1.1                          A bill for an act 
  1.2             relating to health; requiring information be provided 
  1.3             to a woman upon whom an abortion is to be performed; 
  1.4             requiring certification; requiring publication and 
  1.5             provision of information and material; requiring 
  1.6             reports; providing penalties; amending Minnesota 
  1.7             Statutes 1994, sections 145.411, subdivision 1, and by 
  1.8             adding subdivisions; and 145.412, subdivision 1, and 
  1.9             by adding a subdivision; proposing coding for new law 
  1.10            in Minnesota Statutes, chapter 145. 
  1.11  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.12     Section 1.  Minnesota Statutes 1994, section 145.411, 
  1.13  subdivision 1, is amended to read: 
  1.14     Subdivision 1.  [TERMS.] As used in sections 145.411 to 
  1.15  145.416, the terms defined in this section have the 
  1.16  meaning meanings given to them. 
  1.17     Sec. 2.  Minnesota Statutes 1994, section 145.411, is 
  1.18  amended by adding a subdivision to read: 
  1.19     Subd. 6.  [QUALIFIED PERSON.] "Qualified person" means an 
  1.20  agent of the physician who is to perform an abortion, which 
  1.21  agent is a licensed psychologist, licensed social worker, 
  1.22  registered nurse, or licensed physician. 
  1.23     Sec. 3.  Minnesota Statutes 1994, section 145.411, is 
  1.24  amended by adding a subdivision to read: 
  1.25     Subd. 7.  [DEPARTMENT.] "Department" means the Minnesota 
  1.26  department of health. 
  1.27     Sec. 4.  Minnesota Statutes 1994, section 145.412, 
  1.28  subdivision 1, is amended to read: 
  2.1      Subdivision 1.  [REQUIREMENTS.] It shall be unlawful to 
  2.2   willfully perform an abortion unless the abortion is performed: 
  2.3      (1) by a physician licensed to practice medicine pursuant 
  2.4   to chapter 147, or a physician in training under the supervision 
  2.5   of a licensed physician; 
  2.6      (2) in a hospital or abortion facility if the abortion is 
  2.7   performed after the first trimester; 
  2.8      (3) in a manner consistent with the lawful rules 
  2.9   promulgated by the state commissioner of health; and 
  2.10     (4) with the consent of the woman submitting to the 
  2.11  abortion after a full explanation of the procedure and effect of 
  2.12  the abortion, in accordance with section 145.4121. 
  2.13     Sec. 5.  Minnesota Statutes 1994, section 145.412, is 
  2.14  amended by adding a subdivision to read: 
  2.15     Subd. 1a.  [INFORMED CONSENT REQUIREMENT.] (a) It shall be 
  2.16  unlawful to intentionally, knowingly, or recklessly fail to 
  2.17  comply with the requirements of section 145.4121. 
  2.18     (b) No physician shall be guilty of violating this 
  2.19  subdivision if the physician can demonstrate, by a preponderance 
  2.20  of the evidence, that the physician reasonably believed that 
  2.21  furnishing the required information would have resulted in a 
  2.22  severely adverse effect on the physical or mental health of the 
  2.23  pregnant woman.  
  2.24     Sec. 6.  [145.4121] [INFORMED CONSENT REQUIREMENTS.] 
  2.25     After a woman is determined to be pregnant, no abortion 
  2.26  shall be performed without the voluntary and informed consent of 
  2.27  the woman upon whom the abortion is to be performed.  Except in 
  2.28  the case of a medical emergency, consent to an abortion is 
  2.29  voluntary and informed only if the requirements in paragraphs 
  2.30  (a) to (g) are met. 
  2.31     (a) At least 24 hours before the abortion, the physician 
  2.32  who is to perform the abortion or the referring physician must 
  2.33  inform the woman orally and in person of: 
  2.34     (1) the name of the physician who will perform the 
  2.35  abortion; 
  2.36     (2) a description of the proposed abortion method and of 
  3.1   the risks, including risks to the woman's reproductive health, 
  3.2   and alternatives to the abortion which a reasonable patient 
  3.3   would consider material to the decision of whether or not to 
  3.4   undergo the abortion; 
  3.5      (3) the probable gestational age of the unborn child at the 
  3.6   time the abortion is to be performed.  If the unborn child is 
  3.7   viable or has reached the gestational age of 24 weeks and the 
  3.8   abortion may be otherwise lawfully performed under existing law, 
  3.9   the woman must also be informed that: 
  3.10     (i) the unborn child may be able to survive outside the 
  3.11  womb, 
  3.12     (ii) the woman has the right to request the physician to 
  3.13  use the method of abortion that is most likely to preserve the 
  3.14  life of the unborn child, and 
  3.15     (iii) if the child is born alive, attending physicians have 
  3.16  the legal obligation to take all reasonable steps necessary to 
  3.17  maintain the life and health of the child; 
  3.18     (4) the probable anatomical and physiological 
  3.19  characteristics of the unborn child at the time the abortion is 
  3.20  to be performed; 
  3.21     (5) the medical risks associated with carrying the child to 
  3.22  term; and 
  3.23     (6) any need for anti-Rh immune globulin therapy, if the 
  3.24  woman is Rh negative, the likely consequences of refusing the 
  3.25  therapy, and a good faith estimate of the cost of the therapy. 
  3.26     (b) At least 24 hours before the abortion, the physician 
  3.27  who is to perform the abortion, the referring physician, or a 
  3.28  qualified person must inform the woman orally and in person that:
  3.29     (1) medical assistance benefits may be available for 
  3.30  prenatal care, childbirth, and neonatal care, and more detailed 
  3.31  information on the availability of medical assistance benefits 
  3.32  is contained in the printed materials which shall be given to 
  3.33  the woman; 
  3.34     (2) the printed materials describe the unborn child and 
  3.35  list agencies which offer alternatives to abortion; 
  3.36     (3) the father of the unborn child is liable to assist in 
  4.1   the support of the woman's child, even in instances where the 
  4.2   father has offered to pay for the abortion.  In the case of 
  4.3   rape, this information may be omitted; and 
  4.4      (4) the woman is free to withhold or withdraw consent to 
  4.5   the abortion at any time before or during the abortion without 
  4.6   affecting the woman's right to future care or treatment and 
  4.7   without the loss of any state or federally funded benefits to 
  4.8   which the woman might otherwise be entitled. 
  4.9      (c) The information required by paragraphs (a) and (b) must 
  4.10  be provided to the woman individually and in a private room to 
  4.11  protect the woman's privacy and maintain the confidentiality of 
  4.12  the woman's decision, to ensure that the information focuses on 
  4.13  the woman's individual circumstances, and to ensure that the 
  4.14  woman has an adequate opportunity to ask questions. 
  4.15     (d) At least 24 hours before the abortion, the physician 
  4.16  who is to perform the abortion, the referring physician, or a 
  4.17  qualified person must give the woman a copy of the printed 
  4.18  materials described in section 145.4122.  If the woman is unable 
  4.19  to read the materials, they must be read to the woman.  If the 
  4.20  woman asks questions concerning any of the information or 
  4.21  materials, answers shall be provided to the woman in the woman's 
  4.22  own language.  If an interpreter is necessary, the cost of the 
  4.23  interpreter shall be borne by the state of Minnesota. 
  4.24     (e) Prior to the abortion, the woman must certify, in 
  4.25  writing on a form prescribed by the department and provided by 
  4.26  the physician or the physician's agent, that the information and 
  4.27  materials described in this section and section 145.4122 have 
  4.28  been provided.  
  4.29     (f) Prior to the abortion, the physician who is to perform 
  4.30  the abortion or the physician's agent must receive a copy of the 
  4.31  written certification required by paragraph (e). 
  4.32     (g) The woman may not be required to pay any amount for the 
  4.33  abortion procedures until at least 24 hours after receiving the 
  4.34  information and materials described in this section and section 
  4.35  145.4122. 
  4.36     Sec. 7.  [145.4122] [PUBLICATION OF MATERIALS.] 
  5.1      Subdivision 1.  The department shall cause to be published 
  5.2   in English, within 90 days after the effective date of this 
  5.3   section, and shall update on an annual basis, the following 
  5.4   printed materials: 
  5.5      (1) geographically indexed materials designed to inform the 
  5.6   woman of public and private agencies and services, including 
  5.7   adoption agencies, which are available to assist the woman 
  5.8   through pregnancy, upon childbirth, and while the child is 
  5.9   dependent.  The materials shall include a comprehensive list of 
  5.10  the agencies, a description of the services they offer, and the 
  5.11  telephone numbers and addresses of the agencies.  The materials 
  5.12  shall inform the woman about available medical assistance 
  5.13  benefits for prenatal care, childbirth, and neonatal care, and 
  5.14  about the support obligations of the father of a child who is 
  5.15  born alive.  The department shall ensure that the materials 
  5.16  described in this section are comprehensive and do not directly 
  5.17  or indirectly promote, exclude, or discourage the use of any 
  5.18  agency or service described in this section.  The materials 
  5.19  shall also contain a toll-free, 24-hour telephone number which 
  5.20  may be called to orally obtain a list and description of 
  5.21  agencies in the locality of the caller.  The toll-free telephone 
  5.22  number shall be funded by the department.  The materials shall 
  5.23  state that it is unlawful for an individual to coerce a woman to 
  5.24  undergo an abortion, that a physician who performs an abortion 
  5.25  upon a woman without her informed consent may be liable to the 
  5.26  woman for damages in a civil action, and that the law permits 
  5.27  adoptive parents to pay counseling, medical, and legal fees and 
  5.28  certain living expenses of the birth mother.  The materials 
  5.29  shall include the following statement: 
  5.30     "There are many public and private agencies willing and 
  5.31  able to help carry your child to term, and to assist you and 
  5.32  your child after your child is born, whether you choose to keep 
  5.33  your child or to place your child for adoption.  The state of 
  5.34  Minnesota strongly urges you to contact them before making a 
  5.35  final decision about abortion.  The law requires that your 
  5.36  physician or your physician's agent give you the opportunity to 
  6.1   call agencies like these before you undergo an abortion."; 
  6.2      (2) materials that inform the pregnant woman of the 
  6.3   probable anatomical and physiological characteristics of the 
  6.4   unborn child at two-week gestational increments from 
  6.5   fertilization to full term, including color pictures or drawings 
  6.6   representing the development of the unborn child at two-week 
  6.7   gestational increments, and any relevant information on the 
  6.8   possibility of the unborn child's survival.  The color pictures 
  6.9   or drawings must contain the dimensions of the unborn child and 
  6.10  must be realistic.  The materials shall be objective, 
  6.11  nonjudgmental, and designed to convey only accurate scientific 
  6.12  information about the unborn child at the various gestational 
  6.13  ages.  The material shall also contain objective information 
  6.14  describing the methods of abortion procedures commonly employed, 
  6.15  the medical risks commonly associated with each procedure, and 
  6.16  the medical risks commonly associated with carrying a child to 
  6.17  term; 
  6.18     (3) a certification form to be used by physicians or their 
  6.19  agents as provided in section 145.4121, paragraph (e), which 
  6.20  lists all the items of information which are to be given to a 
  6.21  woman by a physician or a physician's agent pursuant to section 
  6.22  145.4121. 
  6.23     Subd. 2.  The materials shall be printed in a typeface 
  6.24  large enough to be clearly legible and shall be easily 
  6.25  comprehensible. 
  6.26     Subd. 3.  The materials shall be available at no cost from 
  6.27  the department upon request and in appropriate number to any 
  6.28  person, facility, or hospital. 
  6.29     Subd. 4.  The department shall adopt rules relative to the 
  6.30  appropriate number and methods of reporting at no cost. 
  6.31     Sec. 8.  [145.4123] [MEDICAL EMERGENCY.] 
  6.32     Where a medical emergency compels the performance of an 
  6.33  abortion, the physician shall orally inform the woman, before 
  6.34  the abortion, if possible, of the medical indications supporting 
  6.35  the physician's judgment that an abortion is necessary to avert 
  6.36  the woman's death or to avert substantial and irreversible 
  7.1   impairment of a major bodily function. 
  7.2      Sec. 9.  [145.4124] [PHYSICIAN REPORTING REQUIREMENTS.] 
  7.3      Subdivision 1.  A physician who has provided the 
  7.4   information and materials to a woman in accordance with the 
  7.5   requirements of section 145.4121 shall provide to the department:
  7.6      (1) with respect to a woman upon whom an abortion is 
  7.7   performed, all information required by section 145.413; the date 
  7.8   upon which the information and materials required to be provided 
  7.9   under section 145.4121 were provided; and an executed copy of 
  7.10  the certification form required by section 145.4121, paragraph 
  7.11  (e); or 
  7.12     (2) with respect to a woman upon whom the physician has not 
  7.13  performed an abortion, the name and address of the facility 
  7.14  where the required information was provided; to the extent 
  7.15  applicable, the information required by section 145.413; and if 
  7.16  executed by the woman, a copy of the certification form required 
  7.17  by section 145.4121, paragraph (e). 
  7.18     Subd. 2.  A physician who performs abortions shall report 
  7.19  the total number of certifications received monthly to the 
  7.20  department.  The department shall make the number of 
  7.21  certifications received available on an annual basis. 
  7.22     Sec. 10.  [145.4125] [CIVIL PENALTIES.] 
  7.23     In addition to whatever remedies are otherwise available 
  7.24  under the laws of this state, failure to comply with the 
  7.25  requirements of section 145.4121 shall provide a basis for: 
  7.26     (1) a civil malpractice action.  An intentional violation 
  7.27  of section 145.4121 shall be admissible in a civil suit as prima 
  7.28  facie evidence of a failure to obtain an informed consent.  If 
  7.29  requested, the court shall allow a woman to proceed using solely 
  7.30  her initials or a pseudonym and may close any proceedings in the 
  7.31  case and enter other protective orders to preserve the privacy 
  7.32  of the woman upon whom the abortion was performed; 
  7.33     (2) suspension or revocation of the license of a physician 
  7.34  or qualified person pursuant to the provisions of chapter 147, 
  7.35  148, or 148B; and 
  7.36     (3) a death by wrongful act action on behalf of the woman 
  8.1   for the death of her unborn child whether or not the unborn 
  8.2   child was viable at the time the abortion was performed, or was 
  8.3   born alive and subsequently died. 
  8.4      Sec. 11.  [145.4126] [LIMITATION OF CIVIL LIABILITY.] 
  8.5      A physician who complies with section 145.4121 may not be 
  8.6   held civilly liable for failure to obtain a patient's informed 
  8.7   consent to an abortion under section 145.4121.  All other rights 
  8.8   and remedies are preserved to the patient. 
  8.9      Sec. 12.  [145.4127] [CONSTRUCTION.] 
  8.10     Nothing in sections 145.411 to 145.4126 shall be construed 
  8.11  as creating or recognizing a right to abortion.  It is not the 
  8.12  intention of sections 145.411 to 145.4126 to make lawful an 
  8.13  abortion that is unlawful on the effective date of sections 
  8.14  145.411 to 145.4126 or which later becomes unlawful.