HF 1190

as introduced - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act
  1.2             relating to health; requiring informed consent for 
  1.3             abortions; appropriating money; proposing coding for 
  1.4             new law in Minnesota Statutes, chapter 145. 
  1.5   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.6      Section 1.  [145.4245] [WOMAN'S RIGHT TO KNOW ACT.] 
  1.7      Subdivision 1.  [DEFINITIONS.] As used in sections 145.4245 
  1.8   to 145.4249, the following terms have the meanings given them: 
  1.9      (a) "Abortion" means the intentional use or prescription of 
  1.10  any instrument, medicine, drug, or any other substance or device 
  1.11  to terminate the pregnancy of a female known to be pregnant, 
  1.12  with an intention other than to increase the probability of a 
  1.13  live birth, to preserve the life or health of the child after 
  1.14  live birth, or to remove a dead fetus. 
  1.15     (b) "Attempt to perform an abortion" means any act which is 
  1.16  committed for the purpose of performing an abortion and which is 
  1.17  a medically-accepted procedure for performing an abortion. 
  1.18     (c) "Medical emergency" means any condition which, on the 
  1.19  basis of the physician's good faith clinical judgment, so 
  1.20  complicates the medical condition of a pregnant female as to 
  1.21  necessitate an immediate abortion of her pregnancy in order to 
  1.22  avert her death or to avoid a delay which will create a serious 
  1.23  risk of substantial and severe impairment of a major bodily 
  1.24  function. 
  1.25     (d) "Physician" means a person licensed under chapter 147. 
  2.1      (e) "Physician's designee" means a qualified physician's 
  2.2   assistant or a licensed or certified health care practitioner or 
  2.3   technician. 
  2.4      (f) "Probable gestational age of the fetus" means what, in 
  2.5   the judgment of the physician, will with reasonable probability 
  2.6   be the gestational age of the fetus at the time the abortion is 
  2.7   planned to be performed. 
  2.8      Subd. 2.  [INFORMED CONSENT.] No abortion shall be 
  2.9   performed in this state except with the voluntary and informed 
  2.10  consent of the female upon whom the abortion is to be 
  2.11  performed.  Except in the case of a medical emergency, consent 
  2.12  to an abortion is voluntary and informed only if the 
  2.13  requirements of paragraphs (a) to (e) are met. 
  2.14     (a) The female must be given the following information 
  2.15  orally, by telephone, or in person by the physician who is to 
  2.16  perform the abortion, by a referring physician, or by either 
  2.17  physician's designee at least 24 hours before the abortion: 
  2.18     (1) the particular medical risks associated with the 
  2.19  particular abortion procedure to be employed including, when 
  2.20  medically accurate, the risks of infection, hemorrhage, breast 
  2.21  cancer, danger to subsequent pregnancies, and infertility; 
  2.22     (2) the probable gestational age of the fetus at the time 
  2.23  the abortion is to be performed; and 
  2.24     (3) the medical risks associated with carrying the 
  2.25  pregnancy to term. 
  2.26     The information required by this subdivision may be 
  2.27  provided by telephone without conducting a physical examination 
  2.28  or tests of the patient, in which case the information required 
  2.29  to be provided may be based on:  (i) facts supplied to the 
  2.30  physician or the physician's designee by the female; and (ii) 
  2.31  whatever other relevant information is reasonably available to 
  2.32  the physician or the physician's designee.  The information may 
  2.33  not be provided by a tape recording, but must be provided during 
  2.34  a consultation during which the physician or physician's 
  2.35  designee is able to ask questions of the female and the female 
  2.36  is able to ask questions of the physician or the physician's 
  3.1   designee.  If a physical examination, tests, or the availability 
  3.2   of other information to the physician subsequently indicates, in 
  3.3   the medical judgment of the physician, a revision of the 
  3.4   information previously supplied to the patient, the revised 
  3.5   information may be communicated to the patient at any time prior 
  3.6   to the performance of the abortion.  Nothing in this section may 
  3.7   be construed to preclude provision of required information in a 
  3.8   language understood by the patient through a translator. 
  3.9      (b) The female must be informed orally, by telephone, or in 
  3.10  person by the physician who is to perform the abortion, by a 
  3.11  referring physician, or by either physician's designee at least 
  3.12  24 hours before the abortion: 
  3.13     (1) that medical assistance benefits may be available for 
  3.14  prenatal care, childbirth, and neonatal care; 
  3.15     (2) that the father of the child is liable to assist in the 
  3.16  support of the child, even when the father has offered to pay 
  3.17  for the abortion; and 
  3.18     (3) that she has the right to review the printed materials 
  3.19  described in section 145.4246.  The physician or the physician's 
  3.20  designee shall orally inform the female that the materials have 
  3.21  been provided by the state and that they describe the fetus and 
  3.22  list agencies that offer alternatives to abortion.  If the 
  3.23  female chooses to view the materials, arrangements must be made 
  3.24  to enable the female to review the materials at least 24 hours 
  3.25  before the abortion is performed. 
  3.26     The information required by this paragraph may be provided 
  3.27  by a tape recording if provision is made to record or otherwise 
  3.28  document specifically whether the female does or does not choose 
  3.29  to review the printed materials. 
  3.30     (c) Prior to the abortion, the female must certify in 
  3.31  writing, on an informed consent form printed for that purpose, 
  3.32  that the information described in this section has been 
  3.33  furnished to her, that she has been informed of her opportunity 
  3.34  to review the other information referred to in paragraph (b), 
  3.35  and that she has either reviewed these materials or waived that 
  3.36  right.  The female shall initial each item of the printed form 
  4.1   to indicate that she has received the required information or 
  4.2   has waived that right.  When the printed consent forms are 
  4.3   presented to the patient for signature prior to the abortion, 
  4.4   the physician or the physician's designee shall orally explain 
  4.5   each item on the consent form and respond to any questions which 
  4.6   the patient may have in a noncoercive manner. 
  4.7      (d) Upon request, immediately prior to the performance of 
  4.8   the abortion, or any time thereafter, the female must be 
  4.9   provided with the name of the physician who is to perform the 
  4.10  abortion, and the physician who is to perform the abortion or 
  4.11  the physician's designee must receive a copy of the written 
  4.12  certification prescribed by paragraph (c). 
  4.13     (e) When information required by this section is to be 
  4.14  provided to the patient by a physician's designee, the physician 
  4.15  that performs the abortion is responsible for ensuring that the 
  4.16  information is provided and is liable according to section 
  4.17  145.4248 if the information is not provided. 
  4.18     (f) The requirements of this subdivision shall not 
  4.19  necessarily be considered a reasonable standard of care and a 
  4.20  violation of this subdivision shall not constitute negligence 
  4.21  per se. 
  4.22     Sec. 2.  [145.4246] [PRINTED INFORMATION.] 
  4.23     Subdivision 1.  [INFORMATIONAL MATERIALS.] Within 90 days 
  4.24  after the effective date of sections 145.4245 to 145.4249, the 
  4.25  department of health shall publish the following printed 
  4.26  materials in a manner that ensures the information is easily 
  4.27  comprehensible: 
  4.28     (1) geographically indexed materials designed to inform the 
  4.29  female of public and private agencies and services available to 
  4.30  assist a female through pregnancy, upon childbirth, and while 
  4.31  the child is dependent, including adoption agencies; a 
  4.32  comprehensive list of the agencies available, with a description 
  4.33  of the services they offer, and a description of the manner, 
  4.34  including telephone numbers, in which they might be contacted; 
  4.35  or, at the option of the department of health, printed materials 
  4.36  including information on existing toll-free, 24-hour-a-day 
  5.1   telephone numbers which may be called to obtain, orally, such a 
  5.2   list and description of agencies in the locality of the caller 
  5.3   and of the services they offer; and 
  5.4      (2) materials designed to inform the female of the probable 
  5.5   anatomical and physiological characteristics of the fetus at 
  5.6   two-week gestational increments from the time a female is known 
  5.7   to be pregnant, to full term, including any relevant information 
  5.8   on the possibility of the fetus' survival and pictures or 
  5.9   drawings representing the development of a fetus at two-week 
  5.10  gestational increments, provided that any such pictures or 
  5.11  drawings must contain the dimensions of the fetus and must be 
  5.12  realistic and appropriate for the stage of pregnancy depicted.  
  5.13  The materials shall be objective and nonjudgmental in accordance 
  5.14  with commonly accepted standards of medical practice, and 
  5.15  designed to convey only accurate scientific information about 
  5.16  the fetus at the various gestational ages.  The material shall 
  5.17  also contain objective information describing the methods of 
  5.18  abortion procedures commonly employed, the medical risks 
  5.19  commonly associated with each procedure, the possible 
  5.20  detrimental psychological effects of abortion, and the medical 
  5.21  risks commonly associated with each procedure and the medical 
  5.22  risks commonly associated with carrying a pregnancy to term. 
  5.23     The materials referred to in this section must be printed 
  5.24  in a typeface large enough to be clearly legible.  The materials 
  5.25  required under this section must be available at no cost from 
  5.26  the department of health upon request and in an appropriate 
  5.27  number to any person, facility, or hospital. 
  5.28     Subd. 2.  [MODEL CONSENT FORM.] The commissioner of health 
  5.29  shall, within 90 days after the effective date of sections 
  5.30  145.4245 to 145.4249, print and disseminate a model consent form 
  5.31  designed to assist abortion providers in complying with the 
  5.32  requirements of section 145.4245. 
  5.33     Subd. 3.  [VIOLATION.] The license of any physician or 
  5.34  physician's agent who violates this section may be subject to 
  5.35  suspension or revocation under chapter 147 or 148.  This 
  5.36  subdivision does not limit or preclude any other remedies that a 
  6.1   woman may have available to her. 
  6.2      Sec. 3.  [145.4247] [PROCEDURE IN CASE OF MEDICAL 
  6.3   EMERGENCY.] 
  6.4      When a medical emergency compels the performance of an 
  6.5   abortion, the physician shall inform the female, prior to the 
  6.6   abortion if possible, of the medical indications supporting the 
  6.7   physician's judgment that an abortion is necessary to avert her 
  6.8   death or that a 24-hour delay will create serious risk of 
  6.9   substantial and severe impairment of a major bodily function.  
  6.10     Sec. 4.  [145.4248] [PRESUMPTIVE EVIDENCE.] 
  6.11     Subdivision 1.  [CONSENT FORMS.] Consent forms signed by 
  6.12  the female under section 145.4245, subdivision 2, paragraph (c), 
  6.13  are presumptive evidence that the required information has been 
  6.14  provided. 
  6.15     Subd. 2.  [PROTECTION OF PRIVACY IN COURT PROCEEDINGS.] In 
  6.16  every civil action brought under sections 145.4245 to 145.4249, 
  6.17  the court shall rule whether the anonymity of any female upon 
  6.18  whom an abortion has been performed or attempted shall be 
  6.19  preserved from public disclosure if she does not give her 
  6.20  consent to the disclosure.  The court, upon motion or sua 
  6.21  sponte, shall make such a ruling and, upon determining that a 
  6.22  female's anonymity should be preserved, shall issue orders to 
  6.23  the parties, witnesses, and counsel and shall direct the sealing 
  6.24  of the record and exclusion of individuals from courtrooms or 
  6.25  hearing rooms to the extent necessary to safeguard the female's 
  6.26  identity from public disclosure.  Each order must be accompanied 
  6.27  by specific written findings explaining why the anonymity of the 
  6.28  female should be preserved from public disclosure, why the order 
  6.29  is essential to that end, how the order is narrowly tailored to 
  6.30  serve that interest, and why no reasonable, less restrictive 
  6.31  alternative exists.  In the absence of written consent of the 
  6.32  female upon whom an abortion has been performed or attempted, 
  6.33  anyone, other than a public official, who brings an action under 
  6.34  subdivision 1 shall do so under a pseudonym.  This section may 
  6.35  not be construed to conceal the identity of the plaintiff or of 
  6.36  witnesses from the defendant. 
  7.1      Sec. 5.  [145.4249] [SEVERABILITY.] 
  7.2      If any provision, word, phrase, or clause of sections 
  7.3   145.4245 to 145.4249 or the application thereof to any person or 
  7.4   circumstance is held invalid, the invalidity shall not affect 
  7.5   the provisions, words, phrases, clauses, or applications of 
  7.6   sections 145.4245 to 145.4249 which can be given effect without 
  7.7   the invalid provision, word, phrase, clause, or application and 
  7.8   to this end, the provisions, words, phrases, and clauses of 
  7.9   sections 145.4245 to 145.4249 are declared to be severable. 
  7.10     Sec. 6.  [APPROPRIATIONS; COMMISSIONER OF HEALTH.] 
  7.11     $116,000 is appropriated from the general fund to the 
  7.12  commissioner of health for the biennium ending June 30, 1997, 
  7.13  for purposes of preparing and disseminating the documents 
  7.14  required by section 2. 
  7.15     Sec. 7.  [EFFECTIVE DATES.] 
  7.16     Sections 2 and 6 are effective the day after final 
  7.17  enactment.  Sections 1 and 3 to 5 are effective August 1, 1995.