HF 2228

as introduced - 86th Legislature (2009 - 2010) Posted on 02/09/2010 02:00am

A bill for an act
relating to health; establishing certain information displayed prior to an abortion;
adding a wrongful death action; providing civil and criminal penalties; amending
Minnesota Statutes 2008, sections 145.4241, by adding subdivisions; 145.4242;
145.4243; 518B.01, subdivision 2, by adding a subdivision; 573.02, subdivision
1; 609.2242, subdivision 1; proposing coding for new law in Minnesota Statutes,
chapter 145.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [145.4221] SIGN POSTING.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin For purposes of this section, the following terms have
the meaning given.
new text end

new text begin (a) "Abortion" means the use or prescription of any instrument, medicine, drug, or
any other substance or device to intentionally terminate the pregnancy of a female known
to be pregnant, with an intention other than to increase the probability of a live birth, to
preserve the life or health of the child after live birth, to remove a dead unborn child,
or to save the life of the mother.
new text end

new text begin (b) "Coerce" means to use or threaten to use any form of domination, restraint, or
control for the purpose of causing an individual to seek or obtain an abortion. Coercion
exists if the totality of the circumstances establishes the existence of domination, restraint,
or control that would have the reasonably foreseeable effect of causing an individual to
seek or obtain an abortion. Evidence of coercion may include, but is not limited to:
new text end

new text begin (1) physical force or actual or implied threats of physical force;
new text end

new text begin (2) physical or mental torture;
new text end

new text begin (3) implicitly or explicitly leading a woman to believe that the woman will be
protected from violence or arrest;
new text end

new text begin (4) kidnapping;
new text end

new text begin (5) defining the terms of an individual's employment or working conditions in a
manner that can foreseeably lead to the individual seeking or obtaining an abortion;
new text end

new text begin (6) blackmail;
new text end

new text begin (7) extortion or claims of indebtedness;
new text end

new text begin (8) threat of legal complaint or report of delinquency;
new text end

new text begin (9) threat to interfere with parental rights or responsibilities, whether by judicial or
administrative action or otherwise;
new text end

new text begin (10) promise of legal benefit, such as posting bail, procuring an attorney, protecting
from arrest, or promising unionization;
new text end

new text begin (11) promise of financial rewards;
new text end

new text begin (12) promise of marriage;
new text end

new text begin (13) restraining speech or communication with others, such as exploiting a language
difference, or interfering with the use of mail, telephone, or money;
new text end

new text begin (14) isolating the individual from others;
new text end

new text begin (15) exploiting a condition of developmental disability, cognitive limitation,
affective disorder, or substance dependency;
new text end

new text begin (16) taking advantage of lack of intervention by child protection;
new text end

new text begin (17) exploiting victimization by previous sexual abuse or battering;
new text end

new text begin (18) exploiting pornographic performance;
new text end

new text begin (19) interfering with opportunities for education or skills training;
new text end

new text begin (20) destroying property;
new text end

new text begin (21) restraining movement;
new text end

new text begin (22) exploiting HIV status, particularly where the defendant's previous coercion led
to the HIV exposure; or
new text end

new text begin (23) exploiting needs for food, shelter, safety, affection, or intimate or marital
relationships.
new text end

new text begin (c) "Commissioner" means the commissioner of health.
new text end

new text begin (d) "Hospital" means an institution licensed by the commissioner of health;
adequately and properly staffed and equipped; providing services, facilities, and beds for
the reception and care of one or more nonrelated persons for a continuous period longer
than 24 hours for diagnosis, treatment or care of illness, injury, or pregnancy; and regularly
providing clinical laboratory services, diagnostic x-ray services, and treatment facilities for
surgery, obstetrical care, or other definitive medical treatment of similar extent. Hospital
shall not include diagnostic or treatment centers, physicians' offices or clinics, or other
facilities for the foster care of children licensed by the commissioner of human services.
new text end

new text begin (e) "Physician" means a person licensed as a physician or osteopath under chapter
147.
new text end

new text begin (f) "Woman" includes a minor female.
new text end

new text begin Subd. 2. new text end

new text begin Sign posting required. new text end

new text begin (a) Any private office or freestanding outpatient
clinic in which abortions are performed, induced or prescribed for, or where the means
for an abortion are provided shall conspicuously post a sign clearly visible to patients in
each waiting room and patient consultation room used by patients on whom abortions
are performed, induced or prescribed for, or who are provided with the means for an
abortion that reads:
new text end

new text begin "Notice: No one can force you to have an abortion. It is against the law for a spouse,
boyfriend, parent, friend, medical care provider, or any other person, regardless
of that person's relationship to you, to force you to have an abortion. By law we
cannot perform, induce, prescribe for, or provide you with the means for an abortion
unless we have your freely given and voluntary consent. You have the right to
contact any local or state law enforcement agency to receive protection from any
actual or threatened physical injury, abuse, or violence. Private access to a telephone
and information about safe transportation and services available to help will be
provided to you upon request."
new text end

new text begin (b) The sign must be at least 11 inches by 17 inches and printed with lettering that is
legible, in at least 44-point type, and at least one-quarter inch in size.
new text end

new text begin Subd. 3. new text end

new text begin Hospital and referring physician. new text end

new text begin (a) A hospital or any other facility in
which abortions are performed, induced or prescribed for, where the means for an abortion
are provided, or where referrals for abortions are made, that is not a private office or
freestanding outpatient clinic shall conspicuously post a sign clearly visible to patients
in each patient consultation room used by patients on whom abortions are performed,
induced or prescribed for, or who are provided with the means for an abortion that reads:
new text end

new text begin "Notice: No one can force you to have an abortion. It is against the law for a spouse,
boyfriend, parent, friend, medical care provider, or any other person, regardless of
that person's relationship to you, to force you to have an abortion. By law we cannot
perform, induce, prescribe for, or provide you with the means for an abortion unless
we have your freely given and voluntary consent. You have the right to contact
any local or state law enforcement agency to receive protection from any actual or
threatened physical injury, abuse, or violence. Private access to a telephone and
information about safe transportation and services available to help you will be
provided upon request."
new text end

new text begin (b) The sign shall be at least 5.5 inches by 8.5 inches and printed with lettering
that is legible, in at least 20-point type, and at least 3/16 inch in size. The sign must be
made available by the Department of Health.
new text end

new text begin (c) A hospital or any other facility in which abortions are performed, induced
or prescribed for, where the means for an abortion are provided, or where referrals for
abortions are made, that is not a private office or freestanding outpatient clinic, shall
provide the patient on whom abortions are referred for, performed, induced or prescribed
for, or who are provided with the means for an abortion, with the handout described
in subdivision 4, printed in a type face large enough to be clearly legible according to
section 145.4243, paragraph (b), and provided by the Department of Health. The referring
physician shall provide the patient who is referred for an abortion with the handout
described in subdivision 4, printed in a type face large enough to be clearly legible
according to section 145.4243, paragraph (b), and provided by the Department of Health.
new text end

new text begin Subd. 4. new text end

new text begin Signs and handouts available. new text end

new text begin Within 90 days after July 1, 2009, the
Department of Health must make the sign and a handout containing the text of the sign
suitable for distribution available to all facilities where abortions are performed, induced
or prescribed for, where the means for an abortion are provided, or where referrals for
abortions are made.
new text end

new text begin Subd. 5. new text end

new text begin Penalties. new text end

new text begin (a) Anyone who fails to comply with subdivision 2 or 3 shall
be assessed an administrative fine of $10,000. Each subsequent violation is a separate
violation.
new text end

new text begin (b) An action may be brought by or on behalf of an individual injured by the failure
to post the required sign or by failure to receive the copy of the sign. A plaintiff in an
action under this section may recover damages for emotional distress.
new text end

new text begin (c) In determining liability and validity of informed consent, the failure to comply
with the requirements of posting the sign and disseminating a copy of the sign is
presumptive that the plaintiff would not have undertaken the recommended abortion had
the sign posting and dissemination of the copy of the sign been complied with.
new text end

new text begin (d) Any person upon whom an abortion has been performed without complying
with this section may maintain an action against the person who performed the abortion
in knowing or reckless violation of this section for actual and punitive damages. Any
person upon whom an abortion has been attempted without complying with this section
may maintain an action against the person who attempted to perform the abortion in
knowing or reckless violation of this section for actual and punitive damages. No liability
may be assessed for failure to comply with this section, unless the commissioner has
made the sign available.
new text end

new text begin (e) If judgment is rendered in favor of the plaintiff in any action described in this
section, the court shall also render judgment for reasonable attorney fees in favor of the
plaintiff against the defendant. If judgment is rendered in favor of the defendant and the
court finds that the plaintiff's suit was frivolous and brought in bad faith, the court shall also
render judgment for reasonable attorney fees in favor of the defendant against the plaintiff.
new text end

Sec. 2.

new text begin [145.4222] SCREENING REQUIREMENT.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin For purposes of this section, the following terms have
the meanings given.
new text end

new text begin (a) "Abortion" means the use or prescription of any instrument, medicine, drug, or
any other substance or device to intentionally terminate the pregnancy of a female known
to be pregnant, with an intention other than to increase the probability of a live birth, to
preserve the life or health of the child after live birth, or to remove a dead fetus.
new text end

new text begin (b) "Coerce" has the meaning given in section 145.4221, subdivision 1, paragraph
(c).
new text end

new text begin (c) "Minor" means a female who is under the age of 18.
new text end

new text begin (d) "Physician" means a person licensed as a physician or osteopath under chapter
147.
new text end

new text begin Subd. 2. new text end

new text begin Screening. new text end

new text begin (a) If a minor patient schedules an appointment for an abortion,
the physician or physician's agent shall ensure that the patient's request for an abortion
is not the result of coercion by asking the minor patient, while the minor patient is in
the presence of no one other than the physician or physician's agent, and before the
abortion takes place, if any person, regardless of the person's relationship to her, such as
a boyfriend, the unborn child's father, the minor patient's parents, siblings, relatives, or
employer, is forcing her to seek or obtain an abortion against her will.
new text end

new text begin (b) If a minor patient indicates that she is the victim of coerced abortion, the
physician or physician's agent shall:
new text end

new text begin (1) provide the patient with private access to a telephone and with information about
safe transportation and services available to help her; and
new text end

new text begin (2) contact a county child protective services agency.
new text end

new text begin Subd. 3. new text end

new text begin Penalties. new text end

new text begin (a) Any private office, freestanding outpatient clinic, hospital,
or other facility or clinic that fails to screen a minor patient in knowing, reckless, or
negligent violation shall be assessed a fine of $10,000. In determining liability and
validity of informed consent, the failure to comply with the screening requirements is
presumptive that the plaintiff would not have undertaken the recommended abortion
had the requirements been complied with.
new text end

new text begin (b) Any person upon whom an abortion has been performed without complying
with this section may maintain an action against the person who performed the abortion
in knowing or reckless violation of this section for actual and punitive damages. Any
person upon whom an abortion has been attempted without complying with this section
may maintain an action against the person who attempted to perform the abortion in
knowing or reckless violation of this section for actual and punitive damages. No civil
liability may be assessed for failure to comply with this section requiring information
about safe transportation and available services, unless the commissioner of health has
made the materials available at the time the physician or the physician's agent is required
to provide the female with a telephone and the materials.
new text end

new text begin (c) If judgment is rendered in favor of the plaintiff in any action described in this
section, the court shall also render judgment for reasonable attorney fees in favor of the
plaintiff against the defendant. If judgment is rendered in favor of the defendant and the
court finds that the plaintiff's suit was frivolous and brought in bad faith, the court shall also
render judgment for reasonable attorney fees in favor of the defendant against the plaintiff.
new text end

Sec. 3.

Minnesota Statutes 2008, section 145.4241, is amended by adding a subdivision
to read:

new text begin Subd. 2a. new text end

new text begin Abuse. new text end

new text begin "Abuse" has the meaning given in section 518B.01, subdivision 2,
paragraph (a).
new text end

Sec. 4.

Minnesota Statutes 2008, section 145.4241, is amended by adding a subdivision
to read:

new text begin Subd. 2b. new text end

new text begin Coerce. new text end

new text begin "Coerce" has the meaning given in section 145.4221.
new text end

Sec. 5.

Minnesota Statutes 2008, section 145.4242, is amended to read:

145.4242 INFORMED CONSENT.

(a) No abortion shall be performed in this state except with the voluntary and
informed consent of the female upon whom the abortion is to be performed. Except in
the case of a medical emergency or if the fetus has an anomaly incompatible with life,
and the female has declined perinatal hospice care, consent to an abortion is voluntary
and informed only if:

(1) the female is told the following, by telephone or in person, by the physician who
is to perform the abortion or by a referring physician, at least 24 hours before the abortion:

(i) the particular medical risks associated with the particular abortion procedure to be
employed including, when medically accurate, the risks of infection, hemorrhage, breast
cancer, danger to subsequent pregnancies, and infertility;

(ii) the probable gestational age of the unborn child at the time the abortion is to
be performed;

(iii) the medical risks associated with carrying her child to term; and

(iv) for abortions after 20 weeks gestational, whether or not an anesthetic or
analgesic would eliminate or alleviate organic pain to the unborn child caused by the
particular method of abortion to be employed and the particular medical benefits and risks
associated with the particular anesthetic or analgesic.

The information required by this clause may be provided by telephone without
conducting a physical examination or tests of the patient, in which case the information
required to be provided may be based on facts supplied to the physician by the female and
whatever other relevant information is reasonably available to the physician. It may not be
provided by a tape recording, but must be provided during a consultation in which the
physician is able to ask questions of the female and the female is able to ask questions
of the physician. If a physical examination, tests, or the availability of other information
to the physician subsequently indicate, in the medical judgment of the physician, a
revision of the information previously supplied to the patient, that revised information
may be communicated to the patient at any time prior to the performance of the abortion.
Nothing in this section may be construed to preclude provision of required information in
a language understood by the patient through a translator;

(2) the female is informed, by telephone or in person, by the physician who is to
perform the abortion, by a referring physician, or by an agent of either physician at least
24 hours before the abortion:

(i) that medical assistance benefits may be available for prenatal care, childbirth,
and neonatal care;

(ii) that the father is liable to assist in the support of her child, even in instances
when the father has offered to pay for the abortion; deleted text begin and
deleted text end

(iii) that she has the right to review the printed materials described in section
145.4243, that these materials are available on a state-sponsored Web site, and what the
Web site address is. The physician or the physician's agent shall orally inform the female
that the materials have been provided by the state of Minnesota and that they describe the
unborn child, list agencies that offer alternatives to abortion, and contain information on
fetal pain. If the female chooses to view the materials other than on the Web site, they
shall either be given to her at least 24 hours before the abortion or mailed to her at least 72
hours before the abortion by certified mail, restricted delivery to addressee, which means
the postal employee can only deliver the mail to the addressee deleted text begin . deleted text end new text begin ; and
new text end

new text begin (iv) No one shall force or coerce a pregnant female into seeking or obtaining an
abortion against the pregnant female's will.
new text end

The information required by this clause may be provided by a tape recording if
provision is made to record or otherwise register specifically whether the female does or
does not choose to have the printed materials given or mailed to her;

(3) the female certifies in writing, prior to the abortion, that the information
described in clauses (1) and (2) has been furnished to her and that she has been informed
of her opportunity to review the information referred to in clause (2), subclause (iii); and

(4) prior to the performance of the abortion, the physician who is to perform the
abortion or the physician's agent obtains a copy of the written certification prescribed by
clause (3) and retains it on file with the female's medical record for at least three years
following the date of receipt.

(b) Prior to administering the anesthetic or analgesic as described in paragraph (a),
clause (1), item (iv), the physician must disclose to the woman any additional cost of the
procedure for the administration of the anesthetic or analgesic. If the woman consents
to the administration of the anesthetic or analgesic, the physician shall administer the
anesthetic or analgesic or arrange to have the anesthetic or analgesic administered.

(c) A female seeking an abortion of her unborn child diagnosed with fetal anomaly
incompatible with life must be informed of available perinatal hospice services and offered
this care as an alternative to abortion. If perinatal hospice services are declined, voluntary
and informed consent by the female seeking an abortion is given if the female receives
the information required in paragraphs (a), clause (1), and (b). The female must comply
with the requirements in paragraph (a), clauses (3) and (4).

Sec. 6.

Minnesota Statutes 2008, section 145.4243, is amended to read:

145.4243 PRINTED INFORMATION.

(a) Within 90 days after July 1, 2003, the commissioner of health shall cause to be
published, in English and in each language that is the primary language of two percent
or more of the state's population, and shall cause to be available on the state Web site
provided for under section 145.4244 the following printed materials in such a way as to
ensure that the information is easily comprehensible:

(1) geographically indexed materials designed to inform the female of public and
private agencies and services available to assist a female through pregnancy, upon
childbirth, and while the child is dependent, including adoption agencies, which shall
include a comprehensive list of the agencies available, a description of the services they
offer, and a description of the manner, including telephone numbers, in which they might
be contacted or, at the option of the commissioner of health, printed materials including a
toll-free, 24-hours-a-day telephone number that may be called to obtain, orally or by a tape
recorded message tailored to a zip code entered by the caller, such a list and description of
agencies in the locality of the caller and of the services they offer;

(2) materials designed to inform the female of the probable anatomical and
physiological characteristics of the unborn child at two-week gestational increments
from the time when a female can be known to be pregnant to full term, including any
relevant information on the possibility of the unborn child's survival and pictures or
drawings representing the development of unborn children at two-week gestational
increments, provided that any such pictures or drawings must contain the dimensions
of the fetus and must be realistic and appropriate for the stage of pregnancy depicted.
The materials shall be objective, nonjudgmental, and designed to convey only accurate
scientific information about the unborn child at the various gestational ages. The material
shall also contain objective information describing the methods of abortion procedures
commonly employed, the medical risks commonly associated with each procedure, the
possible detrimental psychological effects of abortion, and the medical risks commonly
associated with carrying a child to term; deleted text begin and
deleted text end

new text begin (3) materials designed to inform the female that no one can force her into seeking
or obtaining an abortion against her will, that there are services available to assist any
woman who is experiencing actual or threatened physical abuse or violence, and that she
has a right to contact any local or state law enforcement agency to receive protection from
any actual or threatened physical abuse or violence; and
new text end

deleted text begin (3) deleted text end new text begin (4) new text end materials with the following information concerning an unborn child of 20
weeks gestational age and at two weeks gestational increments thereafter in such a way as
to ensure that the information is easily comprehensible:

(i) the development of the nervous system of the unborn child;

(ii) fetal responsiveness to adverse stimuli and other indications of capacity to
experience organic pain; and

(iii) the impact on fetal organic pain of each of the methods of abortion procedures
commonly employed at this stage of pregnancy.

The material under this clause shall be objective, nonjudgmental, and designed to
convey only accurate scientific information.

(b) The materials referred to in this section must be printed in a typeface large
enough to be clearly legible. The Web site provided for under section 145.4244 shall be
maintained at a minimum resolution of 70 DPI (dots per inch). All pictures appearing on
the Web site shall be a minimum of 200x300 pixels. All letters on the Web site shall be
a minimum of 11-point font. All information and pictures shall be accessible with an
industry standard browser, requiring no additional plug-ins. The materials required under
this section must be available at no cost from the commissioner of health upon request and
in appropriate number to any person, facility, or hospital.

Sec. 7.

Minnesota Statutes 2008, section 518B.01, subdivision 2, is amended to read:

Subd. 2.

Definitions.

As used in this section, the following terms shall have the
meanings given them:

(a) "Domestic abuse" means the following, if committed against a family or
household member by a family or household member:

(1) physical harm, bodily injury, or assault;

(2) the infliction of fear of imminent physical harm, bodily injury, or assault; deleted text begin or
deleted text end

new text begin (3) coerce, as defined in section 145.4221, or attempts to coerce a woman to seek
or obtain an abortion, regardless of whether the pregnant female actually obtains an
abortion; or
new text end

deleted text begin (3) deleted text end new text begin (4) new text end terroristic threats, within the meaning of section 609.713, subdivision 1;
criminal sexual conduct, within the meaning of section 609.342, 609.343, 609.344,
609.345, or 609.3451; or interference with an emergency call within the meaning of
section 609.78, subdivision 2.

(b) "Family or household members" means:

(1) spouses and former spouses;

(2) parents and children;

(3) persons related by blood;

(4) persons who are presently residing together or who have resided together in
the past;

(5) persons who have a child in common regardless of whether they have been
married or have lived together at any time;

(6) a man and woman if the woman is pregnant and the man is alleged to be the
father, regardless of whether they have been married or have lived together at any time; and

(7) persons involved in a significant romantic or sexual relationship.

Issuance of an order for protection on the ground in clause (6) does not affect a
determination of paternity under sections 257.51 to 257.74. In determining whether
persons are or have been involved in a significant romantic or sexual relationship
under clause (7), the court shall consider the length of time of the relationship; type of
relationship; frequency of interaction between the parties; and, if the relationship has
terminated, length of time since the termination.

(c) "Qualified domestic violence-related offense" has the meaning given in section
609.02, subdivision 16.

Sec. 8.

Minnesota Statutes 2008, section 518B.01, is amended by adding a subdivision
to read:

new text begin Subd. 24. new text end

new text begin Notification required. new text end

new text begin Upon the request of the female victim, a law
enforcement agency investigating a violation of subdivision 2, clause (3), shall notify the
female victim not less than 24 hours before initially contacting the person alleged to
have committed a violation of clause (3).
new text end

Sec. 9.

Minnesota Statutes 2008, section 573.02, subdivision 1, is amended to read:

Subdivision 1.

Death action.

new text begin (a) new text end When death is caused by the wrongful act or
omission of any person or corporation, the trustee appointed as provided in subdivision
3 may maintain an action therefor if the decedent might have maintained an action, had
the decedent lived, for an injury caused by the wrongful act or omission. An action to
recover damages for a death caused by the alleged professional negligence of a physician,
surgeon, dentist, hospital or sanitarium, or an employee of a physician, surgeon, dentist,
hospital or sanitarium shall be commenced within three years of the date of death, but
in no event shall be commenced beyond the time set forth in section 541.076. An action
to recover damages for a death caused by an intentional act constituting murder may
be commenced at any time after the death of the decedent. Any other action under this
section may be commenced within three years after the date of death provided that the
action must be commenced within six years after the act or omission. The recovery in
the action is the amount the jury deems fair and just in reference to the pecuniary loss
resulting from the death, and shall be for the exclusive benefit of the surviving spouse and
next of kin, proportionate to the pecuniary loss severally suffered by the death. The court
then determines the proportionate pecuniary loss of the persons entitled to the recovery
and orders distribution accordingly. Funeral expenses and any demand for the support of
the decedent allowed by the court having jurisdiction of the action, are first deducted and
paid. Punitive damages may be awarded as provided in section 549.20.

new text begin (b) new text end If an action for the injury was commenced by the decedent and not finally
determined while living, it may be continued by the trustee for recovery of damages
for the exclusive benefit of the surviving spouse and next of kin, proportionate to the
pecuniary loss severally suffered by the death. The court on motion shall make an order
allowing the continuance and directing pleadings to be made and issues framed as in
actions begun under this section.

new text begin (c) A female who was forced or coerced to have an abortion shall have a cause of
action for wrongful death of the unborn child against the person who forced or coerced
the female to have an abortion.
new text end

Sec. 10.

Minnesota Statutes 2008, section 609.2242, subdivision 1, is amended to read:

Subdivision 1.

Misdemeanor.

new text begin (a) new text end Whoever does any of the following against a
family or household member as defined in section 518B.01, subdivision 2, commits an
assault and is guilty of a misdemeanor:

(1) commits an act with intent to cause fear in another of immediate bodily harm or
death; deleted text begin or
deleted text end

(2) intentionally inflicts or attempts to inflict bodily harm upon another deleted text begin . deleted text end new text begin ; or
new text end

new text begin (3) coerce, as defined in section 145.4221, or attempts to coerce a woman to seek or
obtain an abortion, regardless of whether the pregnant female actually obtains an abortion.
new text end

new text begin (b) Upon the request of the female victim, a law enforcement agency investigating a
violation of clause (3) shall notify the female victim not less than 24 hours before initially
contacting the person alleged to have committed a violation of this subdivision.
new text end

Sec. 11. new text begin WOMAN'S RIGHT TO KNOW WEB SITE.
new text end

new text begin The Department of Health must update the Woman's Right to Know Web site with
the information contained in this act. The department may use the remaining Woman's
Right to Know booklets and when the booklets are reprinted, the information in this act
including prohibited coercion must be included.
new text end