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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
]]]] 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 for16 purposes other than delivery of a viable birthto 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 undergo26 a specific procedure or treatment. To be voluntary, the decision must be made27 freely after sufficient time for contemplation and without coercion by any28 person. To be knowing, the decision must be based on the physician's accurate29 and substantially complete explanation of each fact pertinent to making the30 decision. Facts pertinent to making the decision shall include, but not be31 limited to:32 (a) A description of any proposed treatment or procedure;33 (b) Any reasonably foreseeable complications and risks to the patient34 from such procedure, including those related to future reproductive35 health; and36 (c) The manner in which such procedure and its foreseeable complications37 and risks compare with those of each readily available alternative to such38 procedure, including childbirth and adoption.39 The physician must provide the information in terms which can be understood by40 the person making the decision, with consideration of age, level of maturity41 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 womanpatient 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 womanpregnant patient or uses or employs any instrument or other means 41 whatever upon any then-pregnant womanpatient 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