1st Engrossment - 83rd Legislature (2003 - 2004) Posted on 12/15/2009 12:00am
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; repealing an obsolete law; 1.5 appropriating money; amending Minnesota Statutes 2002, 1.6 section 145.4134; proposing coding for new law in 1.7 Minnesota Statutes, chapter 145; repealing Minnesota 1.8 Statutes 2002, section 145.413, subdivision 1. 1.9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.10 ARTICLE 1 1.11 Section 1. [SHORT TITLE.] 1.12 Sections 1 to 10 shall be known and may be cited as the 1.13 "Woman's Right to Know Act." 1.14 Sec. 2. [145.4241] [DEFINITIONS.] 1.15 Subdivision 1. [APPLICABILITY.] As used in sections 1.16 145.4241 to 145.4249, the following terms have the meaning given 1.17 them. 1.18 Subd. 2. [ABORTION.] "Abortion" means the use or 1.19 prescription of any instrument, medicine, drug, or any other 1.20 substance or device to intentionally terminate the pregnancy of 1.21 a female known to be pregnant, with an intention other than to 1.22 increase the probability of a live birth, to preserve the life 1.23 or health of the child after live birth, or to remove a dead 1.24 fetus. 1.25 Subd. 3. [ATTEMPT TO PERFORM AN ABORTION.] "Attempt to 1.26 perform an abortion" means an act, or an omission of a 1.27 statutorily required act, that, under the circumstances as the 2.1 actor believes them to be, constitutes a substantial step in a 2.2 course of conduct planned to culminate in the performance of an 2.3 abortion in Minnesota in violation of sections 145.4241 to 2.4 145.4249. 2.5 Subd. 4. [MEDICAL EMERGENCY.] "Medical emergency" means 2.6 any condition that, on the basis of the physician's good faith 2.7 clinical judgment, so complicates the medical condition of a 2.8 pregnant female as to necessitate the immediate abortion of her 2.9 pregnancy to avert her death or for which a delay will create 2.10 serious risk of substantial and irreversible impairment of a 2.11 major bodily function. 2.12 Subd. 5. [PHYSICIAN.] "Physician" means a person licensed 2.13 as a physician or osteopath under chapter 147. 2.14 Subd. 6. [PROBABLE GESTATIONAL AGE OF THE UNBORN 2.15 CHILD.] "Probable gestational age of the unborn child" means 2.16 what will, in the judgment of the physician, with reasonable 2.17 probability, be the gestational age of the unborn child at the 2.18 time the abortion is planned to be performed. 2.19 Subd. 7. [STABLE INTERNET WEB SITE.] "Stable Internet Web 2.20 site" means a Web site that, to the extent reasonably 2.21 practicable, is safeguarded from having its content altered 2.22 other than by the commissioner of health. 2.23 Subd. 8. [UNBORN CHILD.] "Unborn child" means a member of 2.24 the species Homo sapiens from fertilization until birth. 2.25 Sec. 3. [145.4242] [INFORMED CONSENT.] 2.26 No abortion shall be performed in this state except with 2.27 the voluntary and informed consent of the female upon whom the 2.28 abortion is to be performed. Except in the case of a medical 2.29 emergency, consent to an abortion is voluntary and informed only 2.30 if: 2.31 (1) the female is told the following, by telephone or in 2.32 person, by the physician who is to perform the abortion or by a 2.33 referring physician, at least 24 hours before the abortion: 2.34 (i) the particular medical risks associated with the 2.35 particular abortion procedure to be employed including, when 2.36 medically accurate, the risks of infection, hemorrhage, breast 3.1 cancer, danger to subsequent pregnancies, and infertility; 3.2 (ii) the probable gestational age of the unborn child at 3.3 the time the abortion is to be performed; and 3.4 (iii) the medical risks associated with carrying her child 3.5 to term. 3.6 The information required by this clause may be provided by 3.7 telephone without conducting a physical examination or tests of 3.8 the patient, in which case the information required to be 3.9 provided may be based on facts supplied to the physician by the 3.10 female and whatever other relevant information is reasonably 3.11 available to the physician. It may not be provided by a tape 3.12 recording, but must be provided during a consultation in which 3.13 the physician is able to ask questions of the female and the 3.14 female is able to ask questions of the physician. If a physical 3.15 examination, tests, or the availability of other information to 3.16 the physician subsequently indicate, in the medical judgment of 3.17 the physician, a revision of the information previously supplied 3.18 to the patient, that revised information may be communicated to 3.19 the patient at any time prior to the performance of the 3.20 abortion. Nothing in this section may be construed to preclude 3.21 provision of required information in a language understood by 3.22 the patient through a translator; 3.23 (2) the female is informed, by telephone or in person, by 3.24 the physician who is to perform the abortion, by a referring 3.25 physician, or by an agent of either physician at least 24 hours 3.26 before the abortion: 3.27 (i) that medical assistance benefits may be available for 3.28 prenatal care, childbirth, and neonatal care; 3.29 (ii) that the father is liable to assist in the support of 3.30 her child, even in instances when the father has offered to pay 3.31 for the abortion; and 3.32 (iii) that she has the right to review the printed 3.33 materials described in section 145.4243, that these materials 3.34 are available on a state-sponsored Web site, and what the Web 3.35 site address is. The physician or the physician's agent shall 3.36 orally inform the female that the materials have been provided 4.1 by the state of Minnesota and that they describe the unborn 4.2 child, list agencies that offer alternatives to abortion, and 4.3 contain information on fetal pain. If the female chooses to 4.4 view the materials other than on the Web site, they shall either 4.5 be given to her at least 24 hours before the abortion or mailed 4.6 to her at least 72 hours before the abortion by certified mail, 4.7 restricted delivery to addressee, which means the postal 4.8 employee can only deliver the mail to the addressee. 4.9 The information required by this clause may be provided by 4.10 a tape recording if provision is made to record or otherwise 4.11 register specifically whether the female does or does not choose 4.12 to have the printed materials given or mailed to her; 4.13 (3) the female certifies in writing, prior to the abortion, 4.14 that the information described in clauses (1) and (2) has been 4.15 furnished to her and that she has been informed of her 4.16 opportunity to review the information referred to in clause (2), 4.17 subclause (iii); and 4.18 (4) prior to the performance of the abortion, the physician 4.19 who is to perform the abortion or the physician's agent obtains 4.20 a copy of the written certification prescribed by clause (3) and 4.21 retains it on file with the female's medical record for at least 4.22 three years following the date of receipt. 4.23 Sec. 4. [145.4243] [PRINTED INFORMATION.] 4.24 (a) Within 90 days after the effective date of sections 4.25 145.4241 to 145.4249, the commissioner of health shall cause to 4.26 be published, in English and in each language that is the 4.27 primary language of two percent or more of the state's 4.28 population, and shall cause to be available on the state Web 4.29 site provided for under section 145.4244 the following printed 4.30 materials in such a way as to ensure that the information is 4.31 easily comprehensible: 4.32 (1) geographically indexed materials designed to inform the 4.33 female of public and private agencies and services available to 4.34 assist a female through pregnancy, upon childbirth, and while 4.35 the child is dependent, including adoption agencies, which shall 4.36 include a comprehensive list of the agencies available, a 5.1 description of the services they offer, and a description of the 5.2 manner, including telephone numbers, in which they might be 5.3 contacted or, at the option of the commissioner of health, 5.4 printed materials including a toll-free, 24-hours-a-day 5.5 telephone number that may be called to obtain, orally or by a 5.6 tape recorded message tailored to a zip code entered by the 5.7 caller, such a list and description of agencies in the locality 5.8 of the caller and of the services they offer; 5.9 (2) materials designed to inform the female of the probable 5.10 anatomical and physiological characteristics of the unborn child 5.11 at two-week gestational increments from the time when a female 5.12 can be known to be pregnant to full term, including any relevant 5.13 information on the possibility of the unborn child's survival 5.14 and pictures or drawings representing the development of unborn 5.15 children at two-week gestational increments, provided that any 5.16 such pictures or drawings must contain the dimensions of the 5.17 fetus and must be realistic and appropriate for the stage of 5.18 pregnancy depicted. The materials shall be objective, 5.19 nonjudgmental, and designed to convey only accurate scientific 5.20 information about the unborn child at the various gestational 5.21 ages. The material shall also contain objective information 5.22 describing the methods of abortion procedures commonly employed, 5.23 the medical risks commonly associated with each procedure, the 5.24 possible detrimental psychological effects of abortion, and the 5.25 medical risks commonly associated with carrying a child to term; 5.26 and 5.27 (3) materials with the following information concerning an 5.28 unborn child of 20 weeks gestational age and at two weeks 5.29 gestational increments thereafter in such a way as to ensure 5.30 that the information is easily comprehensible: 5.31 (i) the development of the nervous system of the unborn 5.32 child; 5.33 (ii) fetal responsiveness to adverse stimuli and other 5.34 indications of capacity to experience organic pain; and 5.35 (iii) the impact on fetal organic pain of each of the 5.36 methods of abortion procedures commonly employed at this stage 6.1 of pregnancy. 6.2 The material under this clause shall be objective, 6.3 nonjudgmental, and designed to convey only accurate scientific 6.4 information. 6.5 (b) The materials referred to in this section must be 6.6 printed in a typeface large enough to be clearly legible. The 6.7 Web site provided for under section 145.4244 shall be maintained 6.8 at a minimum resolution of 70 DPI (dots per inch). All pictures 6.9 appearing on the Web site shall be a minimum of 200x300 pixels. 6.10 All letters on the Web site shall be a minimum of 11-point 6.11 font. All information and pictures shall be accessible with an 6.12 industry standard browser, requiring no additional plug-ins. 6.13 The materials required under this section must be available at 6.14 no cost from the commissioner of health upon request and in 6.15 appropriate number to any person, facility, or hospital. 6.16 Sec. 5. [145.4244] [INTERNET WEB SITE.] 6.17 The commissioner of health shall develop and maintain a 6.18 stable Internet Web site to provide the information described 6.19 under section 145.4243. No information regarding who uses the 6.20 Web site shall be collected or maintained. The commissioner of 6.21 health shall monitor the Web site on a weekly basis to prevent 6.22 and correct tampering. 6.23 Sec. 6. [145.4245] [PROCEDURE IN CASE OF MEDICAL 6.24 EMERGENCY.] 6.25 When a medical emergency compels the performance of an 6.26 abortion, the physician shall inform the female, prior to the 6.27 abortion if possible, of the medical indications supporting the 6.28 physician's judgment that an abortion is necessary to avert her 6.29 death or that a 24-hour delay will create serious risk of 6.30 substantial and irreversible impairment of a major bodily 6.31 function. 6.32 Sec. 7. [145.4246] [REPORTING REQUIREMENTS.] 6.33 Subdivision 1. [REPORTING FORM.] Within 90 days after the 6.34 effective date of sections 145.4241 to 145.4249, the 6.35 commissioner of health shall prepare a reporting form for 6.36 physicians containing a reprint of sections 145.4241 to 145.4249 7.1 and listing: 7.2 (1) the number of females to whom the physician provided 7.3 the information described in section 145.4242, clause (1); of 7.4 that number, the number provided by telephone and the number 7.5 provided in person; and of each of those numbers, the number 7.6 provided in the capacity of a referring physician and the number 7.7 provided in the capacity of a physician who is to perform the 7.8 abortion; 7.9 (2) the number of females to whom the physician or an agent 7.10 of the physician provided the information described in section 7.11 145.4242, clause (2); of that number, the number provided by 7.12 telephone and the number provided in person; of each of those 7.13 numbers, the number provided in the capacity of a referring 7.14 physician and the number provided in the capacity of a physician 7.15 who is to perform the abortion; and of each of those numbers, 7.16 the number provided by the physician and the number provided by 7.17 an agent of the physician; 7.18 (3) the number of females who availed themselves of the 7.19 opportunity to obtain a copy of the printed information 7.20 described in section 145.4243 other than on the Web site and the 7.21 number who did not; and of each of those numbers, the number 7.22 who, to the best of the reporting physician's information and 7.23 belief, went on to obtain the abortion; and 7.24 (4) the number of abortions performed by the physician in 7.25 which information otherwise required to be provided at least 24 7.26 hours before the abortion was not so provided because an 7.27 immediate abortion was necessary to avert the female's death and 7.28 the number of abortions in which such information was not so 7.29 provided because a delay would create serious risk of 7.30 substantial and irreversible impairment of a major bodily 7.31 function. 7.32 Subd. 2. [DISTRIBUTION OF FORMS.] The commissioner of 7.33 health shall ensure that copies of the reporting forms described 7.34 in subdivision 1 are provided: 7.35 (1) by December 1, 2003, and by December 1 of each 7.36 subsequent year thereafter to all physicians licensed to 8.1 practice in this state; and 8.2 (2) to each physician who subsequently becomes newly 8.3 licensed to practice in this state, at the same time as official 8.4 notification to that physician that the physician is so licensed. 8.5 Subd. 3. [REPORTING REQUIREMENT.] By April 1, 2005, and by 8.6 April 1 of each subsequent year thereafter, each physician who 8.7 provided, or whose agent provided, information to one or more 8.8 females in accordance with section 145.4242 during the previous 8.9 calendar year shall submit to the commissioner of health a copy 8.10 of the form described in subdivision 1 with the requested data 8.11 entered accurately and completely. 8.12 Subd. 4. [ADDITIONAL REPORTING.] Nothing in this section 8.13 shall be construed to preclude the voluntary or required 8.14 submission of other reports or forms regarding abortions. 8.15 Subd. 5. [FAILURE TO REPORT AS REQUIRED.] Reports that are 8.16 not submitted by the end of a grace period of 30 days following 8.17 the due date shall be subject to a late fee of $500 for each 8.18 additional 30-day period or portion of a 30-day period they are 8.19 overdue. Any physician required to report according to this 8.20 section who has not submitted a report, or has submitted only an 8.21 incomplete report, more than one year following the due date, 8.22 may, in an action brought by the commissioner of health, be 8.23 directed by a court of competent jurisdiction to submit a 8.24 complete report within a period stated by court order or be 8.25 subject to sanctions for civil contempt. 8.26 Subd. 6. [PUBLIC STATISTICS.] By July 1, 2005, and by July 8.27 1 of each subsequent year thereafter, the commissioner of health 8.28 shall issue a public report providing statistics for the 8.29 previous calendar year compiled from all of the reports covering 8.30 that year submitted according to this section for each of the 8.31 items listed in subdivision 1. Each report shall also provide 8.32 the statistics for all previous calendar years, adjusted to 8.33 reflect any additional information from late or corrected 8.34 reports. The commissioner of health shall take care to ensure 8.35 that none of the information included in the public reports 8.36 could reasonably lead to the identification of any individual 9.1 providing or provided information according to section 145.4242. 9.2 Subd. 7. [CONSOLIDATION.] The commissioner of health may 9.3 consolidate the forms or reports described in this section with 9.4 other forms or reports to achieve administrative convenience or 9.5 fiscal savings or to reduce the burden of reporting requirements. 9.6 Sec. 8. [145.4247] [REMEDIES.] 9.7 Subdivision 1. [CIVIL REMEDIES.] Any person upon whom an 9.8 abortion has been performed without complying with sections 9.9 145.4241 to 145.4249 may maintain an action against the person 9.10 who performed the abortion in knowing or reckless violation of 9.11 sections 145.4241 to 145.4249 for actual and punitive damages. 9.12 Any person upon whom an abortion has been attempted without 9.13 complying with sections 145.4241 to 145.4249 may maintain an 9.14 action against the person who attempted to perform the abortion 9.15 in knowing or reckless violation of sections 145.4241 to 9.16 145.4249 for actual and punitive damages. No civil liability 9.17 may be assessed for failure to comply with section 145.4242, 9.18 clause (2), item (iii), or that portion of section 145.4242, 9.19 clause (2), requiring written certification that the female has 9.20 been informed of her opportunity to review the information 9.21 referred to in section 145.4242, clause (2), item (iii), unless 9.22 the commissioner of health has made the printed materials or Web 9.23 site address available at the time the physician or the 9.24 physician's agent is required to inform the female of her right 9.25 to review them. 9.26 Subd. 2. [SUIT TO COMPEL STATISTICAL REPORT.] If the 9.27 commissioner of health fails to issue the public report required 9.28 under section 145.4246, subdivision 6, or fails in any way to 9.29 enforce this act, any group of ten or more citizens of this 9.30 state may seek an injunction in a court of competent 9.31 jurisdiction against the commissioner of health requiring that a 9.32 complete report be issued within a period stated by court 9.33 order. Failure to abide by such an injunction shall subject the 9.34 commissioner to sanctions for civil contempt. 9.35 Subd. 3. [ATTORNEY FEES.] If judgment is rendered in favor 9.36 of the plaintiff in any action described in this section, the 10.1 court shall also render judgment for reasonable attorney fees in 10.2 favor of the plaintiff against the defendant. If judgment is 10.3 rendered in favor of the defendant and the court finds that the 10.4 plaintiff's suit was frivolous and brought in bad faith, the 10.5 court shall also render judgment for reasonable attorney fees in 10.6 favor of the defendant against the plaintiff. 10.7 Subd. 4. [PROTECTION OF PRIVACY IN COURT PROCEEDINGS.] In 10.8 every civil action brought under sections 145.4241 to 145.4249, 10.9 the court shall rule whether the anonymity of any female upon 10.10 whom an abortion has been performed or attempted shall be 10.11 preserved from public disclosure if she does not give her 10.12 consent to such disclosure. The court, upon motion or sua 10.13 sponte, shall make such a ruling and, upon determining that her 10.14 anonymity should be preserved, shall issue orders to the 10.15 parties, witnesses, and counsel and shall direct the sealing of 10.16 the record and exclusion of individuals from courtrooms or 10.17 hearing rooms to the extent necessary to safeguard her identity 10.18 from public disclosure. Each order must be accompanied by 10.19 specific written findings explaining why the anonymity of the 10.20 female should be preserved from public disclosure, why the order 10.21 is essential to that end, how the order is narrowly tailored to 10.22 serve that interest, and why no reasonable, less restrictive 10.23 alternative exists. In the absence of written consent of the 10.24 female upon whom an abortion has been performed or attempted, 10.25 anyone, other than a public official, who brings an action under 10.26 subdivision 1, shall do so under a pseudonym. This section may 10.27 not be construed to conceal the identity of the plaintiff or of 10.28 witnesses from the defendant. 10.29 Sec. 9. [145.4248] [SEVERABILITY.] 10.30 If any one or more provision, section, subsection, 10.31 sentence, clause, phrase, or word of sections 145.4241 to 10.32 145.4249 or the application thereof to any person or 10.33 circumstance is found to be unconstitutional, the same is hereby 10.34 declared to be severable and the balance of sections 145.4241 to 10.35 145.4249 shall remain effective notwithstanding such 10.36 unconstitutionality. The legislature hereby declares that it 11.1 would have passed sections 145.4241 to 145.4249, and each 11.2 provision, section, subsection, sentence, clause, phrase, or 11.3 word thereof, irrespective of the fact that any one or more 11.4 provision, section, subsection, sentence, clause, phrase, or 11.5 word be declared unconstitutional. 11.6 Sec. 10. [145.4249] [SUPREME COURT JURISDICTION.] 11.7 The Minnesota supreme court has original jurisdiction over 11.8 an action challenging the constitutionality of sections 145.4241 11.9 to 145.4249 and shall expedite the resolution of the action. 11.10 Sec. 11. [APPROPRIATION.] 11.11 $274,000 in fiscal year 2004 and $214,000 in fiscal year 11.12 2005 are appropriated from the general fund to the commissioner 11.13 of health for the purposes of this act. The base for this 11.14 program in fiscal year 2006 and thereafter is $207,000. 11.15 ARTICLE 2 11.16 Section 1. Minnesota Statutes 2002, section 145.4134, is 11.17 amended to read: 11.18 145.4134 [COMMISSIONER'S PUBLIC REPORT.] 11.19 (a) By July 1 of each year, except for 1998 and 1999 11.20 information, the commissioner shall issue a public report 11.21 providing statistics for the previous calendar year compiled 11.22 from the data submitted under sections 145.4131 to 145.4133 and 11.23 sections 145.4241 to 145.4249. For 1998 and 1999 information, 11.24 the report shall be issued October 1, 2000. Each report shall 11.25 provide the statistics for all previous calendar years, adjusted 11.26 to reflect any additional information from late or corrected 11.27 reports. The commissioner shall ensure that none of the 11.28 information included in the public reports can reasonably lead 11.29 to identification of an individual having performed or having 11.30 had an abortion. All data included on the forms under sections 11.31 145.4131 to 145.4133 and sections 145.4241 to 145.4249 must be 11.32 included in the public report, except that the commissioner 11.33 shall maintain as confidential, data which alone or in 11.34 combination may constitute information from which an individual 11.35 having performed or having had an abortion may be identified 11.36 using epidemiologic principles. The commissioner shall submit 12.1 the report to the senate health and family security committee 12.2 and the house health and human services committee. 12.3 (b) The commissioner may, by rules adopted under chapter 12.4 14, alter the submission dates established under sections 12.5 145.4131 to 145.4133 for administrative convenience, fiscal 12.6 savings, or other valid reason, provided that physicians or 12.7 facilities and the commissioner of human services submit the 12.8 required information once each year and the commissioner issues 12.9 a report once each year. 12.10 Sec. 2. [REPEALER.] 12.11 Minnesota Statutes 2002, section 145.413, subdivision 1, is 12.12 repealed. Notwithstanding Minnesota Statutes, section 14.05, 12.13 repeal of section 145.413, subdivision 1, does not repeal rules 12.14 adopted under that subdivision.