HF 1885

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; providing a woman considering 
  1.3             abortion the right to certain information before 
  1.4             giving consent; 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.  [145.451] [CITATION.] 
  1.8      Sections 1 to 8 may be cited as the "woman's right to know 
  1.9   act." 
  1.10     Sec. 2.  [145.452] [LEGISLATIVE FINDINGS AND PURPOSE.] 
  1.11     The legislature finds that women who are considering 
  1.12  abortions should have the right of access to scientifically 
  1.13  accurate, noninflammatory information that is relevant to those 
  1.14  decisions, and asserts that it has a legitimate and compelling 
  1.15  interest in fostering access to such information.  The 
  1.16  legislature further finds that the information provided should 
  1.17  not be limited by paternalistic assumptions that women are too 
  1.18  emotionally fragile or incompetent to deal with balanced 
  1.19  information that allows them to hear both sides before making an 
  1.20  irrevocable decision.  To protect these and other state 
  1.21  interests, the legislature intends reasonably and 
  1.22  constitutionally to foster the ability of women to obtain full 
  1.23  and accurate information about abortion and its alternatives in 
  1.24  accordance with opinions issued by the United States Supreme 
  1.25  Court. 
  2.1      Sec. 3.  [145.453] [DEFINITIONS.] 
  2.2      Subdivision 1.  [APPLICABILITY.] The definitions in this 
  2.3   section apply to sections 1 to 8. 
  2.4      Subd. 2.  [ABORTION.] "Abortion" means the use or 
  2.5   prescription of any instrument, medicine, drug, or any other 
  2.6   substance or device to intentionally terminate the pregnancy of 
  2.7   a woman known to be pregnant with an intention other than to 
  2.8   increase the probability of a live birth, to preserve the life 
  2.9   or health of the child after live birth, or to remove a dead 
  2.10  fetus. 
  2.11     Subd. 3.  [MEDICAL EMERGENCY.] "Medical emergency" means a 
  2.12  condition which, on the basis of the physician's good faith 
  2.13  clinical judgment, so complicates a pregnancy as to necessitate 
  2.14  an immediate abortion to avert the death of the mother or for 
  2.15  which a 24-hour delay will create grave peril of immediate and 
  2.16  irreversible loss of major bodily function. 
  2.17     Subd. 4.  [PROBABLE GESTATIONAL AGE OF THE UNBORN 
  2.18  CHILD.] "Probable gestational age of the unborn child" means 
  2.19  what, in the judgment of the physician, will with reasonable 
  2.20  probability be the gestational age of the unborn child at the 
  2.21  time the abortion is planned to be performed. 
  2.22     Sec. 4.  [145.454] [GENERAL RULE ON INFORMED CONSENT; 
  2.23  MEDICAL EMERGENCY EXCEPTION.] 
  2.24     Subdivision 1.  [INFORMED CONSENT; GENERAL RULE.] No 
  2.25  abortion shall be performed except with the voluntary and 
  2.26  informed consent of the woman upon whom the abortion is to be 
  2.27  performed or induced.  Except in the case of a medical 
  2.28  emergency, consent to an abortion is voluntary and informed if 
  2.29  and only if the conditions in paragraphs (a) to (d) have been 
  2.30  met. 
  2.31     (a) At least 24 hours before the abortion, the physician 
  2.32  who is to perform the abortion or a referring physician must 
  2.33  tell the woman: 
  2.34     (1) the name of the physician who will perform the 
  2.35  abortion; 
  2.36     (2) the particular medical risks associated with the 
  3.1   particular abortion procedure to be used including, when 
  3.2   medically accurate, the risks of infection, hemorrhage, danger 
  3.3   to subsequent pregnancies, and infertility; 
  3.4      (3) the probable gestational age of the unborn child at the 
  3.5   time the abortion is to be performed; and 
  3.6      (4) the medical risks associated with carrying her child to 
  3.7   term. 
  3.8      The physician may provide this information by telephone 
  3.9   without conducting a physical examination or tests of the 
  3.10  patient, in which case the information required to be supplied 
  3.11  may be based on facts supplied the physician by the patient and 
  3.12  whatever other relevant information is reasonably available to 
  3.13  the physician. 
  3.14     (b) At least 24 hours before the abortion, the physician 
  3.15  who is to perform the abortion, a referring physician, or an 
  3.16  agent of one of the physicians must tell the woman: 
  3.17     (1) that medical assistance benefits may be available for 
  3.18  prenatal care, childbirth, and neonatal care; 
  3.19     (2) that the father is liable to assist in the support of 
  3.20  her child, even in instances in which the father has offered to 
  3.21  pay for the abortion; and 
  3.22     (3) that she has the right to review the printed materials 
  3.23  described in section 5.  The physician or the physician's agent 
  3.24  shall orally inform the woman that materials have been provided 
  3.25  by the commissioner of health and that they describe the unborn 
  3.26  child and list agencies that offer alternatives to abortion.  If 
  3.27  the woman chooses to view the materials, they shall be given to 
  3.28  her at least 24 hours before the abortion or mailed to her at 
  3.29  least 72 hours before the abortion by certified mail, restricted 
  3.30  delivery to addressee, which means the postal employee can only 
  3.31  deliver the mail to the addressee. 
  3.32     (c) Before the abortion the woman must certify, in writing, 
  3.33  that the information described in paragraphs (a) and (b) has 
  3.34  been given to her and that she has been informed of her 
  3.35  opportunity to review the information described in paragraph 
  3.36  (b), clause (3). 
  4.1      (d) Before performing the abortion, the physician who is to 
  4.2   perform the abortion or the physician's agent must receive a 
  4.3   copy of the written certification required in paragraph (c). 
  4.4      Subd. 2.  [MEDICAL EMERGENCY.] When a medical emergency 
  4.5   compels the performance of an abortion, the physician shall 
  4.6   inform the woman, prior to the abortion if possible, of the 
  4.7   medical indications supporting the physician's judgment that an 
  4.8   abortion is necessary to avert her death or that a delay will 
  4.9   create serious risk of substantial and irreversible impairment 
  4.10  of a major bodily function. 
  4.11     Sec. 5.  [145.456] [PUBLICATION OF PRINTED INFORMATION.] 
  4.12     (a) Within 60 days after this section is enacted, the 
  4.13  commissioner of health shall publish the following easily 
  4.14  comprehensible printed materials in every language that is the 
  4.15  primary language of one percent or more of the residents of 
  4.16  Minnesota: 
  4.17     (1) geographically indexed materials designed to inform the 
  4.18  woman of public and private agencies and services available to 
  4.19  assist a woman through pregnancy, upon childbirth, and while the 
  4.20  child is dependent, as well as adoption agencies.  The materials 
  4.21  must include a comprehensive list of the agencies available, a 
  4.22  description of the services they offer, telephone numbers of the 
  4.23  agencies, and a description of the manner in which they might be 
  4.24  contacted; and 
  4.25     (2) materials designed to inform the woman of the probable 
  4.26  anatomical and physiological characteristics of the unborn child 
  4.27  at two-week gestational increments from the time when a woman 
  4.28  can be known to be pregnant to full term, including any pictures 
  4.29  or drawings representing the development of unborn children at 
  4.30  two-week gestational increments, provided that any such pictures 
  4.31  or drawings must contain the dimensions of the fetus and must be 
  4.32  realistic and appropriate for the stage of pregnancy depicted, 
  4.33  and any relevant information on the possibility of the unborn 
  4.34  child's survival.  The materials shall be objective, 
  4.35  nonjudgmental, and designed to convey only accurate scientific 
  4.36  information about the unborn child at the various gestational 
  5.1   ages.  The material shall also contain objective information 
  5.2   describing the methods of abortion procedures commonly employed, 
  5.3   medical risks commonly associated with each procedure, possible 
  5.4   detrimental psychological effects of abortion, medical risks 
  5.5   commonly associated with each procedure, and medical risks 
  5.6   commonly associated with carrying a child to full term. 
  5.7      (b) The materials must be printed in a typeface large 
  5.8   enough to be clearly legible. 
  5.9      (c) The materials required under this section shall be 
  5.10  available from the department of health at no cost, and in 
  5.11  appropriate number, to any person, facility, or hospital. 
  5.12     Sec. 6.  [145.457] [INJUNCTIONS AGAINST ABORTIONS WITHOUT 
  5.13  INFORMED CONSENT.] 
  5.14     Subdivision 1.  [STANDING.] A person with standing may 
  5.15  maintain a suit against the performance or attempted performance 
  5.16  of abortions unlawful under section 4.  Those with standing are: 
  5.17     (1) a county attorney, attorney general, or local welfare 
  5.18  or law enforcement agency; 
  5.19     (2) a woman upon whom an abortion that is unlawful under 
  5.20  section 4 has been performed or attempted to be performed; 
  5.21     (3) the parent of a minor upon whom an abortion that is 
  5.22  unlawful under section 4 has been or is about to be performed or 
  5.23  attempted to be performed; and 
  5.24     (4) the father of the unborn child subject to an abortion 
  5.25  that is unlawful under section 4 that has been or is about to be 
  5.26  performed or attempted to be performed. 
  5.27     The attorney general, county attorney, and local welfare or 
  5.28  law enforcement agency may maintain an action only against those 
  5.29  shown to have performed or attempted to perform, or about to 
  5.30  perform, an abortion unlawful under section 4.  Those described 
  5.31  by clause (2) and, except to enjoin other individuals from 
  5.32  performing or attempting to perform an unlawful abortion of the 
  5.33  relative of the plaintiff, those described by clauses (3) and 
  5.34  (4) may maintain an action only against any person who performed 
  5.35  or attempted to perform the unlawful abortion that is the source 
  5.36  of their standing. 
  6.1      Subd. 2.  [PROCEDURE.] Suits against the performance and 
  6.2   attempted performance of unlawful abortions may seek temporary 
  6.3   restraining orders, preliminary injunctions, and injunctions 
  6.4   according to the Rules of Civil Procedure for district courts.  
  6.5   However, a showing of injury, loss, or damage to the applicant 
  6.6   is not required for the order or injunction. 
  6.7      Subd. 3.  [REMEDIES FOR CONTEMPT.] Any person knowingly 
  6.8   violating the terms of an injunction against the performance or 
  6.9   attempted performance of unlawful abortions shall be subject to 
  6.10  civil contempt, and shall be fined $10,000 for the first 
  6.11  violation, $50,000 for the second violation, $100,000 for the 
  6.12  third violation, and for each succeeding violation an amount in 
  6.13  excess of $100,000 sufficient to deter future violations.  The 
  6.14  fines are the exclusive penalties for the contempt.  Each 
  6.15  performance or attempted performance of an unlawful abortion in 
  6.16  violation of an injunction is a separate violation.  These fines 
  6.17  shall be cumulative; however, no fine shall be assessed against 
  6.18  the woman on whom an abortion is performed or attempted. 
  6.19     Subd. 4.  [ATTORNEY'S FEES.] If judgment is in favor of the 
  6.20  plaintiff in any action for an injunction or if a defendant is 
  6.21  adjudged in contempt of a temporary restraining order, 
  6.22  preliminary injunction, or injunction, the court shall also 
  6.23  render judgment for a reasonable attorney's fee in favor of the 
  6.24  plaintiff and against the defendant.  The attorney's fee shall 
  6.25  be taxed and collected as other costs of the suit, and when 
  6.26  collected shall be paid to the attorney for the plaintiff.  If 
  6.27  the attorney is a public official, the attorney's fee shall be 
  6.28  paid into the state or county treasury. 
  6.29     Sec. 7.  [145.458] [CIVIL DAMAGES FOR ABORTIONS PERFORMED 
  6.30  WITHOUT INFORMED CONSENT.] 
  6.31     Any person with standing under section 6, other than a 
  6.32  public official, may maintain an action against the person who 
  6.33  performed the abortion in violation of section 4 for $10,000 in 
  6.34  punitive damages and treble whatever actual damages the 
  6.35  plaintiff may have sustained.  No person shall be estopped from 
  6.36  recovery in such a suit on the ground that either the plaintiff 
  7.1   or the person upon whom the abortion was performed gave consent 
  7.2   to the abortion, if the consent was not informed.  Any contract 
  7.3   of indemnification for such damages is void. 
  7.4      Sec. 8.  [145.459] [PRESERVATION OF IDENTITY OF WOMAN FROM 
  7.5   PUBLIC DISCLOSURE.] 
  7.6      In every proceeding or action pursuant to section 6 or 7, 
  7.7   the court shall rule whether the anonymity of a woman upon whom 
  7.8   an abortion is performed or attempted should be preserved from 
  7.9   public disclosure if she does not give her consent to such 
  7.10  disclosure.  The court, upon motion or sua sponte, shall make 
  7.11  the ruling and, upon determining that her anonymity should be 
  7.12  preserved, shall issue orders to the parties, witnesses, and 
  7.13  counsel, and shall direct the sealing of the record and 
  7.14  exclusion of individuals from courtrooms or hearing rooms to the 
  7.15  extent necessary to safeguard her identity from public 
  7.16  disclosure.  Each order shall be accompanied by specific written 
  7.17  findings explaining why the anonymity of the woman should be 
  7.18  preserved from public disclosure, why the order is essential to 
  7.19  that end, how the order is narrowly tailored to serve that 
  7.20  interest, and why no reasonable less restrictive alternative 
  7.21  exists.  In the absence of written consent of the woman upon 
  7.22  whom an abortion has been performed or attempted, anyone, other 
  7.23  than a public official, who brings an action pursuant to section 
  7.24  6 or 7 shall do so under a pseudonym.  This section may not be 
  7.25  construed to conceal the identity of the plaintiff or of 
  7.26  witnesses from the defendant.