as introduced - 80th Legislature (1997 - 1998) Posted on 12/15/2009 12:00am
|Introduction||Posted on 01/10/1997|
1.1 A bill for an act 1.2 relating to health; requiring informed consent of a 1.3 female upon whom an abortion is performed; providing 1.4 civil remedies; proposing coding for new law in 1.5 Minnesota Statutes, chapter 145. 1.6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.7 Section 1. [145.4241] [DEFINITIONS.] 1.8 Subdivision 1. [APPLICABILITY.] As used in sections 1.9 145.4241 to 145.4246, the following terms have the meaning given 1.10 them. 1.11 Subd. 2. [ABORTION.] "Abortion" means the use or 1.12 prescription of any instrument, medicine, drug, or any other 1.13 substance or device to intentionally terminate the pregnancy of 1.14 a female known to be pregnant, with an intention other than to 1.15 increase the probability of a live birth, to preserve the life 1.16 or health of the child after live birth, or to remove a dead 1.17 fetus. 1.18 Subd. 3. [ATTEMPT TO PERFORM AN ABORTION.] "Attempt to 1.19 perform an abortion" means an act, or an omission of a 1.20 statutorily required act, that, under the circumstances as the 1.21 actor believes them to be, constitutes a substantial step in a 1.22 course of conduct planned to culminate in the performance of an 1.23 abortion in Minnesota in violation of sections 145.4241 to 1.24 145.4246. 1.25 Subd. 4. [MEDICAL EMERGENCY.] "Medical emergency" means 2.1 any condition that, on the basis of the physician's good faith 2.2 clinical judgment, complicates the medical condition of a 2.3 pregnant female to the extent that: 2.4 (1) an immediate abortion of her pregnancy is necessary to 2.5 avert her death; or 2.6 (2) a 24-hour delay in performing an abortion creates a 2.7 serious risk of substantial and irreversible impairment of a 2.8 major bodily function. 2.9 Subd. 5. [PHYSICIAN.] "Physician" means a person licensed 2.10 under chapter 147. 2.11 Subd. 6. [PROBABLE GESTATIONAL AGE OF THE UNBORN 2.12 CHILD.] "Probable gestational age of the unborn child" means 2.13 what will, in the judgment of the physician, with reasonable 2.14 probability, be the gestational age of the unborn child at the 2.15 time the abortion is planned to be performed. 2.16 Sec. 2. [145.4242] [INFORMED CONSENT.] 2.17 No abortion shall be performed in this state except with 2.18 the voluntary and informed consent of the female upon whom the 2.19 abortion is to be performed. Except in the case of a medical 2.20 emergency, consent to an abortion is voluntary and informed only 2.21 if: 2.22 (1) the female is told the following, by telephone or in 2.23 person, by the physician who is to perform the abortion or by a 2.24 referring physician, at least 24 hours before the abortion: 2.25 (i) the name of the physician who will perform the 2.26 abortion; 2.27 (ii) the particular medical risks associated with the 2.28 particular abortion procedure to be employed including, when 2.29 medically accurate, the risks of infection, hemorrhage, breast 2.30 cancer, danger to subsequent pregnancies, and infertility; 2.31 (iii) the probable gestational age of the unborn child at 2.32 the time the abortion is to be performed; and 2.33 (iv) the medical risks associated with carrying her child 2.34 to term. 2.35 The information required by this clause may be provided by 2.36 telephone without conducting a physical examination or tests of 3.1 the patient, in which case the information required to be 3.2 provided may be based on facts supplied the physician by the 3.3 female and whatever other relevant information is reasonably 3.4 available to the physician. It may not be provided by a tape 3.5 recording, but must be provided during a consultation in which 3.6 the physician is able to ask questions of the female and the 3.7 female is able to ask questions of the physician. If a physical 3.8 examination, tests, or the availability of other information to 3.9 the physician subsequently indicate, in the medical judgment of 3.10 the physician, a revision of the information previously supplied 3.11 to the patient, that revised information may be communicated to 3.12 the patient at any time prior to the performance of the 3.13 abortion. Nothing in this section may be construed to preclude 3.14 provision of required information in a language understood by 3.15 the patient through a translator; 3.16 (2) the female is informed, by telephone or in person, by 3.17 the physician who is to perform the abortion, by a referring 3.18 physician, or by an agent of either physician at least 24 hours 3.19 before the abortion: 3.20 (i) that medical assistance benefits may be available for 3.21 prenatal care, childbirth, and neonatal care; 3.22 (ii) that the father is liable to assist in the support of 3.23 her child, even in instances when the father has offered to pay 3.24 for the abortion; and 3.25 (iii) that she has the right to review the printed 3.26 materials described in section 145.4243. The physician or the 3.27 physician's agent shall orally inform the female the materials 3.28 have been provided by the state of Minnesota and that they 3.29 describe the unborn child and list agencies that offer 3.30 alternatives to abortion. If the female chooses to view the 3.31 materials, they shall either be given to her at least 24 hours 3.32 before the abortion or mailed to her at least 72 hours before 3.33 the abortion by certified mail, restricted delivery to 3.34 addressee, which means the postal employee can only deliver the 3.35 mail to the addressee. 3.36 The information required by this clause may be provided by 4.1 a tape recording if provision is made to record or otherwise 4.2 register specifically whether the female does or does not choose 4.3 to review the printed materials; 4.4 (3) the female certifies in writing, prior to the abortion, 4.5 that the information described in this section has been 4.6 furnished her, and that she has been informed of her opportunity 4.7 to review the information referred to in clause (2); and 4.8 (4) prior to the performance of the abortion, the physician 4.9 who is to perform the abortion or the physician's agent receives 4.10 a copy of the written certification prescribed by clause (3). 4.11 Sec. 3. [145.4243] [PRINTED INFORMATION.] 4.12 (a) Within 90 days after the effective date of sections 4.13 145.4241 to 145.4246, the department of health shall cause to be 4.14 published, in English and in each language that is the primary 4.15 language of two percent or more of the state's population, the 4.16 following printed materials in such a way as to ensure that the 4.17 information is easily comprehensible: 4.18 (1) geographically indexed materials designed to inform the 4.19 female of public and private agencies and services available to 4.20 assist a female through pregnancy, upon childbirth, and while 4.21 the child is dependent, including adoption agencies, which shall 4.22 include a comprehensive list of the agencies available, a 4.23 description of the services they offer, and a description of the 4.24 manner, including telephone numbers, in which they might be 4.25 contacted or, at the option of the department of health, printed 4.26 materials including a toll-free, 24-hours-a-day telephone number 4.27 that may be called to obtain, orally, such a list and 4.28 description of agencies in the locality of the caller and of the 4.29 services they offer; and 4.30 (2) materials designed to inform the female of the probable 4.31 anatomical and physiological characteristics of the unborn child 4.32 at two-week gestational increments from the time when a female 4.33 can be known to be pregnant to full term, including any relevant 4.34 information on the possibility of the unborn child's survival 4.35 and pictures or drawings representing the development of unborn 4.36 children at two-week gestational increments, provided that any 5.1 such pictures or drawings must contain the dimensions of the 5.2 fetus and must be realistic and appropriate for the stage of 5.3 pregnancy depicted. The materials shall be objective, 5.4 nonjudgmental, and designed to convey only accurate scientific 5.5 information about the unborn child at the various gestational 5.6 ages. The material shall also contain objective information 5.7 describing the methods of abortion procedures commonly employed, 5.8 the medical risks commonly associated with each procedure, the 5.9 possible detrimental psychological effects of abortion, the 5.10 medical risks commonly associated with each procedure, and the 5.11 medical risks commonly associated with carrying a child to term. 5.12 (b) The materials referred to in this section must be 5.13 printed in a typeface large enough to be clearly legible. The 5.14 materials required under this section must be available at no 5.15 cost from the department of health upon request and in 5.16 appropriate number to any person, facility, or hospital. 5.17 Sec. 4. [145.4244] [PROCEDURE IN CASE OF MEDICAL 5.18 EMERGENCY.] 5.19 When a medical emergency compels the performance of an 5.20 abortion, the physician shall inform the female, prior to the 5.21 abortion if possible, of the medical indications supporting the 5.22 physician's judgment that an abortion is necessary to avert her 5.23 death or that a 24-hour delay in conformance with section 5.24 145.4242 creates a serious risk of substantial and irreversible 5.25 impairment of a major bodily function. 5.26 Sec. 5. [145.4245] [REMEDIES.] 5.27 Subdivision 1. [CIVIL REMEDIES.] Any person upon whom an 5.28 abortion has been performed or the parent of a minor upon whom 5.29 an abortion has been performed may maintain an action against 5.30 the person who performed the abortion in knowing or reckless 5.31 violation of sections 145.4241 to 145.4246 for actual and 5.32 punitive damages. Any person upon whom an abortion has been 5.33 attempted without complying with sections 145.4241 to 145.4246 5.34 may maintain an action against the person who attempted to 5.35 perform the abortion in knowing or reckless violation of 5.36 sections 145.4241 to 145.4246 for actual and punitive damages. 6.1 Subd. 2. [ATTORNEY FEES.] If judgment is rendered in favor 6.2 of the plaintiff in any action described in this section, the 6.3 court shall also render judgment for a reasonable attorney's fee 6.4 in favor of the plaintiff against the defendant. If judgment is 6.5 rendered in favor of the defendant and the court finds that the 6.6 plaintiff's suit was frivolous and brought in bad faith, the 6.7 court shall also render judgment for a reasonable attorney's fee 6.8 in favor of the defendant against the plaintiff. 6.9 Subd. 3. [PROTECTION OF PRIVACY IN COURT PROCEEDINGS.] In 6.10 every civil action brought under sections 145.4241 to 145.4246, 6.11 the court shall rule whether the anonymity of any female upon 6.12 whom an abortion has been performed or attempted shall be 6.13 preserved from public disclosure if she does not give her 6.14 consent to such disclosure. The court, upon motion or sua 6.15 sponte, shall make such a ruling and, upon determining that her 6.16 anonymity should be preserved, shall issue orders to the 6.17 parties, witnesses, and counsel and shall direct the sealing of 6.18 the record and exclusion of individuals from courtrooms or 6.19 hearing rooms to the extent necessary to safeguard her identity 6.20 from public disclosure. Each order must be accompanied by 6.21 specific written findings explaining why the anonymity of the 6.22 female should be preserved from public disclosure, why the order 6.23 is essential to that end, how the order is narrowly tailored to 6.24 serve that interest, and why no reasonable, less restrictive 6.25 alternative exists. In the absence of written consent of the 6.26 female upon whom an abortion has been performed or attempted, 6.27 anyone, other than a public official, who brings an action under 6.28 subdivision 1, shall do so under a pseudonym. This section may 6.29 not be construed to conceal the identity of the plaintiff or of 6.30 witnesses from the defendant. 6.31 Sec. 6. [145.4246] [SEVERABILITY.] 6.32 If any one or more provision, section, subsection, 6.33 sentence, clause, phrase, or word of sections 145.4241 to 6.34 145.4246 or the application thereof to any person or 6.35 circumstance is found to be unconstitutional, the same is hereby 6.36 declared to be severable and the balance of sections 145.4241 to 7.1 145.4246 shall remain effective notwithstanding such 7.2 unconstitutionality. The legislature hereby declares that it 7.3 would have passed sections 145.4241 to 145.4246, and each 7.4 provision, section, subsection, sentence, clause, phrase, or 7.5 word thereof, irrespective of the fact that any one or more 7.6 provision, section, subsection, sentence, clause, phrase, or 7.7 word be declared unconstitutional.