Session of 1998
SENATE BILL No. 538
By Senators Emert, Barone, Corbin, Downey, Kerr and
AN ACT concerning abortions; relating to
partial-birth abortions; amend-
10 ing K.S.A. 1997 Supp.
65-6701 and repealing the existing section.
12 Be it enacted by the Legislature of the
State of Kansas:
13 Section 1. K.S.A.
1997 Supp. 65-6701 is hereby amended to read as
14 follows: 65-6701. As used in
(tri-stars)is act K.S.A. 65-6701 through
15 section 2, and amendments
16 (a) ``Abortion'' means
the use of any means to intentionally terminate
17 a pregnancy except for the purpose of
causing a live birth. Abortion does
18 not include: (1) The use of any drug or
device that inhibits or prevents
19 ovulation, fertilization or the
implantation of an embryo; or (2) disposition
20 of the product of in vitro
fertilization prior to implantation.
21 (b) ``Counselor'' means
a person who is: (1) Licensed to practice med-
22 icine and surgery; (2) licensed to practice
psychology; (3) licensed to prac-
23 tice professional or practical nursing; (4)
registered to practice profes-
24 sional counseling; (5) licensed as a social
worker; (6) the holder of a
25 master's or doctor's degree from an
accredited graduate school of social
26 work; (7) registered to practice marriage
and family therapy; (8) a regis-
27 tered physician's assistant; or (9) a
currently ordained member of the
28 clergy or religious authority of any
religious denomination or society.
29 Counselor does not include the physician
who performs or induces the
30 abortion or a physician or other person who
assists in performing or in-
31 ducing the abortion.
32 (c) ``Department'' means
the department of health and environment.
33 (d) ``Gestational age''
means the time that has elapsed since the first
34 day of the woman's last menstrual
35 (e) ``Medical
emergency'' means that condition which, on the basis
36 of the physician's good faith clinical
judgment, so complicates the medical
37 condition of a pregnant woman as to
necessitate the immediate abortion
38 of her pregnancy to avert her death or for
which a delay will create serious
39 risk of substantial and irreversible
impairment of a major bodily function.
40 (f) ``Minor'' means a
person less than 18 years of age.
41 (g) ``Partial-birth
abortion'' means an abortion procedure in which
42 the person performing the abortion
partially vaginally delivers a living
43 fetus before killing the fetus and
completing the delivery.
(h) ``Physician'' means a person licensed to practice
2 surgery in this state.
(i) ``Pregnant'' or ``pregnancy'' means that female
4 condition of having a fetus in the
(j) ``Qualified person'' means an agent of the
physician who is a
6 psychologist, licensed social worker,
registered professional counselor,
7 registered nurse or physician.
(k) ``Unemancipated minor'' means any minor who has
9 (1) Married; or (2) freed, by court
order or otherwise, from the care,
10 custody and control of the minor's
11 (l) ``Vaginally
delivers a living fetus before killing the fetus'' means
12 deliberately and intentionally
delivering into the vagina a living fetus, or
13 a substantial portion thereof, for the
purpose of performing a procedure
14 that the person performing such
procedure knows will kill the fetus and
15 kills the fetus.
(m) ``Viable'' means that stage of gestation when, in
the best med-
17 ical judgment of the attending physician,
the fetus is capable of sustained
18 survival outside the uterus without the
application of extraordinary med-
19 ical means.
20 New Sec. 2. (a) No
partial-birth abortion shall be performed in this
21 state, unless such procedure is necessary
to save the life of the mother
22 whose life is endangered by a physical
disorder, physical illness, or phys-
23 ical injury.
24 (b) The intentional and
knowing performance of an unlawful par-
25 tial-birth abortion in violation of
subsection (1) of this section is a severity
26 level 3, person felony.
27 (c) No woman upon whom
an unlawful partial-birth abortion is per-
28 formed shall be prosecuted under this
section or for conspiracy to violate
29 this section.
30 (d) The intentional and
knowing performance of an unlawful par-
31 tial-birth abortion shall result in the
automatic suspension of an attending
32 physician's license to practice medicine in
Kansas pursuant to K.S.A.
33 65-2836, and amendments thereto, and the
Kansas healing arts act.
34 A physician accused of
violating the provisions of this section may seek
35 a hearing before the state board of healing
arts on whether the physician's
36 conduct was necessary to save the life of
the mother whose life was en-
37 dangered by a physical disorder, physical
illness or physical injury.
38 The findings of the board
shall be admissible on that issue at the trial
39 of the physician. Upon a motion of the
physician, the court shall delay
40 the beginning of the trial for not more
than 30 days to permit such a
41 hearing to take place.
42 (e) The father of the
fetus, if married to the mother at the time of
43 the partial-birth abortion, and if the
mother has not attained the age of
1 18 years at the time of the abortion,
the maternal grandparents of the
2 fetus, may obtain in a civil action
appropriate relief, unless the pregnancy
3 resulted from the plaintiff's
criminal conduct or the plaintiff consented
4 to the abortion. Such relief shall
5 (A) Money damages
for all injuries, psychological and physical, oc-
6 casioned by the violation of this
7 (B) statutory
damages equal to three times the cost of the partial-
8 birth abortion.
Sec. 3. K.S.A. 1997 Supp. 65-6701 is hereby repealed.
10 Sec. 4. This act
shall take effect and be in force from and after its
11 publication in the Kansas register.