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Minnesota Legislature

Office of the Revisor of Statutes

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.