2004 Legislation
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SENATE BILL NO. 1294 – Abortion, informed consent

SENATE BILL NO. 1294

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S1294.................................................by HEALTH AND WELFARE
ABORTION - INFORMED CONSENT - Amends, adds to and repeals existing law to
revise the informed consent law for the performing of abortions.
                                                                        
02/09    Senate intro - 1st rdg - to printing
02/10    Rpt prt - to Health/Wel

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-seventh Legislature                 Second Regular Session - 2004
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1294
                                                                        
                              BY HEALTH AND WELFARE COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO ABORTION; AMENDING SECTION 18-604, IDAHO CODE, TO  REVISE  DEFINI-
  3        TIONS;  AMENDING  SECTION 18-605, IDAHO CODE, TO PROVIDE A CAUSE OF ACTION
  4        ARISING FROM STATUTE OR OTHERWISE TO A PREGNANT PATIENT OR IMMEDIATE  FAM-
  5        ILY  MEMBER INJURED BY THE CAUSING OR PERFORMING OF AN ABORTION ON A PREG-
  6        NANT PATIENT IN VIOLATION OF STATUTE AND  TO  PROVIDE  DAMAGES;  REPEALING
  7        SECTION  18-609,  IDAHO CODE; AMENDING CHAPTER 6, TITLE 18, IDAHO CODE, BY
  8        THE ADDITION OF A NEW SECTION 18-609, IDAHO CODE,  TO  PROVIDE  PROCEDURES
  9        WHEN  ABORTIONS  MAY BE PERFORMED AND TO PROVIDE FOR NOTICE; AND PROVIDING
 10        SEVERABILITY.
                                                                        
 11    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 12        SECTION 1.  That Section 18-604, Idaho Code, be, and the  same  is  hereby
 13    amended to read as follows:
                                                                        
 14        18-604.  DEFINITIONS. As used in this act:
 15        (1)  "Abortion"  means  the intentional termination of human pregnancy for
 16    purposes other than delivery of a viable birth to  interrupt  or  terminate  a
 17    pregnancy  by any surgical or nonsurgical procedure or to induce a miscarriage
 18    upon a patient known to be pregnant for purposes other than delivery of a live
 19    birth.
 20        (2)  "Department" means the Idaho department of health and welfare.
 21        (3)  "First trimester of pregnancy" means the first thirteen (13) weeks of
 22    a pregnancy.
 23        (34)  "Hospital" means an acute care,  general  hospital  in  this  state,
 24    licensed as provided in chapter 13, title 39, Idaho Code.
 25        (4)  "Informed  consent" means a voluntary and knowing decision to undergo
 26    a specific procedure or treatment. To be voluntary, the decision must be  made
 27    freely  after  sufficient  time  for contemplation and without coercion by any
 28    person. To be knowing, the decision must be based on the physician's  accurate
 29    and  substantially  complete  explanation of each fact pertinent to making the
 30    decision. Facts pertinent to making the decision shall  include,  but  not  be
 31    limited to:
 32        (a)  A description of any proposed treatment or procedure;
 33        (b)  Any  reasonably  foreseeable  complications  and risks to the patient
 34        from such  procedure,  including  those  related  to  future  reproductive
 35        health; and
 36        (c)  The  manner in which such procedure and its foreseeable complications
 37        and risks compare with those of each readily available alternative to such
 38        procedure, including childbirth and adoption.
 39    The physician must provide the information in terms which can be understood by
 40    the person making the decision, with consideration of age, level  of  maturity
 41    and intellectual capability.
 42        (5)  "Medical  emergency"  means  any condition which, on the basis of the
 43    physician's good faith clinical judgment, so complicates the medical condition
                                                                        
                                           2
                                                                        
  1    of a pregnant patient as to necessitate the immediate abortion  of  her  preg-
  2    nancy to avert her death or for which a delay will create serious risk of sub-
  3    stantial and irreversible impairment of a major bodily function.
  4        (56)  "Physician" means a person licensed to practice medicine and surgery
  5    or  osteopathic  medicine and surgery in this state as provided in chapter 18,
  6    title 54, Idaho Code.
  7        (7)  "Probable gestational age of the unborn child"  means  what,  in  the
  8    judgment of the physician, will with reasonable probability be the gestational
  9    age of the unborn child at the time the abortion is planned to be performed.
 10        (68)  "Second  trimester  of  pregnancy" means that portion of a pregnancy
 11    following the thirteenth week and preceding the point in time when  the  fetus
 12    becomes  viable, and there is hereby created a legal presumption that the sec-
 13    ond trimester does not end before the commencement of the twenty-fifth week of
 14    pregnancy, upon which presumption any licensed physician may proceed  in  law-
 15    fully aborting a patient pursuant to section 18-608, Idaho Code, in which case
 16    the  same  shall  be conclusive and unrebuttable in all civil or criminal pro-
 17    ceedings.
 18        (9)  "Stable internet website" means a website that, to the extent reason-
 19    ably practicable, is safeguarded from having its content altered other than by
 20    employees or contractors of the Idaho department of health and welfare  acting
 21    in their official capacities.
 22        (710) "Third  trimester  of  pregnancy"  means that portion of a pregnancy
 23    from and after the point in time when the fetus becomes viable.
 24        (811) Any reference to a viable fetus shall be construed to mean  a  fetus
 25    potentially  able  to  live  outside the mother's womb, albeit with artificial
 26    aid.
                                                                        
 27        SECTION 2.  That Section 18-605, Idaho Code, be, and the  same  is  hereby
 28    amended to read as follows:
                                                                        
 29        18-605.  UNLAWFUL ABORTIONS -- PROCUREMENT OF -- PENALTY. (1) Every person
 30    not  licensed or certified to provide health care in Idaho who, except as per-
 31    mitted by this chapter, provides, supplies or administers any  medicine,  drug
 32    or  substance  to  any  woman or uses or employs any instrument or other means
 33    whatever upon any then-pregnant woman patient with intent thereby to cause  or
 34    perform  an  abortion  shall  be  guilty of a felony and shall be fined not to
 35    exceed five thousand dollars ($5,000) and/or imprisoned in  the  state  prison
 36    for not less than two (2) and not more than five (5) years.
 37        (2)  Any  person  licensed or certified to provide health care pursuant to
 38    title 54, Idaho Code, and who, except as permitted by the provisions  of  this
 39    chapter,  provides, supplies or administers any medicine, drug or substance to
 40    any woman pregnant patient or uses or employs any instrument  or  other  means
 41    whatever  upon any then-pregnant woman patient with intent to cause or perform
 42    an abortion shall:
 43        (a)  For the first violation, be subject to professional discipline and be
 44        assessed a civil penalty of not less than one thousand  dollars  ($1,000),
 45        payable to the board granting such person's license or certification;
 46        (b)  For  the  second  violation,  have  their license or certification to
 47        practice suspended for a period of not less than six  (6)  months  and  be
 48        assessed  a  civil penalty of not less than two thousand five hundred dol-
 49        lars ($2,500), payable to the board granting such person's license or cer-
 50        tification; and
 51        (c)  For each subsequent violation, have their license or certification to
 52        practice revoked and be assessed a civil penalty of  not  less  than  five
 53        thousand  dollars  ($5,000),  payable  to the board granting such person's
                                                                        
                                           3
                                                                        
  1        license or certification.
  2        (3)  Any person who is licensed or certified to provide health care pursu-
  3    ant to title 54, Idaho Code, and who knowingly violates the provisions of this
  4    chapter is guilty of a felony punishable as set forth  in  subsection  (1)  of
  5    this  section,  separate  from and in addition to the administrative penalties
  6    set forth in subsection (2) of this section.
  7        (4)  In addition to any other cause of  action  arising  from  statute  or
  8    otherwise,  any  pregnant  patient  or immediate family member  injured by the
  9    causing or performing of an abortion on a pregnant patient in violation of any
 10    of the requirements of this chapter shall have against the person who violated
 11    the provisions of this chapter a civil cause of action to  recover  from  such
 12    person all damages sustained as a result of such violation.
                                                                        
 13        SECTION  3.  That  Section  18-609, Idaho Code, be, and the same is hereby
 14    repealed.
                                                                        
 15        SECTION 4.  That Chapter  6, Title 18, Idaho Code, be,  and  the  same  is
 16    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
 17    ignated as Section 18-609, Idaho Code, and to read as follows:
                                                                        
 18        18-609.  WHEN ABORTIONS MAY BE PERFORMED -- NOTICE. (1) No abortion  shall
 19    be performed unless:
 20        (a)  A  medical  emergency  exists for the pregnant patient so urgent that
 21        there is insufficient time for the physician to obtain the  informed  con-
 22        sent  of  the  pregnant  patient consistent with subsection (1)(b) of this
 23        section; or
 24        (b)  Prior to the abortion:
 25             (i)   The attending physician or the attending physician's agent:
 26                  1.  Confirms or verifies a positive pregnancy test  and  informs
 27                  the pregnant patient of a positive pregnancy test; and
 28                  2.  Receives  from  the  pregnant patient, on a form provided by
 29                  the department, verification, signed by  the  pregnant  patient,
 30                  that  she  received  the  materials  provided  by the department
 31                  either by:
 32                       (A)  Having received a copy of these written  materials  at
 33                       least twenty-four (24) hours before the causing or perform-
 34                       ing  of  the  abortion as evidenced by her signature on the
 35                       form provided as a part of said written materials; or
 36                       (B)  Having accessed the materials on the website described
 37                       in this section and having printed the  form  available  at
 38                       the end of said website materials at least twenty-four (24)
 39                       hours  before  the causing or performing of the abortion as
 40                       evidenced by her signature on said form. The form available
 41                       for printing on the  website  shall  include  an  automatic
 42                       notation of the date and time it is printed.
 43                  3.  Has  retained in his file, on a form provided by the depart-
 44                  ment, verification, signed by the  pregnant  patient,  that  she
 45                  received  a copy of these written materials at least twenty-four
 46                  (24) hours before the causing or performing of the abortion;
 47                  4.  Has received written informed consent for such abortion from
 48                  the pregnant patient; and
 49             (ii)  The attending physician, a referring physician, or an agent  of
 50             either  physician  has informed the pregnant patient, by telephone or
 51             in person, of the following:
 52                  1.  The name of the physician who will perform the abortion;
                                                                        
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  1                  2.  A description of the medical procedure to  be  used  in  the
  2                  abortion;
  3                  3.  The  particular  medical risk associated with the particular
  4                  abortion procedure to  be  employed  including,  when  medically
  5                  accurate,  the  risk  of infection, hemorrhage, danger to subse-
  6                  quent pregnancies and infertility;
  7                  4.  The medical risks, whether physical or psychological,  asso-
  8                  ciated with the abortion;
  9                  5.  The  medical  risks  associated  with  carrying her child to
 10                  term;
 11                  6.  The probable gestational age of the unborn child at the time
 12                  the abortion is to be performed;
 13                  7.  A description of the services available to assist a pregnant
 14                  patient through a pregnancy, at childbirth, and while the  child
 15                  is dependent, including adoption services;
 16                  8.  A  description  of  the physical characteristics of a normal
 17                  fetus, described at two (2) week intervals, beginning  with  the
 18                  fourth  week  and ending with the twenty-fourth week of develop-
 19                  ment. This  description  shall  include  information  about  the
 20                  physiological  and  anatomical  characteristics, brain and heart
 21                  functions, and the presence of  external  members  and  internal
 22                  organs during the applicable stages of development;
 23                  9.  The  pregnant  patient  shall be informed that the materials
 24                  required in subsection (4) may be accessed on  the  state  spon-
 25                  sored  internet  website  and the pregnant patient shall be pro-
 26                  vided with that website address.
 27        (c)  Within thirty (30) days after performing any abortion, the  attending
 28        physician, or the attending physician's agent, shall cause to be delivered
 29        to  the  director  of the department of health and welfare, on a form pro-
 30        vided by the department, a report signed by the attending physician,  pre-
 31        serving the pregnant patient's confidentiality, certifying that:
 32             (i)   A  medical emergency existed for the pregnant patient which was
 33             so urgent that there was insufficient time to provide  the  materials
 34             required  by  this section and providing the diagnosis underlying the
 35             medical condition resulting  in the medical emergency; or
 36             (ii)  The physician has retained in his file, on a form  provided  by
 37             the  department,  verification,  signed by the pregnant patient, that
 38             she received the materials provided by the department either by:
 39                  1.  Having received a copy of these written materials  at  least
 40                  twenty-four  (24)  hours before the causing or performing of the
 41                  abortion as evidenced by her signature on the form provided as a
 42                  part of the written materials; or
 43                  2.  Having accessed the materials on the  website  described  in
 44                  this section and having printed and signed the form available at
 45                  the  end  of  said  website  materials at least twenty-four (24)
 46                  hours before the causing or performing of the abortion. The form
 47                  available for printing on the website shall  include   an  auto-
 48                  matic  notation  of the date and time it is printed. The depart-
 49                  ment shall track both the number of persons  who  log  onto  the
 50                  website and the number of persons who print a confirmation form.
 51        (2)  The information required by this section may be provided by telephone
 52    without conducting a physical examination or tests of the pregnant patient, in
 53    which  case the information required to be provided may be based on facts sup-
 54    plied by the pregnant patient and whatever relevant information is  reasonably
 55    available  to the physician, a referring physician, or an agent of either phy-
                                                                        
                                           5
                                                                        
  1    sician. This information may not be provided by  a  tape  recording  or  other
  2    electronic  or  video presentation, but must be provided during a consultation
  3    in which the physician, a referring physician, or an agent of either physician
  4    is able to ask questions of the pregnant patient and the pregnant  patient  is
  5    able  to ask questions of the physician, a referring physician, or an agent of
  6    either physician. If a physical examination,  tests  or  the  availability  of
  7    other information  subsequently indicates, in the medical judgment of the phy-
  8    sician,  a referring physician, or an agent of either physician, a revision of
  9    the information previously supplied to  the  pregnant  patient,  that  revised
 10    information shall be communicated to the pregnant patient at any time prior to
 11    the  performance of the abortion.  Nothing in this section may be construed to
 12    preclude provision of required information in a  language  understood  by  the
 13    pregnant patient through a translator.
 14        (3)  If the pregnant patient is for any reason unable to give a valid con-
 15    sent thereto, the requirement for that pregnant patient's consent shall be met
 16    as  required  by  law  for  other  medical or surgical procedures and shall be
 17    determined in consideration of the desires, interests and welfare of the preg-
 18    nant patient.
 19        (4)  In order to provide assistance in assuring that  the  consent  to  an
 20    abortion  is truly informed consent, on or after October 1, 2004, the director
 21    of the department of health and  welfare  shall  publish  easily  comprehended
 22    printed  materials  to be made available to physicians, for which a reasonable
 23    fee for providing the materials may be charged, and shall cause to  be  avail-
 24    able  on  the state website provided for in this section, printed materials in
 25    such a way as to ensure that the information  is  easily  comprehensible   and
 26    shall contain the following:
 27        (a)  Geographically  indexed  materials  designed  to  inform the pregnant
 28        patient of public and private agencies and services available to assist  a
 29        pregnant  patient  through pregnancy, upon childbirth, and while the child
 30        is dependent, including adoption agencies, which shall include  a  compre-
 31        hensive list of the agencies available, a description of the services they
 32        offer,  and  a description of the manner, including telephone numbers,  in
 33        which they might be contacted or, at  the  option  of  the  department  of
 34        health  and  welfare,  printed materials including a toll-free twenty-four
 35        (24) hour a day telephone number which may be called  to  obtain,  orally,
 36        such  a list and description of agencies in the locality of the caller and
 37        of the services they offer;
 38        (b)  Materials designed to inform the pregnant  patient  of  the  probable
 39        anatomical  and  physiological  characteristics of the unborn child at two
 40        (2) week intervals beginning with the fourth  week  and  ending  with  the
 41        twenty-fourth  week  of  development. This shall include information about
 42        brain and heart functions, and the presence of external members and inter-
 43        nal organs during the  applicable  stages  of  development.  Any  relevant
 44        information on the possibility of the unborn child's survival and pictures
 45        or  drawings  representing  the  development of unborn children at two (2)
 46        week gestational increments shall be included, provided that any such pic-
 47        tures or drawings must contain the dimensions of the  fetus  and  must  be
 48        realistic  and  appropriate for the stage of pregnancy depicted. The mate-
 49        rials shall be objective, nonjudgmental, and designed to convey only accu-
 50        rate  scientific  information  about  the  unborn  child  at  the  various
 51        gestational  ages.  The  material  shall  contain  objective   information
 52        describing the methods of abortion procedures commonly employed, the medi-
 53        cal risks commonly associated with each such procedure, the medical risks,
 54        whether  physical  or psychological, associated with abortion, and medical
 55        risks commonly associated with carrying a child to term;
                                                                        
                                           6
                                                                        
  1        (c)  Information that the father of the unborn child is  liable to  assist
  2        in  the support of the pregnant patient's child even in instances in which
  3        the father of the unborn child has offered to pay for the abortion;
  4        (d)  A form, to be retained in the physician's file, upon which a pregnant
  5        patient shall verify, by signature, that she has received the materials at
  6        least twenty-four (24) hours before the abortion is caused  or  performed;
  7        and
  8        (e)  A  form  upon  which  a  physician, or the physician assistant, nurse
  9        practitioner, or nurse caused to be  delivered  to  the  director  of  the
 10        department  of  health and welfare a report signed by the attending physi-
 11        cian, preserving the pregnant  patient's confidentiality, certifying that:
 12             (i)   A copy of the written materials, provided  by  the  department,
 13             has  been  received by the pregnant patient at least twenty-four (24)
 14             hours prior to the performing of the abortion and that  the  pregnant
 15             patient has been made aware of the existence of the website described
 16             in this section; and
 17             (ii)  The form, signed by the pregnant patient and verifying that the
 18             pregnant  patient  has received the written materials provided by the
 19             department at least twenty-four (24) hours  before  the  abortion  is
 20             caused or performed, has been retained in the physician's file.
 21        (5)  On  and  after  October  1,  2004,  the director of the department of
 22    health and welfare shall develop and maintain a  stable  internet  website  to
 23    provide the information described in subsection (4) of this section. No infor-
 24    mation regarding the individual identity of persons who use the website  shall
 25    be  collected  or  maintained  by  the  internal  workings of the website. The
 26    department shall, however, track both the number of persons who log  onto  the
 27    website  and  the number of persons who print a confirmation form. The depart-
 28    ment of health and welfare shall monitor the website on a daily basis to  pre-
 29    vent and correct tampering.
 30        (6)  On  and  after  October  1,  2004,  the director of the department of
 31    health and welfare shall prepare a form to be used in the  reporting  required
 32    by this section.
                                                                        
 33        SECTION  5.  SEVERABILITY.  The provisions of this act are hereby declared
 34    to be severable and if any provision of this act or the  application  of  such
 35    provision  to  any  person or circumstance is declared invalid for any reason,
 36    such declaration shall not affect the validity of the  remaining  portions  of
 37    this act.

Statement of Purpose / Fiscal Impact




                    STATEMENT OF PURPOSE
                         RS 13954
                    2004 Woman's Right To Know

The purpose of this legislation is to help ensure. that a women receives 
information about fetal development, and the possible effects of an 
abortion on her health. To provide procedures when abortions may be 
performed and to provide for certain information to be made available to
anyone seeking an abortion.


                    FISCAL IMPACT 

The Department of Health & Welfare is currently in the process of updating 
the printed information that is required by existing law. The only additional 
expense to this legislation is the cost to design a web site, which is 
estimated to be approximately $25,000.00. Also, there may be a copyright fee 
to publish certain photographs on the internet. This cost is estimated to be
approximately $7000.00. There is a provision in the legislation that the 
Department of Health & Welfare may charge a reasonable fee to help offset 
these costs.



Contact
Name: Representative Janice McGeachin             332-1000
Senator Skip Brandt                               332-1000
Cornerstone Institute of Idaho                    863-7804
Right To Life Of Idaho                            962-3279


STATEMENT OF PURPOSE/FISCAL NOTE                              S 1294