Office of the Revisor of Statutes
Minnesota Session Laws - 2003, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 14-S.F.No. 187
An act relating to health; requiring informed consent
of a female upon whom an abortion is performed;
providing civil remedies; repealing an obsolete law;
appropriating money; amending Minnesota Statutes 2002,
section 145.4134; proposing coding for new law in
Minnesota Statutes, chapter 145; repealing Minnesota
Statutes 2002, section 145.413, subdivision 1.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
ARTICLE 1
Section 1. [SHORT TITLE.]
Sections 1 to 10 shall be known and may be cited as the
"Woman's Right to Know Act."
Sec. 2. [145.4241] [DEFINITIONS.]
Subdivision 1. [APPLICABILITY.] As used in sections
145.4241 to 145.4249, the following terms have the meaning given
them.
Subd. 2. [ABORTION.] "Abortion" means the use or
prescription of any instrument, medicine, drug, or any other
substance or device to intentionally terminate the pregnancy of
a female known to be pregnant, with an intention other than to
increase the probability of a live birth, to preserve the life
or health of the child after live birth, or to remove a dead
fetus.
Subd. 3. [ATTEMPT TO PERFORM AN ABORTION.] "Attempt to
perform an abortion" means an act, or an omission of a
statutorily required act, that, under the circumstances as the
actor believes them to be, constitutes a substantial step in a
course of conduct planned to culminate in the performance of an
abortion in Minnesota in violation of sections 145.4241 to
145.4249.
Subd. 4. [MEDICAL EMERGENCY.] "Medical emergency" means
any condition that, on the basis of the physician's good faith
clinical judgment, so complicates the medical condition of a
pregnant female as to necessitate the immediate abortion of her
pregnancy to avert her death or for which a delay will create
serious risk of substantial and irreversible impairment of a
major bodily function.
Subd. 5. [PHYSICIAN.] "Physician" means a person licensed
as a physician or osteopath under chapter 147.
Subd. 6. [PROBABLE GESTATIONAL AGE OF THE UNBORN
CHILD.] "Probable gestational age of the unborn child" means
what will, in the judgment of the physician, with reasonable
probability, be the gestational age of the unborn child at the
time the abortion is planned to be performed.
Subd. 7. [STABLE INTERNET WEB SITE.] "Stable Internet Web
site" means a Web site that, to the extent reasonably
practicable, is safeguarded from having its content altered
other than by the commissioner of health.
Subd. 8. [UNBORN CHILD.] "Unborn child" means a member of
the species Homo sapiens from fertilization until birth.
Sec. 3. [145.4242] [INFORMED CONSENT.]
No abortion shall be performed in this state except with
the voluntary and informed consent of the female upon whom the
abortion is to be performed. Except in the case of a medical
emergency, consent to an abortion is voluntary and informed only
if:
(1) the female is told the following, by telephone or in
person, by the physician who is to perform the abortion or by a
referring physician, at least 24 hours before the abortion:
(i) the particular medical risks associated with the
particular abortion procedure to be employed including, when
medically accurate, the risks of infection, hemorrhage, breast
cancer, danger to subsequent pregnancies, and infertility;
(ii) the probable gestational age of the unborn child at
the time the abortion is to be performed; and
(iii) the medical risks associated with carrying her child
to term.
The information required by this clause may be provided by
telephone without conducting a physical examination or tests of
the patient, in which case the information required to be
provided may be based on facts supplied to the physician by the
female and whatever other relevant information is reasonably
available to the physician. It may not be provided by a tape
recording, but must be provided during a consultation in which
the physician is able to ask questions of the female and the
female is able to ask questions of the physician. If a physical
examination, tests, or the availability of other information to
the physician subsequently indicate, in the medical judgment of
the physician, a revision of the information previously supplied
to the patient, that revised information may be communicated to
the patient at any time prior to the performance of the
abortion. Nothing in this section may be construed to preclude
provision of required information in a language understood by
the patient through a translator;
(2) the female is informed, by telephone or in person, by
the physician who is to perform the abortion, by a referring
physician, or by an agent of either physician at least 24 hours
before the abortion:
(i) that medical assistance benefits may be available for
prenatal care, childbirth, and neonatal care;
(ii) that the father is liable to assist in the support of
her child, even in instances when the father has offered to pay
for the abortion; and
(iii) that she has the right to review the printed
materials described in section 145.4243, that these materials
are available on a state-sponsored Web site, and what the Web
site address is. The physician or the physician's agent shall
orally inform the female that the materials have been provided
by the state of Minnesota and that they describe the unborn
child, list agencies that offer alternatives to abortion, and
contain information on fetal pain. If the female chooses to
view the materials other than on the Web site, they shall either
be given to her at least 24 hours before the abortion or mailed
to her at least 72 hours before the abortion by certified mail,
restricted delivery to addressee, which means the postal
employee can only deliver the mail to the addressee.
The information required by this clause may be provided by
a tape recording if provision is made to record or otherwise
register specifically whether the female does or does not choose
to have the printed materials given or mailed to her;
(3) the female certifies in writing, prior to the abortion,
that the information described in clauses (1) and (2) has been
furnished to her and that she has been informed of her
opportunity to review the information referred to in clause (2),
subclause (iii); and
(4) prior to the performance of the abortion, the physician
who is to perform the abortion or the physician's agent obtains
a copy of the written certification prescribed by clause (3) and
retains it on file with the female's medical record for at least
three years following the date of receipt.
Sec. 4. [145.4243] [PRINTED INFORMATION.]
(a) Within 90 days after the effective date of sections
145.4241 to 145.4249, the commissioner of health shall cause to
be published, in English and in each language that is the
primary language of two percent or more of the state's
population, and shall cause to be available on the state Web
site provided for under section 145.4244 the following printed
materials in such a way as to ensure that the information is
easily comprehensible:
(1) geographically indexed materials designed to inform the
female of public and private agencies and services available to
assist a female through pregnancy, upon childbirth, and while
the child is dependent, including adoption agencies, which shall
include a comprehensive list of the agencies available, a
description of the services they offer, and a description of the
manner, including telephone numbers, in which they might be
contacted or, at the option of the commissioner of health,
printed materials including a toll-free, 24-hours-a-day
telephone number that may be called to obtain, orally or by a
tape recorded message tailored to a zip code entered by the
caller, such a list and description of agencies in the locality
of the caller and of the services they offer;
(2) materials designed to inform the female of the probable
anatomical and physiological characteristics of the unborn child
at two-week gestational increments from the time when a female
can be known to be pregnant to full term, including any relevant
information on the possibility of the unborn child's survival
and pictures or drawings representing the development of unborn
children at two-week gestational increments, provided that any
such pictures or drawings must contain the dimensions of the
fetus and must be realistic and appropriate for the stage of
pregnancy depicted. The materials shall be objective,
nonjudgmental, and designed to convey only accurate scientific
information about the unborn child at the various gestational
ages. The material shall also contain objective information
describing the methods of abortion procedures commonly employed,
the medical risks commonly associated with each procedure, the
possible detrimental psychological effects of abortion, and the
medical risks commonly associated with carrying a child to term;
and
(3) materials with the following information concerning an
unborn child of 20 weeks gestational age and at two weeks
gestational increments thereafter in such a way as to ensure
that the information is easily comprehensible:
(i) the development of the nervous system of the unborn
child;
(ii) fetal responsiveness to adverse stimuli and other
indications of capacity to experience organic pain; and
(iii) the impact on fetal organic pain of each of the
methods of abortion procedures commonly employed at this stage
of pregnancy.
The material under this clause shall be objective,
nonjudgmental, and designed to convey only accurate scientific
information.
(b) The materials referred to in this section must be
printed in a typeface large enough to be clearly legible. The
Web site provided for under section 145.4244 shall be maintained
at a minimum resolution of 70 DPI (dots per inch). All pictures
appearing on the Web site shall be a minimum of 200x300 pixels.
All letters on the Web site shall be a minimum of 11-point
font. All information and pictures shall be accessible with an
industry standard browser, requiring no additional plug-ins.
The materials required under this section must be available at
no cost from the commissioner of health upon request and in
appropriate number to any person, facility, or hospital.
Sec. 5. [145.4244] [INTERNET WEB SITE.]
The commissioner of health shall develop and maintain a
stable Internet Web site to provide the information described
under section 145.4243. No information regarding who uses the
Web site shall be collected or maintained. The commissioner of
health shall monitor the Web site on a weekly basis to prevent
and correct tampering.
Sec. 6. [145.4245] [PROCEDURE IN CASE OF MEDICAL
EMERGENCY.]
When a medical emergency compels the performance of an
abortion, the physician shall inform the female, prior to the
abortion if possible, of the medical indications supporting the
physician's judgment that an abortion is necessary to avert her
death or that a 24-hour delay will create serious risk of
substantial and irreversible impairment of a major bodily
function.
Sec. 7. [145.4246] [REPORTING REQUIREMENTS.]
Subdivision 1. [REPORTING FORM.] Within 90 days after the
effective date of sections 145.4241 to 145.4249, the
commissioner of health shall prepare a reporting form for
physicians containing a reprint of sections 145.4241 to 145.4249
and listing:
(1) the number of females to whom the physician provided
the information described in section 145.4242, clause (1); of
that number, the number provided by telephone and the number
provided in person; and of each of those numbers, the number
provided in the capacity of a referring physician and the number
provided in the capacity of a physician who is to perform the
abortion;
(2) the number of females to whom the physician or an agent
of the physician provided the information described in section
145.4242, clause (2); of that number, the number provided by
telephone and the number provided in person; of each of those
numbers, the number provided in the capacity of a referring
physician and the number provided in the capacity of a physician
who is to perform the abortion; and of each of those numbers,
the number provided by the physician and the number provided by
an agent of the physician;
(3) the number of females who availed themselves of the
opportunity to obtain a copy of the printed information
described in section 145.4243 other than on the Web site and the
number who did not; and of each of those numbers, the number
who, to the best of the reporting physician's information and
belief, went on to obtain the abortion; and
(4) the number of abortions performed by the physician in
which information otherwise required to be provided at least 24
hours before the abortion was not so provided because an
immediate abortion was necessary to avert the female's death and
the number of abortions in which such information was not so
provided because a delay would create serious risk of
substantial and irreversible impairment of a major bodily
function.
Subd. 2. [DISTRIBUTION OF FORMS.] The commissioner of
health shall ensure that copies of the reporting forms described
in subdivision 1 are provided:
(1) by December 1, 2003, and by December 1 of each
subsequent year thereafter to all physicians licensed to
practice in this state; and
(2) to each physician who subsequently becomes newly
licensed to practice in this state, at the same time as official
notification to that physician that the physician is so licensed.
Subd. 3. [REPORTING REQUIREMENT.] By April 1, 2005, and by
April 1 of each subsequent year thereafter, each physician who
provided, or whose agent provided, information to one or more
females in accordance with section 145.4242 during the previous
calendar year shall submit to the commissioner of health a copy
of the form described in subdivision 1 with the requested data
entered accurately and completely.
Subd. 4. [ADDITIONAL REPORTING.] Nothing in this section
shall be construed to preclude the voluntary or required
submission of other reports or forms regarding abortions.
Subd. 5. [FAILURE TO REPORT AS REQUIRED.] Reports that are
not submitted by the end of a grace period of 30 days following
the due date shall be subject to a late fee of $500 for each
additional 30-day period or portion of a 30-day period they are
overdue. Any physician required to report according to this
section who has not submitted a report, or has submitted only an
incomplete report, more than one year following the due date,
may, in an action brought by the commissioner of health, be
directed by a court of competent jurisdiction to submit a
complete report within a period stated by court order or be
subject to sanctions for civil contempt.
Subd. 6. [PUBLIC STATISTICS.] By July 1, 2005, and by July
1 of each subsequent year thereafter, the commissioner of health
shall issue a public report providing statistics for the
previous calendar year compiled from all of the reports covering
that year submitted according to this section for each of the
items listed in subdivision 1. Each report shall also provide
the statistics for all previous calendar years, adjusted to
reflect any additional information from late or corrected
reports. The commissioner of health shall take care to ensure
that none of the information included in the public reports
could reasonably lead to the identification of any individual
providing or provided information according to section 145.4242.
Subd. 7. [CONSOLIDATION.] The commissioner of health may
consolidate the forms or reports described in this section with
other forms or reports to achieve administrative convenience or
fiscal savings or to reduce the burden of reporting requirements.
Sec. 8. [145.4247] [REMEDIES.]
Subdivision 1. [CIVIL REMEDIES.] Any person upon whom an
abortion has been performed without complying with sections
145.4241 to 145.4249 may maintain an action against the person
who performed the abortion in knowing or reckless violation of
sections 145.4241 to 145.4249 for actual and punitive damages.
Any person upon whom an abortion has been attempted without
complying with sections 145.4241 to 145.4249 may maintain an
action against the person who attempted to perform the abortion
in knowing or reckless violation of sections 145.4241 to
145.4249 for actual and punitive damages. No civil liability
may be assessed for failure to comply with section 145.4242,
clause (2), item (iii), or that portion of section 145.4242,
clause (2), requiring written certification that the female has
been informed of her opportunity to review the information
referred to in section 145.4242, clause (2), item (iii), unless
the commissioner of health has made the printed materials or Web
site address available at the time the physician or the
physician's agent is required to inform the female of her right
to review them.
Subd. 2. [SUIT TO COMPEL STATISTICAL REPORT.] If the
commissioner of health fails to issue the public report required
under section 145.4246, subdivision 6, or fails in any way to
enforce this act, any group of ten or more citizens of this
state may seek an injunction in a court of competent
jurisdiction against the commissioner of health requiring that a
complete report be issued within a period stated by court
order. Failure to abide by such an injunction shall subject the
commissioner to sanctions for civil contempt.
Subd. 3. [ATTORNEY FEES.] If judgment is rendered in favor
of the plaintiff in any action described in this section, the
court shall also render judgment for reasonable attorney fees in
favor of the plaintiff against the defendant. If judgment is
rendered in favor of the defendant and the court finds that the
plaintiff's suit was frivolous and brought in bad faith, the
court shall also render judgment for reasonable attorney fees in
favor of the defendant against the plaintiff.
Subd. 4. [PROTECTION OF PRIVACY IN COURT PROCEEDINGS.] In
every civil action brought under sections 145.4241 to 145.4249,
the court shall rule whether the anonymity of any female upon
whom an abortion has been performed or attempted shall be
preserved from public disclosure if she does not give her
consent to such disclosure. The court, upon motion or sua
sponte, shall make such a ruling and, upon determining that her
anonymity should be preserved, shall issue orders to the
parties, witnesses, and counsel and shall direct the sealing of
the record and exclusion of individuals from courtrooms or
hearing rooms to the extent necessary to safeguard her identity
from public disclosure. Each order must be accompanied by
specific written findings explaining why the anonymity of the
female should be preserved from public disclosure, why the order
is essential to that end, how the order is narrowly tailored to
serve that interest, and why no reasonable, less restrictive
alternative exists. In the absence of written consent of the
female upon whom an abortion has been performed or attempted,
anyone, other than a public official, who brings an action under
subdivision 1, shall do so under a pseudonym. This section may
not be construed to conceal the identity of the plaintiff or of
witnesses from the defendant.
Sec. 9. [145.4248] [SEVERABILITY.]
If any one or more provision, section, subsection,
sentence, clause, phrase, or word of sections 145.4241 to
145.4249 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 145.4241 to
145.4249 shall remain effective notwithstanding such
unconstitutionality. The legislature hereby declares that it
would have passed sections 145.4241 to 145.4249, and each
provision, section, subsection, sentence, clause, phrase, or
word thereof, irrespective of the fact that any one or more
provision, section, subsection, sentence, clause, phrase, or
word be declared unconstitutional.
Sec. 10. [145.4249] [SUPREME COURT JURISDICTION.]
The Minnesota supreme court has original jurisdiction over
an action challenging the constitutionality of sections 145.4241
to 145.4249 and shall expedite the resolution of the action.
Sec. 11. [APPROPRIATION.]
$274,000 in fiscal year 2004 and $214,000 in fiscal year
2005 are appropriated from the general fund to the commissioner
of health for the purposes of this act. The base for this
program in fiscal year 2006 and thereafter is $207,000.
ARTICLE 2
Section 1. Minnesota Statutes 2002, section 145.4134, is
amended to read:
145.4134 [COMMISSIONER'S PUBLIC REPORT.]
(a) By July 1 of each year, except for 1998 and 1999
information, the commissioner shall issue a public report
providing statistics for the previous calendar year compiled
from the data submitted under sections 145.4131 to 145.4133 and
sections 145.4241 to 145.4249. For 1998 and 1999 information,
the report shall be issued October 1, 2000. Each report shall
provide the statistics for all previous calendar years, adjusted
to reflect any additional information from late or corrected
reports. The commissioner shall ensure that none of the
information included in the public reports can reasonably lead
to identification of an individual having performed or having
had an abortion. All data included on the forms under sections
145.4131 to 145.4133 and sections 145.4241 to 145.4249 must be
included in the public report, except that the commissioner
shall maintain as confidential, data which alone or in
combination may constitute information from which an individual
having performed or having had an abortion may be identified
using epidemiologic principles. The commissioner shall submit
the report to the senate health and family security committee
and the house health and human services committee.
(b) The commissioner may, by rules adopted under chapter
14, alter the submission dates established under sections
145.4131 to 145.4133 for administrative convenience, fiscal
savings, or other valid reason, provided that physicians or
facilities and the commissioner of human services submit the
required information once each year and the commissioner issues
a report once each year.
Sec. 2. [REPEALER.]
Minnesota Statutes 2002, section 145.413, subdivision 1, is
repealed. Notwithstanding Minnesota Statutes, section 14.05,
repeal of section 145.413, subdivision 1, does not repeal rules
adopted under that subdivision.
Presented to the governor April 14, 2003
Signed by the governor April 14, 2003, 4:45 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes