Women's Health Protection Act

This form of the Women's Health Protection Act does not attempt to define when life begins, but simply provides simplifies civil remedy for unnecessary and unsafe abortion by defining acts of negligence in regard to unnecessary and unsafe abortions. For the longer version that includes a ban on abortions and legislative findings, click here.

This model bill is in reference to Mississippi Title 11, CIVIL PRACTICE AND PROCEDURE, Chapter 7 PRACTICE AND PROCEDURE IN CIRCUIT COURTS, which includes the state's statute on wrongful death, 11-17-3.

SECTION 1.  Section 11-7 of Mississippi Code of 1972, is amended by adding the NEW SECTION titled "Actions for injuries associated with abortion" to read as follows:

(A) Except in the case of a medical emergency, in addition to whatever requirements exist under the common or statutory law of this state, it is an act of medical negligence to recommend or perform an abortion unless all of the following are true:

(1) A qualified person has evaluated the woman to identify the presence of all statistically significant risk factors for abortion complications;⁽¹⁾

(2) The physician recommending or performing the abortion has in good faith formed a reasonable medical judgment, documented in the permanent record, that the abortion is medically necessary to prevent

(a) the imminent death or serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman,

(b) other serious health risks arising directly from the pregnancy itself, provided that the physician has reasonably determined and documented that the preponderance of statistically validated medical studies demonstrate that the continuance of pregnancy, in such a circumstance and for such a patient, is likely to involve an injuries to the health of the pregnant woman, excluding any associated with raising a child, that significantly exceed the combined physical, psychological, familial, and behavioral risks associated with abortion.

(3) The physician has made a good faith effort to ensure that there are no other available options that can lessen the health risks associated with continuing the pregnancy to a degree less than the health risks associated with an induced abortion.

(B) In addition to whatever remedies are available under the common or statutory law of this state, in the event that an abortion is attempted or completed by a person who is not a licensed physician, the woman upon whom the abortion was attempted or completed, or her survivors, will have a cause of action against said person. Upon establishing by the preponderance of evidence, that said person was not a licensed physician and attempted or completed an abortion on the woman, the plaintiff shall be awarded not less than Eight Hundred Thousand Dollars ($800,000) for reckless endangerment. Proof of injury shall not be required to recover an award for reckless endangerment under this statute.

(C) In addition to whatever remedies are available under the common or statutory law of this state, a woman, or her survivors, who attempted or completed a self-abortion except as prescribed by a physician, will have a cause of action for reckless endangerment and wrongful death against any person who provided, distributed, or sold medical advice to her with the intent to assist or encourage her in performing a self-induced abortion. Upon establishing as a finding of fact or by a preponderance of evidence that a defendant who is not a physician provided, distributed, or sold medical advice with the intent to assist others to perform illegal or self-induced abortions, plaintiff shall be awarded not less than Four Hundred Thousand Dollars ($400,000) for reckless endangerment. Proof of injury shall not be required to recover an award for reckless endangerment under this statute.

(D) Any action for civil remedies based on a failure to comply with the requirements of this section must be brought no later than the longer of ten (10) years after the abortion, or two (2) years after the date woman becomes, or should have been, aware that the abortion was the probable or contributory cause of a physical or emotional complication and has recovered from any psychological complications which may impede the woman's ability to pursue a civil remedy.

(E) For the purposes of this Section:

"Qualified person" means a licensed physician or an agent of the abortion provider who is a licensed psychologist, licensed social worker, licensed professional counselor, or licensed registered nurse.

"Risk factor" means any physical, psychological, behavioral, or situational factor for which there is a statistically significant association to a higher incidence of adverse emotional, psychological, behavioral, familial or physical reactions as compared to individuals who do not possess that risk factor.

"Significant," and "significantly," means statistically tested results, published in one or more peer reviewed scientific journals, wherein there is less than a five percent chance that the observed association between variables is due to chance variations in the selection of the sample/population studied, which equates to the probability statement: P<0.05.

F) In the event that any portion of this act is enjoined and subsequently upheld, the statute of limitations for filing civil suit under the provisions of this statute shall be tolled during the pendency of the injunction and for four (4) years thereafter.

SECTION 2.

Section 11-7-17, Mississippi Code of 1972, is amended as follows:

All questions of negligence and contributory negligence shall be for the jury to determine except as provided by [New Section 1].



ENDNOTES

1. Most women have multiple risk factors and it with the exception of ectopic pregnancies and a few other life threatening conditions, it is generally impossible to demonstrate benefits from surgeries resulting in the death of the unborn child that exceed the known risks. See. Reardon D. The Duty to Screen: Clinical, Legal and Ethical Implications of Predictive Risk Factors of Post-Abortion Maladjustment The Journal of Contemporary Health Law & Policy. 2003 Winter;20(1):33-114