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HF 2103

as introduced - 87th Legislature (2011 - 2012) Posted on 02/08/2012 12:00pm

KEY: stricken = removed, old language.
underscored = added, new language.
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A bill for an act
relating to health; prohibiting abortions when fetal heartbeat is detected;
amending Minnesota Statutes 2010, section 147.091, 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 [145.4071] LEGISLATIVE FINDINGS.
new text end

new text begin The legislature finds, according to contemporary medical research, the following:
new text end

new text begin (1) as many as 30 percent of natural pregnancies end in spontaneous miscarriage;
new text end

new text begin (2) less than five percent of all natural pregnancies end in spontaneous miscarriage
after detection of fetal cardiac activity;
new text end

new text begin (3) over 90 percent of in vitro pregnancies survive the first trimester if cardiac
activity is detected in the gestational sac;
new text end

new text begin (4) nearly 90 percent of in vitro pregnancies do not survive the first trimester where
cardiac activity is not detected in the gestational sac;
new text end

new text begin (5) fetal heartbeat, therefore, has become a key medical predictor that an unborn
human individual will reach viability and live birth; and
new text end

new text begin (6) cardiac activity begins at a biologically identifiable moment in time, normally
when the fetal heart is formed in the gestational sac.
new text end

Sec. 2.

new text begin [145.4072] DEFINITIONS.
new text end

new text begin For purposes of sections 145.4071 to 145.4073, the following terms have the
meanings given.
new text end

new text begin (a) "Contraceptive" means a device, drug, or chemical that prevents conception.
new text end

new text begin (b) "Fetal heartbeat" means cardiac activity or the steady and repetitive rhythmic
contraction of the fetal heart within the gestational sac.
new text end

new text begin (c) "Fetus" means the human offspring developing during pregnancy from the
moment of conception and includes the embryonic stage of development.
new text end

new text begin (d) "Gestational age" means the age of an unborn child as calculated from the first
day of the last menstrual period of a pregnant woman.
new text end

new text begin (e) "Gestational sac" comprises the extra embryonic membranes that envelop the
fetus and is typically visible by ultrasound after the fourth week of pregnancy.
new text end

new text begin (f) "Medical emergency" means a condition that in the physician's good faith medical
judgment, based upon the facts known to the physician at that time, so endangers the life
of the pregnant woman or a major bodily function of the pregnant woman as to necessitate
the immediate performance or inducement of an abortion.
new text end

new text begin (g) "Physician" means a person licensed to practice medicine pursuant to chapter
147, or a physician in training under the supervision of a licensed physician.
new text end

new text begin (h) "Spontaneous abortion" means a miscarriage or the spontaneous loss of a fetus
before the twentieth week of pregnancy.
new text end

new text begin (i) "Unborn child" means an individual organism of the species homo sapiens from
fertilization until live birth.
new text end

Sec. 3.

new text begin [145.4073] PROHIBITED ABORTION; FETAL HEARTBEAT.
new text end

new text begin Subdivision 1. new text end

new text begin Determination of presences of fetal heartbeat. new text end

new text begin (a) Except when
a medical emergency exists that prevents compliance with this section, no person shall
perform an abortion on a pregnant woman prior to determining whether the fetus has a
detectable fetal heartbeat. Any person who performs an abortion on a pregnant woman
based on the exception provided in this section shall note in the woman's medical record
that a medical emergency necessitating the abortion existed.
new text end

new text begin (b) A person who intends to perform an abortion on a pregnant woman shall
determine whether there is the presence of a fetal heartbeat of the unborn child according
to standard medical practice. A person shall comply with this paragraph regardless of
whether the commissioner of health has promulgated rules under paragraph (c).
new text end

new text begin (c) The commissioner of health may promulgate rules describing the appropriate
methods of performing an examination for the presence of a fetal heartbeat of an unborn
child based on standard medical practice.
new text end

new text begin (d) If a physician performs an abortion on a pregnant woman prior to determining
whether the fetus has a detectable fetal heartbeat, that physician is subject to disciplinary
action under section 147.091.
new text end

new text begin Subd. 2. new text end

new text begin Detected fetal heartbeat; information provided. new text end

new text begin This subdivision
applies to all abortions that are not otherwise prohibited by state law, except when a
medical emergency exists that prevents compliance with this subdivision.
new text end

new text begin (a) If the person who intends to perform an abortion on a pregnant woman detects
a fetal heartbeat in the unborn child no later than 24 hours prior to the performance of
the intended abortion, then the following applies: the person intending to perform the
abortion shall inform the pregnant woman in writing that the unborn child has a fetal
heartbeat and, to the best of the person's knowledge, the statistical probability of bringing
the unborn child to term based on the gestational age of the unborn child possessing a
detectable fetal heartbeat.
new text end

new text begin A person shall comply with this subdivision regardless of whether the commissioner
of health has promulgated rules under paragraph (c).
new text end

new text begin (b) The pregnant woman shall sign a form acknowledging that she received
information from the person intending to perform the abortion that the unborn child has a
fetal heartbeat and that she is aware of the statistical probability of bringing the unborn
child to term.
new text end

new text begin (c) The commissioner of health may define and promulgate rules based upon
available medical evidence of the statistical probability of bringing an unborn child to term
based on the gestational age of an unborn child who possesses a detectable fetal heartbeat.
new text end

new text begin Subd. 3. new text end

new text begin Abortion prohibited when fetal heartbeat detected. new text end

new text begin (a) Except as
provided in paragraph (b), no person shall knowingly perform an abortion on a pregnant
woman with specific intent to cause the termination of the life of the unborn child
whose fetal heartbeat has been detected according to the requirements of subdivision 1.
Any person who acts based on an exception provided paragraph (b) shall so note in the
pregnant woman's medical record and shall specify in the pregnant woman's medical
record which exception the person invoked.
new text end

new text begin (b) A person is not in violation of paragraph (a) if that person performs a medical
procedure designed or intended, in that person's reasonable medical judgment, to prevent
the death of a pregnant woman or to prevent a serious risk of the substantial and
irreversible impairment of a major bodily function of the pregnant woman.
new text end

new text begin Any person who performs a medical procedure as described in this paragraph shall
declare in writing, under penalty of perjury, that the medical procedure is necessary, to the
best of that person's reasonable medical judgment, to prevent the death of the pregnant
woman or to prevent a serious risk of the substantial and irreversible impairment of a
major bodily function of the pregnant woman. The person shall also provide in writing,
under penalty of perjury, the type of medical condition the pregnant woman experienced
which required the medical procedure performed as described in paragraph (a), and the
medical rationale for the conclusion that the medical procedure is necessary to prevent the
death of the pregnant woman or to prevent a serious risk of the substantial and irreversible
impairment of a major bodily function of the pregnant woman.
new text end

new text begin (c) The person who performs a medical procedure as described in paragraph (b) shall
include the required written documentation in the pregnant woman's medical record and
shall maintain a record of the documentation for at least seven years.
new text end

new text begin (d) A person is not in violation of paragraph (a) if that person has performed an
examination for the presence of a fetal heartbeat utilizing standard medical practice and
that examination does not reveal the presence of a heartbeat, or the person has been
informed by a physician who has performed the examination for fetal heartbeat that the
examination did not reveal a heartbeat.
new text end

new text begin (e) Whoever violates this subdivision is guilty of a felony and must be sentenced to
imprisonment for not less than six years, but not more than 12 years, and to payment of
a fine of up to $10,000.
new text end

new text begin Subd. 4. new text end

new text begin Record of medical emergency exceptions. new text end

new text begin Any person performing an
abortion on a pregnant woman carrying an unborn child whose heartbeat has been detected
pursuant to the requirements of subdivision 1 to preserve the health of the pregnant woman
shall set forth in a separate document, under penalty of perjury, the medical condition that
the abortion would assertedly address and the medical rationale for the conclusion that
the abortion is necessary to address that condition. The person shall include this written
documentation in the pregnant woman's medical record and shall maintain a copy in
the person's own records for at least seven years. This documentation requirement is
independent of the provisions in subdivision 3 of this section.
new text end

new text begin Subd. 5. new text end

new text begin Pregnant woman not liable. new text end

new text begin A pregnant woman on whom an abortion
is performed in violation of subdivision 1 is not guilty of any violation of this section or
of attempting to commit or conspiring to commit any violation of this section and is not
subject to a civil penalty based on that violation.
new text end

new text begin Subd. 6. new text end

new text begin Contraceptives not prohibited. new text end

new text begin Nothing in this section prohibits the
sale, use, prescription, or administration of a measure, drug, or chemical designed for
contraceptive purposes.
new text end

new text begin Subd. 7. new text end

new text begin Severability. new text end

new text begin If any one or more provision, section, subdivision, paragraph,
sentence, clause, phrase, or word of sections 145.4071 to 145.4073 or the application
thereof to any person or circumstance is found to be unconstitutional, the same is hereby
declared to be severable and the balance of sections 145.4071 to 145.4073 shall remain
effective notwithstanding such unconstitutionality. The legislature hereby declares
that it would have passed sections 145.4071 to 145.4073, and each provision, section,
subdivision, paragraph, sentence, clause, phrase, or word thereof, irrespective of the fact
that any one or more provision, section, subdivision, paragraph, sentence, clause, phrase,
or word be declared unconstitutional.
new text end

Sec. 4.

Minnesota Statutes 2010, section 147.091, subdivision 1, is amended to read:


Subdivision 1.

Grounds listed.

The board may refuse to grant a license, may
refuse to grant registration to perform interstate telemedicine services, or may impose
disciplinary action as described in section 147.141 against any physician. The following
conduct is prohibited and is grounds for disciplinary action:

(a) Failure to demonstrate the qualifications or satisfy the requirements for a license
contained in this chapter or rules of the board. The burden of proof shall be upon the
applicant to demonstrate such qualifications or satisfaction of such requirements.

(b) Obtaining a license by fraud or cheating, or attempting to subvert the licensing
examination process. Conduct which subverts or attempts to subvert the licensing
examination process includes, but is not limited to: (1) conduct which violates the
security of the examination materials, such as removing examination materials from the
examination room or having unauthorized possession of any portion of a future, current, or
previously administered licensing examination; (2) conduct which violates the standard of
test administration, such as communicating with another examinee during administration
of the examination, copying another examinee's answers, permitting another examinee
to copy one's answers, or possessing unauthorized materials; or (3) impersonating an
examinee or permitting an impersonator to take the examination on one's own behalf.

(c) Conviction, during the previous five years, of a felony reasonably related to the
practice of medicine or osteopathy. Conviction as used in this subdivision shall include
a conviction of an offense which if committed in this state would be deemed a felony
without regard to its designation elsewhere, or a criminal proceeding where a finding or
verdict of guilt is made or returned but the adjudication of guilt is either withheld or
not entered thereon.

(d) Revocation, suspension, restriction, limitation, or other disciplinary action
against the person's medical license in another state or jurisdiction, failure to report to the
board that charges regarding the person's license have been brought in another state or
jurisdiction, or having been refused a license by any other state or jurisdiction.

(e) Advertising which is false or misleading, which violates any rule of the board,
or which claims without substantiation the positive cure of any disease, or professional
superiority to or greater skill than that possessed by another physician.

(f) Violating a rule promulgated by the board or an order of the board, a state, or
federal law which relates to the practice of medicine, or in part regulates the practice of
medicine including without limitation sections 604.201, 609.344, and 609.345, or a state
or federal narcotics or controlled substance law.

(g) Engaging in any unethical conduct; conduct likely to deceive, defraud, or harm
the public, or demonstrating a willful or careless disregard for the health, welfare or safety
of a patient; or medical practice which is professionally incompetent, in that it may create
unnecessary danger to any patient's life, health, or safety, in any of which cases, proof
of actual injury need not be established.

(h) Failure to supervise a physician's assistant or failure to supervise a physician
under any agreement with the board.

(i) Aiding or abetting an unlicensed person in the practice of medicine, except that
it is not a violation of this paragraph for a physician to employ, supervise, or delegate
functions to a qualified person who may or may not be required to obtain a license or
registration to provide health services if that person is practicing within the scope of that
person's license or registration or delegated authority.

(j) Adjudication as mentally incompetent, mentally ill or developmentally disabled,
or as a chemically dependent person, a person dangerous to the public, a sexually
dangerous person, or a person who has a sexual psychopathic personality by a court of
competent jurisdiction, within or without this state. Such adjudication shall automatically
suspend a license for the duration thereof unless the board orders otherwise.

(k) Engaging in unprofessional conduct. Unprofessional conduct shall include
any departure from or the failure to conform to the minimal standards of acceptable
and prevailing medical practice in which proceeding actual injury to a patient need not
be established.

(l) Inability to practice medicine with reasonable skill and safety to patients by
reason of illness, drunkenness, use of drugs, narcotics, chemicals or any other type of
material or as a result of any mental or physical condition, including deterioration through
the aging process or loss of motor skills.

(m) Revealing a privileged communication from or relating to a patient except when
otherwise required or permitted by law.

(n) Failure by a doctor of osteopathy to identify the school of healing in the
professional use of the doctor's name by one of the following terms: osteopathic physician
and surgeon, doctor of osteopathy, or D.O.

(o) Improper management of medical records, including failure to maintain adequate
medical records, to comply with a patient's request made pursuant to sections 144.291 to
144.298 or to furnish a medical record or report required by law.

(p) Fee splitting, including without limitation:

(1) paying, offering to pay, receiving, or agreeing to receive, a commission, rebate,
or remuneration, directly or indirectly, primarily for the referral of patients or the
prescription of drugs or devices;

(2) dividing fees with another physician or a professional corporation, unless the
division is in proportion to the services provided and the responsibility assumed by each
professional and the physician has disclosed the terms of the division;

(3) referring a patient to any health care provider as defined in sections 144.291 to
144.298 in which the referring physician has a "financial or economic interest," as defined
in section 144.6521, subdivision 3, unless the physician has disclosed the physician's
financial or economic interest in accordance with section 144.6521; and

(4) dispensing for profit any drug or device, unless the physician has disclosed the
physician's own profit interest.

The physician must make the disclosures required in this clause in advance and in writing
to the patient and must include in the disclosure a statement that the patient is free to
choose a different health care provider. This clause does not apply to the distribution
of revenues from a partnership, group practice, nonprofit corporation, or professional
corporation to its partners, shareholders, members, or employees if the revenues consist
only of fees for services performed by the physician or under a physician's direct
supervision, or to the division or distribution of prepaid or capitated health care premiums,
or fee-for-service withhold amounts paid under contracts established under other state law.

(q) Engaging in abusive or fraudulent billing practices, including violations of the
federal Medicare and Medicaid laws or state medical assistance laws.

(r) Becoming addicted or habituated to a drug or intoxicant.

(s) Prescribing a drug or device for other than medically accepted therapeutic or
experimental or investigative purposes authorized by a state or federal agency or referring
a patient to any health care provider as defined in sections 144.291 to 144.298 for services
or tests not medically indicated at the time of referral.

(t) Engaging in conduct with a patient which is sexual or may reasonably be
interpreted by the patient as sexual, or in any verbal behavior which is seductive or
sexually demeaning to a patient.

(u) Failure to make reports as required by section 147.111 or to cooperate with an
investigation of the board as required by section 147.131.

(v) Knowingly providing false or misleading information that is directly related
to the care of that patient unless done for an accepted therapeutic purpose such as the
administration of a placebo.

(w) Aiding suicide or aiding attempted suicide in violation of section 609.215 as
established by any of the following:

(1) a copy of the record of criminal conviction or plea of guilty for a felony in
violation of section 609.215, subdivision 1 or 2;

(2) a copy of the record of a judgment of contempt of court for violating an
injunction issued under section 609.215, subdivision 4;

(3) a copy of the record of a judgment assessing damages under section 609.215,
subdivision 5
; or

(4) a finding by the board that the person violated section 609.215, subdivision
1
or 2. The board shall investigate any complaint of a violation of section 609.215,
subdivision 1
or 2.

(x) Practice of a board-regulated profession under lapsed or nonrenewed credentials.

(y) Failure to repay a state or federally secured student loan in accordance with
the provisions of the loan.

(z) Providing interstate telemedicine services other than according to section
147.032.

new text begin (aa) Performing an abortion on a pregnant woman prior to determining if the fetus
has a detectable fetal heartbeat, as required in section 145.4073.
new text end