View Bill Status
View Bill Text
View Statement of Purpose / Fiscal Impact
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
]]]] 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;
4
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
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