; and further provided, however, that such 68 family planning services shall not include abortions or any abortifacient drug or device that is 69 used for the purpose of inducing an abortion unless such abortions are certified in writing by a 70 physician to the MO HealthNet agency that, in the physician's professional judgment, the life 71 of the mother would be endangered if the fetus were carried to term; 72 (13) Inpatient psychiatric hospital services for individuals under age twenty-one as 73 defined in Title XIX of the federal Social Security Act (42 U.S.C. Section 1396d, et seq.); 74 (14) Outpatient surgical procedures, including presurgical diagnostic services 75 performed in ambulatory surgical facilities which are licensed by the department of health 76 and senior services of the state of Missouri; except, that such outpatient surgical services shall 77 not include persons who are eligible for coverage under Part B of Title XVIII, Public Law 89- 78 97, 1965 amendments to the federal Social Security Act, as amended, if exclusion of such 79 persons is permitted under Title XIX, Public Law 89-97, 1965 amendments to the federal 80 Social Security Act, as amended; 81 (15) Personal care services which are medically oriented tasks having to do with a 82 person's physical requirements, as opposed to housekeeping requirements, which enable a 83 person to be treated by his or her physician on an outpatient rather than on an inpatient or 84 residential basis in a hospital, intermediate care facility, or skilled nursing facility. Personal 85 care services shall be rendered by an individual not a member of the participant's family who 86 is qualified to provide such services where the services are prescribed by a physician in 87 accordance with a plan of treatment and are supervised by a licensed nurse. Persons eligible 88 to receive personal care services shall be those persons who would otherwise require 89 placement in a hospital, intermediate care facility, or skilled nursing facility. Benefits payable 90 for personal care services shall not exceed for any one participant one hundred percent of the 91 average statewide charge for care and treatment in an intermediate care facility for a 92 comparable period of time. Such services, when delivered in a residential care facility or 93 assisted living facility licensed under chapter 198 shall be authorized on a tier level based on 94 the services the resident requires and the frequency of the services. A resident of such facility 95 who qualifies for assistance under section 208.030 shall, at a minimum, if prescribed by a 96 physician, qualify for the tier level with the fewest services. The rate paid to providers for 97 each tier of service shall be set subject to appropriations. Subject to appropriations, each 98 resident of such facility who qualifies for assistance under section 208.030 and meets the 99 level of care required in this section shall, at a minimum, if prescribed by a physician, be 100 authorized up to one hour of personal care services per day. Authorized units of personal care 101 services shall not be reduced or tier level lowered unless an order approving such reduction or 102 lowering is obtained from the resident's personal physician. Such authorized units of personal 103 care services or tier level shall be transferred with such resident if he or she transfers to HB 1987 31 104 another such facility. Such provision shall terminate upon receipt of relevant waivers from 105 the federal Department of Health and Human Services. If the Centers for Medicare and 106 Medicaid Services determines that such provision does not comply with the state plan, this 107 provision shall be null and void. The MO HealthNet division shall notify the revisor of 108 statutes as to whether the relevant waivers are approved or a determination of noncompliance 109 is made; 110 (16) Mental health services. The state plan for providing medical assistance under 111 Title XIX of the Social Security Act, 42 U.S.C. Section 301, as amended, shall include the 112 following mental health services when such services are provided by community mental 113 health facilities operated by the department of mental health or designated by the department 114 of mental health as a community mental health facility or as an alcohol and drug abuse facility 115 or as a child-serving agency within the comprehensive children's mental health service system 116 established in section 630.097. The department of mental health shall establish by 117 administrative rule the definition and criteria for designation as a community mental health 118 facility and for designation as an alcohol and drug abuse facility. Such mental health services 119 shall include: 120 (a) Outpatient mental health services including preventive, diagnostic, therapeutic, 121 rehabilitative, and palliative interventions rendered to individuals in an individual or group 122 setting by a mental health professional in accordance with a plan of treatment appropriately 123 established, implemented, monitored, and revised under the auspices of a therapeutic team as 124 a part of client services management; 125 (b) Clinic mental health services including preventive, diagnostic, therapeutic, 126 rehabilitative, and palliative interventions rendered to individuals in an individual or group 127 setting by a mental health professional in accordance with a plan of treatment appropriately 128 established, implemented, monitored, and revised under the auspices of a therapeutic team as 129 a part of client services management; 130 (c) Rehabilitative mental health and alcohol and drug abuse services including home 131 and community-based preventive, diagnostic, therapeutic, rehabilitative, and palliative 132 interventions rendered to individuals in an individual or group setting by a mental health 133 or alcohol and drug abuse professional in accordance with a plan of treatment appropriately 134 established, implemented, monitored, and revised under the auspices of a therapeutic team as 135 a part of client services management. As used in this section, mental health professional and 136 alcohol and drug abuse professional shall be defined by the department of mental health 137 pursuant to duly promulgated rules. With respect to services established by this subdivision, 138 the department of social services, MO HealthNet division, shall enter into an agreement with 139 the department of mental health. Matching funds for outpatient mental health services, clinic 140 mental health services, and rehabilitation services for mental health and alcohol and drug HB 1987 32 141 abuse shall be certified by the department of mental health to the MO HealthNet division. 142 The agreement shall establish a mechanism for the joint implementation of the provisions of 143 this subdivision. In addition, the agreement shall establish a mechanism by which rates for 144 services may be jointly developed; 145 (17) Such additional services as defined by the MO HealthNet division to be 146 furnished under waivers of federal statutory requirements as provided for and authorized by 147 the federal Social Security Act (42 U.S.C. Section 301, et seq.) subject to appropriation by the 148 general assembly; 149 (18) The services of an advanced practice registered nurse with a collaborative 150 practice agreement to the extent that such services are provided in accordance with chapters 151 334 and 335, and regulations promulgated thereunder; 152 (19) Nursing home costs for participants receiving benefit payments under 153 subdivision (4) of this subsection to reserve a bed for the participant in the nursing home 154 during the time that the participant is absent due to admission to a hospital for services which 155 cannot be performed on an outpatient basis, subject to the provisions of this subdivision: 156 (a) The provisions of this subdivision shall apply only if: 157 a. The occupancy rate of the nursing home is at or above ninety-seven percent of MO 158 HealthNet certified licensed beds, according to the most recent quarterly census provided to 159 the department of health and senior services which was taken prior to when the participant is 160 admitted to the hospital; and 161 b. The patient is admitted to a hospital for a medical condition with an anticipated 162 stay of three days or less; 163 (b) The payment to be made under this subdivision shall be provided for a maximum 164 of three days per hospital stay; 165 (c) For each day that nursing home costs are paid on behalf of a participant under this 166 subdivision during any period of six consecutive months such participant shall, during the 167 same period of six consecutive months, be ineligible for payment of nursing home costs of 168 two otherwise available temporary leave of absence days provided under subdivision (5) of 169 this subsection; and 170 (d) The provisions of this subdivision shall not apply unless the nursing home 171 receives notice from the participant or the participant's responsible party that the participant 172 intends to return to the nursing home following the hospital stay. If the nursing home receives 173 such notification and all other provisions of this subsection have been satisfied, the nursing 174 home shall provide notice to the participant or the participant's responsible party prior to 175 release of the reserved bed; HB 1987 33 176 (20) Prescribed medically necessary durable medical equipment. An electronic web- 177 based prior authorization system using best medical evidence and care and treatment 178 guidelines consistent with national standards shall be used to verify medical need; 179 (21) Hospice care. As used in this subdivision, the term "hospice care" means a 180 coordinated program of active professional medical attention within a home, outpatient and 181 inpatient care which treats the terminally ill patient and family as a unit, employing a 182 medically directed interdisciplinary team. The program provides relief of severe pain or other 183 physical symptoms and supportive care to meet the special needs arising out of physical, 184 psychological, spiritual, social, and economic stresses which are experienced during the final 185 stages of illness, and during dying and bereavement and meets the Medicare requirements for 186 participation as a hospice as are provided in 42 CFR Part 418. The rate of reimbursement 187 paid by the MO HealthNet division to the hospice provider for room and board furnished by a 188 nursing home to an eligible hospice patient shall not be less than ninety-five percent of the 189 rate of reimbursement which would have been paid for facility services in that nursing home 190 facility for that patient, in accordance with subsection (c) of Section 6408 of P.L. 101-239 191 (Omnibus Budget Reconciliation Act of 1989); 192 (22) Prescribed medically necessary dental services. Such services shall be subject to 193 appropriations. An electronic web-based prior authorization system using best medical 194 evidence and care and treatment guidelines consistent with national standards shall be used to 195 verify medical need; 196 (23) Prescribed medically necessary optometric services. Such services shall be 197 subject to appropriations. An electronic web-based prior authorization system using best 198 medical evidence and care and treatment guidelines consistent with national standards shall 199 be used to verify medical need; 200 (24) Blood clotting products-related services. For persons diagnosed with a bleeding 201 disorder, as defined in section 338.400, reliant on blood clotting products, as defined in 202 section 338.400, such services include: 203 (a) Home delivery of blood clotting products and ancillary infusion equipment and 204 supplies, including the emergency deliveries of the product when medically necessary; 205 (b) Medically necessary ancillary infusion equipment and supplies required to 206 administer the blood clotting products; and 207 (c) Assessments conducted in the participant's home by a pharmacist, nurse, or local 208 home health care agency trained in bleeding disorders when deemed necessary by the 209 participant's treating physician; 210 (25) The MO HealthNet division shall, by January 1, 2008, and annually thereafter, 211 report the status of MO HealthNet provider reimbursement rates as compared to one hundred 212 percent of the Medicare reimbursement rates and compared to the average dental HB 1987 34 213 reimbursement rates paid by third-party payors licensed by the state. The MO HealthNet 214 division shall, by July 1, 2008, provide to the general assembly a four-year plan to achieve 215 parity with Medicare reimbursement rates and for third-party payor average dental 216 reimbursement rates. Such plan shall be subject to appropriation and the division shall 217 include in its annual budget request to the governor the necessary funding needed to complete 218 the four-year plan developed under this subdivision. 219 2. Additional benefit payments for medical assistance shall be made on behalf of 220 those eligible needy children, pregnant women and blind persons with any payments to be 221 made on the basis of the reasonable cost of the care or reasonable charge for the services as 222 defined and determined by the MO HealthNet division, unless otherwise hereinafter provided, 223 for the following: 224 (1) Dental services; 225 (2) Services of podiatrists as defined in section 330.010; 226 (3) Optometric services as described in section 336.010; 227 (4) Orthopedic devices or other prosthetics, including eye glasses, dentures, hearing 228 aids, and wheelchairs; 229 (5) Hospice care. As used in this subdivision, the term "hospice care" means a 230 coordinated program of active professional medical attention within a home, outpatient and 231 inpatient care which treats the terminally ill patient and family as a unit, employing a 232 medically directed interdisciplinary team. The program provides relief of severe pain or other 233 physical symptoms and supportive care to meet the special needs arising out of physical, 234 psychological, spiritual, social, and economic stresses which are experienced during the final 235 stages of illness, and during dying and bereavement and meets the Medicare requirements for 236 participation as a hospice as are provided in 42 CFR Part 418. The rate of reimbursement 237 paid by the MO HealthNet division to the hospice provider for room and board furnished by a 238 nursing home to an eligible hospice patient shall not be less than ninety-five percent of the 239 rate of reimbursement which would have been paid for facility services in that nursing home 240 facility for that patient, in accordance with subsection (c) of Section 6408 of P.L. 101-239 241 (Omnibus Budget Reconciliation Act of 1989); 242 (6) Comprehensive day rehabilitation services beginning early posttrauma as part of a 243 coordinated system of care for individuals with disabling impairments. Rehabilitation 244 services must be based on an individualized, goal-oriented, comprehensive and coordinated 245 treatment plan developed, implemented, and monitored through an interdisciplinary 246 assessment designed to restore an individual to optimal level of physical, cognitive, and 247 behavioral function. The MO HealthNet division shall establish by administrative rule the 248 definition and criteria for designation of a comprehensive day rehabilitation service facility, 249 benefit limitations and payment mechanism. Any rule or portion of a rule, as that term is HB 1987 35 250 defined in section 536.010, that is created under the authority delegated in this subdivision 251 shall become effective only if it complies with and is subject to all of the provisions of 252 chapter 536 and, if applicable, section 536.028. This section and chapter 536 are 253 nonseverable and if any of the powers vested with the general assembly pursuant to chapter 254 536 to review, to delay the effective date, or to disapprove and annul a rule are subsequently 255 held unconstitutional, then the grant of rulemaking authority and any rule proposed or 256 adopted after August 28, 2005, shall be invalid and void. 257 3. The MO HealthNet division may require any participant receiving MO HealthNet 258 benefits to pay part of the charge or cost until July 1, 2008, and an additional payment after 259 July 1, 2008, as defined by rule duly promulgated by the MO HealthNet division, for all 260 covered services except for those services covered under subdivisions (15) and (16) of 261 subsection 1 of this section and sections 208.631 to 208.657 to the extent and in the manner 262 authorized by Title XIX of the federal Social Security Act (42 U.S.C. Section 1396, et seq.) 263 and regulations thereunder. When substitution of a generic drug is permitted by the prescriber 264 according to section 338.056, and a generic drug is substituted for a name-brand drug, the 265 MO HealthNet division may not lower or delete the requirement to make a co-payment 266 pursuant to regulations of Title XIX of the federal Social Security Act. A provider of goods 267 or services described under this section must collect from all participants the additional 268 payment that may be required by the MO HealthNet division under authority granted herein, 269 if the division exercises that authority, to remain eligible as a provider. Any payments made 270 by participants under this section shall be in addition to and not in lieu of payments made by 271 the state for goods or services described herein except the participant portion of the pharmacy 272 professional dispensing fee shall be in addition to and not in lieu of payments to pharmacists. 273 A provider may collect the co-payment at the time a service is provided or at a later date. A 274 provider shall not refuse to provide a service if a participant is unable to pay a required 275 payment. If it is the routine business practice of a provider to terminate future services to an 276 individual with an unclaimed debt, the provider may include uncollected co-payments under 277 this practice. Providers who elect not to undertake the provision of services based on a 278 history of bad debt shall give participants advance notice and a reasonable opportunity for 279 payment. A provider, representative, employee, independent contractor, or agent of a 280 pharmaceutical manufacturer shall not make co-payment for a participant. This subsection 281 shall not apply to other qualified children, pregnant women, or blind persons. If the Centers 282 for Medicare and Medicaid Services does not approve the MO HealthNet state plan 283 amendment submitted by the department of social services that would allow a provider to 284 deny future services to an individual with uncollected co-payments, the denial of services 285 shall not be allowed. The department of social services shall inform providers regarding the 286 acceptability of denying services as the result of unpaid co-payments. HB 1987 36 287 4. The MO HealthNet division shall have the right to collect medication samples from 288 participants in order to maintain program integrity. 289 5. Reimbursement for obstetrical and pediatric services under subdivision (6) of 290 subsection 1 of this section shall be timely and sufficient to enlist enough health care 291 providers so that care and services are available under the state plan for MO HealthNet 292 benefits at least to the extent that such care and services are available to the general 293 population in the geographic area, as required under subparagraph (a)(30)(A) of 42 U.S.C. 294 Section 1396a and federal regulations promulgated thereunder. 295 6. Beginning July 1, 1990, reimbursement for services rendered in federally funded 296 health centers shall be in accordance with the provisions of subsection 6402(c) and Section 297 6404 of P.L. 101-239 (Omnibus Budget Reconciliation Act of 1989) and federal regulations 298 promulgated thereunder. 299 7. Beginning July 1, 1990, the department of social services shall provide notification 300 and referral of children below age five, and pregnant, breast-feeding, or postpartum women 301 who are determined to be eligible for MO HealthNet benefits under section 208.151 to the 302 special supplemental food programs for women, infants and children administered by the 303 department of health and senior services. Such notification and referral shall conform to the 304 requirements of Section 6406 of P.L. 101-239 and regulations promulgated thereunder. 305 8. Providers of long-term care services shall be reimbursed for their costs in 306 accordance with the provisions of Section 1902 (a)(13)(A) of the Social Security Act, 42 307 U.S.C. Section 1396a, as amended, and regulations promulgated thereunder. 308 9. Reimbursement rates to long-term care providers with respect to a total change in 309 ownership, at arm's length, for any facility previously licensed and certified for participation 310 in the MO HealthNet program shall not increase payments in excess of the increase that 311 would result from the application of Section 1902 (a)(13)(C) of the Social Security Act, 42 312 U.S.C. Section 1396a (a)(13)(C). 313 10. The MO HealthNet division may enroll qualified residential care facilities and 314 assisted living facilities, as defined in chapter 198, as MO HealthNet personal care providers. 315 11. Any income earned by individuals eligible for certified extended employment at a 316 sheltered workshop under chapter 178 shall not be considered as income for purposes of 317 determining eligibility under this section. 318 12. If the Missouri Medicaid audit and compliance unit changes any interpretation or 319 application of the requirements for reimbursement for MO HealthNet services from the 320 interpretation or application that has been applied previously by the state in any audit of a MO 321 HealthNet provider, the Missouri Medicaid audit and compliance unit shall notify all affected 322 MO HealthNet providers five business days before such change shall take effect. Failure of 323 the Missouri Medicaid audit and compliance unit to notify a provider of such change shall HB 1987 37 324 entitle the provider to continue to receive and retain reimbursement until such notification is 325 provided and shall waive any liability of such provider for recoupment or other loss of any 326 payments previously made prior to the five business days after such notice has been sent. 327 Each provider shall provide the Missouri Medicaid audit and compliance unit a valid email 328 address and shall agree to receive communications electronically. The notification required 329 under this section shall be delivered in writing by the United States Postal Service or 330 electronic mail to each provider. 331 13. Nothing in this section shall be construed to abrogate or limit the department's 332 statutory requirement to promulgate rules under chapter 536. 333 14. Beginning July 1, 2016, and subject to appropriations, providers of behavioral, 334 social, and psychophysiological services for the prevention, treatment, or management of 335 physical health problems shall be reimbursed utilizing the behavior assessment and 336 intervention reimbursement codes 96150 to 96154 or their successor codes under the 337 Current Procedural Terminology (CPT) coding system. Providers eligible for such 338 reimbursement shall include psychologists. 208.153. 1. Pursuant to and not inconsistent with the provisions of sections 208.151 2 and 208.152, the MO HealthNet division shall by rule and regulation define the reasonable 3 costs, manner, extent, quantity, quality, charges and fees of MO HealthNet benefits herein 4 provided. The benefits available under these sections shall not replace those provided under 5 other federal or state law or under other contractual or legal entitlements of the persons 6 receiving them, and all persons shall be required to apply for and utilize all benefits available 7 to them and to pursue all causes of action to which they are entitled. [Any person entitled to 8 MO HealthNet benefits may obtain it from any provider of services with which an agreement 9 is in effect under this section and which undertakes to provide the services, as authorized by 10 the MO HealthNet division.] At the discretion of the director of the MO HealthNet division 11 and with the approval of the governor, the MO HealthNet division is authorized to provide 12 medical benefits for participants receiving public assistance by expending funds for the 13 payment of federal medical insurance premiums, coinsurance and deductibles pursuant to the 14 provisions of Title XVIII B and XIX, Public Law 89-97, 1965 amendments to the federal 15 Social Security Act (42 U.S.C. 301, et seq.), as amended. 16 2. MO HealthNet shall include benefit payments on behalf of qualified Medicare 17 beneficiaries as defined in 42 U.S.C. Section 1396d(p). The family support division shall by 18 rule and regulation establish which qualified Medicare beneficiaries are eligible. The MO 19 HealthNet division shall define the premiums, deductible and coinsurance provided for in 42 20 U.S.C. Section 1396d(p) to be provided on behalf of the qualified Medicare beneficiaries. 21 3. MO HealthNet shall include benefit payments for Medicare Part A cost sharing as 22 defined in clause (p)(3)(A)(i) of 42 U.S.C. 1396d on behalf of qualified disabled and working HB 1987 38 23 individuals as defined in subsection (s) of Section 42 U.S.C. 1396d as required by subsection 24 (d) of Section 6408 of P.L. 101-239 (Omnibus Budget Reconciliation Act of 1989). The MO 25 HealthNet division may impose a premium for such benefit payments as authorized by 26 paragraph (d)(3) of Section 6408 of P.L. 101-239. 27 4. MO HealthNet shall include benefit payments for Medicare Part B cost sharing 28 described in 42 U.S.C. Section 1396(d)(p)(3)(A)(ii) for individuals described in subsection 2 29 of this section, but for the fact that their income exceeds the income level established by the 30 state under 42 U.S.C. Section 1396(d)(p)(2) but is less than one hundred and ten percent 31 beginning January 1, 1993, and less than one hundred and twenty percent beginning January 32 1, 1995, of the official poverty line for a family of the size involved. 33 5. For an individual eligible for MO HealthNet under Title XIX of the Social Security 34 Act, MO HealthNet shall include payment of enrollee premiums in a group health plan and all 35 deductibles, coinsurance and other cost-sharing for items and services otherwise covered 36 under the state Title XIX plan under Section 1906 of the federal Social Security Act and 37 regulations established under the authority of Section 1906, as may be amended. Enrollment 38 in a group health plan must be cost effective, as established by the Secretary of Health and 39 Human Services, before enrollment in the group health plan is required. If all members of a 40 family are not eligible for MO HealthNet and enrollment of the Title XIX eligible members in 41 a group health plan is not possible unless all family members are enrolled, all premiums for 42 noneligible members shall be treated as payment for MO HealthNet of eligible family 43 members. Payment for noneligible family members must be cost effective, taking into 44 account payment of all such premiums. Non-Title XIX eligible family members shall pay all 45 deductible, coinsurance and other cost-sharing obligations. Each individual as a condition of 46 eligibility for MO HealthNet benefits shall apply for enrollment in the group health plan. 47 6. Any Social Security cost-of-living increase at the beginning of any year shall be 48 disregarded until the federal poverty level for such year is implemented. 49 7. If a MO HealthNet participant has paid the requested spenddown in cash for any 50 month and subsequently pays an out-of-pocket valid medical expense for such month, such 51 expense shall be allowed as a deduction to future required spenddown for up to three months 52 from the date of such expense. 208.164. 1. As used in this section, unless the context clearly requires otherwise, the 2 following terms mean: 3 (1) "Abuse", a documented pattern of inducing, furnishing, or otherwise causing a 4 recipient to receive services or merchandise not otherwise required or requested by the 5 recipient, attending physician or appropriate utilization review team; a documented pattern of 6 performing and billing tests, examinations, patient visits, surgeries, drugs or merchandise that 7 exceed limits or frequencies determined by the department for like practitioners for which HB 1987 39 8 there is no demonstrable need, or for which the provider has created the need through 9 ineffective services or merchandise previously rendered. The decision to impose any of the 10 sanctions authorized in this section shall be made by the director of the department, following 11 a determination of demonstrable need or accepted medical practice made in consultation with 12 medical or other health care professionals, or qualified peer review teams; 13 (2) "Department", the department of social services; 14 (3) "Excessive use", the act, by a person eligible for services under a contract or 15 provider agreement between the department of social services or its divisions and a provider, 16 of seeking and/or obtaining medical assistance benefits from a number of like providers and 17 in quantities which exceed the levels that are considered medically necessary by current 18 medical practices and standards for the eligible person's needs; 19 (4) "Fraud", a known false representation, including the concealment of a material 20 fact that provider knew or should have known through the usual conduct of his profession or 21 occupation, upon which the provider claims reimbursement under the terms and conditions of 22 a contract or provider agreement and the policies pertaining to such contract or provider 23 agreement of the department or its divisions in carrying out the providing of services, or 24 under any approved state plan authorized by the federal Social Security Act; 25 (5) "Health plan", a group of services provided to recipients of medical assistance 26 benefits by providers under a contract with the department; 27 (6) "Medical assistance benefits", those benefits authorized to be provided by sections 28 208.152 and 208.162; 29 (7) "Prior authorization", approval to a provider to perform a service or services for 30 an eligible person required by the department or its divisions in advance of the actual service 31 being provided or approved for a recipient to receive a service or services from a provider, 32 required by the department or its designated division in advance of the actual service or 33 services being received; 34 (8) "Provider", any person, partnership, corporation, not-for-profit corporation, 35 professional corporation, or other business entity that enters into a contract or provider 36 agreement with the department or its divisions for the purpose of providing services to 37 eligible persons, and obtaining from the department or its divisions reimbursement therefor; 38 (9) "Recipient", a person who is eligible to receive medical assistance benefits 39 allocated through the department; 40 (10) "Service", the specific function, act, successive acts, benefits, continuing 41 benefits, requested by an eligible person or provided by the provider under contract with the 42 department or its divisions. 43 2. The department or its divisions shall have the authority to suspend, revoke, or 44 cancel any contract or provider agreement or refuse to enter into a new contract or provider HB 1987 40 45 agreement with any provider where it is determined the provider has committed or allowed its 46 agents, servants, or employees to commit acts defined as abuse or fraud in this section. 47 3. The department or its divisions shall have the authority to impose prior 48 authorization as defined in this section: 49 (1) When it has reasonable cause to believe a provider or recipient has knowingly 50 followed a course of conduct which is defined as abuse or fraud or excessive use by this 51 section; or 52 (2) When it determines by rule that prior authorization is reasonable for a specified 53 service or procedure. 54 4. If a provider or recipient reports to the department or its divisions the name or 55 names of providers or recipients who, based upon their personal knowledge has reasonable 56 cause to believe an act or acts are being committed which are defined as abuse, fraud or 57 excessive use by this section, such report shall be confidential and the reporter's name shall 58 not be divulged to anyone by the department or any of its divisions, except at a judicial 59 proceeding upon a proper protective order being entered by the court. 60 5. Payments for services under any contract or provider agreement between the 61 department or its divisions and a provider may be withheld by the department or its divisions 62 from the provider for acts or omissions defined as abuse or fraud by this section, until such 63 time as an agreement between the parties is reached or the dispute is adjudicated under the 64 laws of this state. 65 6. The department or its designated division shall have the authority to review all 66 cases and claim records for any recipient of public assistance benefits and to determine from 67 these records if the recipient has, as defined in this section, committed excessive use of such 68 services by seeking or obtaining services from a number of like providers of services and in 69 quantities which exceed the levels considered necessary by current medical or health care 70 professional practice standards and policies of the program. 71 7. The department or its designated division shall have the authority with respect to 72 recipients of medical assistance benefits who have committed excessive use to limit or restrict 73 the use of the recipient's Medicaid identification card to designated providers and for 74 designated services; the actual method by which such restrictions are imposed shall be at the 75 discretion of the department of social services or its designated division. 76 8. The department or its designated division shall have the authority with respect to 77 any recipient of medical assistance benefits whose use has been restricted under subsection 7 78 of this section and who obtains or seeks to obtain medical assistance benefits from a provider 79 other than one of the providers for designated services to terminate medical assistance 80 benefits as defined by this chapter, where allowed by the provisions of the federal Social 81 Security Act. HB 1987 41 82 9. The department or its designated division shall have the authority with respect to 83 any provider who knowingly allows a recipient to violate subsection 7 of this section or who 84 fails to report a known violation of subsection 7 of this section to the department of social 85 services or its designated division to terminate or otherwise sanction such provider's status as 86 a participant in the medical assistance program. Any person making such a report shall not be 87 civilly liable when the report is made in good faith. 88 10. In order to comply with the provisions of 42 U.S.C. Section 1320a-7(a) 89 relating to mandatory exclusion of certain individuals and entities from participation in 90 any federal health care program, and in furtherance of the state's authority under 91 federal law, as implemented by 42 CFR 1002.3(b), to exclude an individual or entity 92 from MO HealthNet for any reason or period authorized by state law, the department or 93 its divisions shall suspend, revoke, or cancel any contract or provider agreement or 94 refuse to enter into a new contract or provider agreement with any provider where it is 95 determined that such provider is not qualified to perform the service or services 96 required, as described in 42 U.S.C. Section 1396a(a)(23), because such provider, or such 97 provider's agent, servant, or employee acting under such provider's authority: 98 (1) Has a conviction related to the delivery of any item or service under 99 Medicare or under any state health care program, as described in 42 U.S.C. Section 100 1320a-7(a)(1); 101 (2) Has a conviction related to the neglect or abuse of a patient in connection 102 with the delivery of any health care item or service, as described in 42 U.S.C. Section 103 1320a-7(a)(2); 104 (3) Has a felony conviction related to health care fraud, theft, embezzlement, 105 breach of fiduciary responsibility, or other financial misconduct, as described in 42 106 U.S.C. Section 1320a-7(a)(3); 107 (4) Has a felony conviction related to the unlawful manufacture, distribution, 108 prescription, or dispensation of a controlled substance, as described in 42 U.S.C. Section 109 1320a-7(a)(4); 110 (5) Has been found guilty of a pattern of intentional discrimination in the 111 delivery or nondelivery of any health care item or service based on the race, color, or 112 national origin of recipients, as described in 42 U.S.C. Section 2000d, or was founded by 113 a person who supported eugenics as the solution for racial, political, and social problems 114 and who advocated for the use of birth control for "the elimination of the unfit" and 115 stopping "the reproduction of the unfit"; or 116 (6) Is an abortion facility, as defined in section 188.015, or an affiliate or 117 associate of such abortion facility. HB 1987 42 208.659. The MO HealthNet division shall revise the eligibility requirements for the 2 uninsured women's health program, as established in 13 CSR Section 70- 4.090, to include 3 women who are at least eighteen years of age and with a net family income of at or below one 4 hundred eighty-five percent of the federal poverty level. In order to be eligible for such 5 program, the applicant shall not have assets in excess of two hundred and fifty thousand 6 dollars, nor shall the applicant have access to employer-sponsored health insurance. Such 7 change in eligibility requirements shall not result in any change in services provided under the 8 program. No funds shall be expended to any abortion facility, as defined in section 9 188.015, or to any affiliate or associate of such abortion facility. [188.056. 1. Notwithstanding any other provision of law to the 2 contrary, no abortion shall be performed or induced upon a woman at eight 3 weeks gestational age or later, except in cases of medical emergency. Any 4 person who knowingly performs or induces an abortion of an unborn child in 5 violation of this subsection shall be guilty of a class B felony, as well as 6 subject to suspension or revocation of his or her professional license by his or 7 her professional licensing board. A woman upon whom an abortion is 8 performed or induced in violation of this subsection shall not be prosecuted for 9 a conspiracy to violate the provisions of this section. 10 2. It shall be an affirmative defense for any person alleged to have 11 violated the provisions of subsection 1 of this section that the person 12 performed or induced an abortion because of a medical emergency. The 13 defendant shall have the burden of persuasion that the defense is more 14 probably true than not. 15 3. Prosecution under this section shall bar prosecution under section 16 188.057, 188.058, or 188.375 if prosecution under such sections would violate 17 the provisions of Amendment V to the Constitution of the United States or 18 Article I, Section 19 of the Constitution of Missouri. 19 4. If any one or more provisions, subsections, sentences, clauses, 20 phrases, or words of this section or the application thereof to any person, 21 circumstance, or period of gestational age is found to be unenforceable, 22 unconstitutional, or invalid by a court of competent jurisdiction, the same is 23 hereby declared to be severable and the balance of the section shall remain 24 effective notwithstanding such unenforceability, unconstitutionality, or 25 invalidity. The general assembly hereby declares that it would have passed 26 this section, and each provision, subsection, sentence, clause, phrase, or word 27 thereof, irrespective of the fact that any one or more provisions, subsections, 28 sentences, clauses, phrases, or words of the section, or the application of the 29 section to any person, circumstance, or period of gestational age, would be 30 declared unenforceable, unconstitutional, or invalid.] [188.057. 1. Notwithstanding any other provision of law to the 2 contrary, no abortion shall be performed or induced upon a woman at fourteen 3 weeks gestational age or later, except in cases of medical emergency. Any 4 person who knowingly performs or induces an abortion of an unborn child in 5 violation of this subsection shall be guilty of a class B felony, as well as HB 1987 43 6 subject to suspension or revocation of his or her professional license by his or 7 her professional licensing board. A woman upon whom an abortion is 8 performed or induced in violation of this subsection shall not be prosecuted for 9 a conspiracy to violate the provisions of this section. 10 2. It shall be an affirmative defense for any person alleged to have 11 violated the provisions of subsection 1 of this section that the person 12 performed or induced an abortion because of a medical emergency. The 13 defendant shall have the burden of persuasion that the defense is more 14 probably true than not. 15 3. Prosecution under this section shall bar prosecution under section 16 188.056, 188.058, or 188.375 if prosecution under such sections would violate 17 the provisions of Amendment V to the Constitution of the United States or 18 Article I, Section 19 of the Constitution of Missouri. 19 4. If any one or more provisions, subsections, sentences, clauses, 20 phrases, or words of this section or the application thereof to any person, 21 circumstance, or period of gestational age is found to be unenforceable, 22 unconstitutional, or invalid by a court of competent jurisdiction, the same is 23 hereby declared to be severable and the balance of the section shall remain 24 effective notwithstanding such unenforceability, unconstitutionality, or 25 invalidity. The general assembly hereby declares that it would have passed 26 this section, and each provision, subsection, sentence, clause, phrase, or word 27 thereof, irrespective of the fact that any one or more provisions, subsections, 28 sentences, clauses, phrases, or words of the section, or the application of the 29 section to any person, circumstance, or period of gestational age, would be 30 declared unenforceable, unconstitutional, or invalid.] [188.058. 1. Notwithstanding any other provision of law to the 2 contrary, no abortion shall be performed or induced upon a woman at eighteen 3 weeks gestational age or later, except in cases of medical emergency. Any 4 person who knowingly performs or induces an abortion of an unborn child in 5 violation of this subsection shall be guilty of a class B felony, as well as 6 subject to suspension or revocation of his or her professional license by his or 7 her professional licensing board. A woman upon whom an abortion is 8 performed or induced in violation of this section shall not be prosecuted for a 9 conspiracy to violate the provisions of this section. 10 2. It shall be an affirmative defense for any person alleged to have 11 violated the provisions of subsection 1 of this section that the person 12 performed or induced an abortion because of a medical emergency. The 13 defendant shall have the burden of persuasion that the defense is more 14 probably true than not. 15 3. Prosecution under this section shall bar prosecution under section 16 188.056, 188.057, or 188.375 if prosecution under such sections would violate 17 the provisions of Amendment V to the Constitution of the United States or 18 Article I, Section 19 of the Constitution of Missouri. 19 4. If any one or more provisions, subsections, sentences, clauses, 20 phrases, or words of this section or the application thereof to any person, 21 circumstance, or period of gestational age is found to be unenforceable, 22 unconstitutional, or invalid by a court of competent jurisdiction, the same is HB 1987 44 23 hereby declared to be severable and the balance of the section shall remain 24 effective notwithstanding such unenforceability, unconstitutionality, or 25 invalidity. The general assembly hereby declares that it would have passed 26 this section, and each provision, subsection, sentence, clause, phrase, or word 27 thereof, irrespective of the fact that any one or more provisions, subsections, 28 sentences, clauses, phrases, or words of the section, or the application of the 29 section to any person, circumstance, or period of gestational age, would be 30 declared unenforceable, unconstitutional, or invalid.] ✔ HB 1987 45