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S1321aa...............................................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. 02/16 Senate intro - 1st rdg - to printing 02/17 Rpt prt - to St Aff 03/01 Rpt out - to 14th Ord 03/08 Rpt out amen - to engros 03/09 Rpt engros - 1st rdg - to 2nd rdg as amen 03/10 2nd rdg - to 3rd rdg as amen 03/12 3rd rdg as amen - PASSED - 20-15-0 AYES -- Bailey, Brandt, Bunderson, Burtenshaw, Cameron, Compton, Darrington, Davis, Gannon, Geddes, Goedde, Hill, Little, Lodge, McKenzie, McWilliams, Noble, Pearce, Richardson, Williams NAYS -- Andreason(Andreason), Burkett, Calabretta, Ingram, Kennedy, Keough, Malepeai, Marley, Noh, Schroeder, Sorensen, Stegner, Stennett, Sweet, Werk Absent and excused -- None Floor Sponsor - Brandt Title apvd - to House 03/15 House intro - 1st rdg - to Health/Wel
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-seventh Legislature Second Regular Session - 2004IN THE SENATE SENATE BILL NO. 1321 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 ANY PERSON INJURED BY THE CAUSING OR 5 PERFORMING OF AN ABORTION ON A PREGNANT PATIENT IN VIOLATION OF STATUTE 6 AND TO PROVIDE DAMAGES; REPEALING SECTION 18-609, IDAHO CODE; AMENDING 7 CHAPTER 6, TITLE 18, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 18-609, 8 IDAHO CODE, TO PROVIDE PROCEDURES WHEN ABORTIONS MAY BE PERFORMED AND TO 9 PROVIDE FOR NOTICE; AND PROVIDING SEVERABILITY. 10 Be It Enacted by the Legislature of the State of Idaho: 11 SECTION 1. That Section 18-604, Idaho Code, be, and the same is hereby 12 amended to read as follows: 13 18-604. DEFINITIONS. As used in this act: 14 (1) "Abortion" meansthe intentional termination of human pregnancy for15purposes other than delivery of a viable birthto interrupt or terminate a 16 pregnancy by any surgical or nonsurgical procedure or to induce a miscarriage 17 upon a patient known to be pregnant for purposes other than delivery of a live 18 birth. 19 (2) "Department" means the Idaho department of health and welfare. 20 (3) "First trimester of pregnancy" means the first thirteen (13) weeks of 21 a pregnancy. 22 (34) "Hospital" means an acute care, general hospital in this state, 23 licensed as provided in chapter 13, title 39, Idaho Code. 24 (45) "Informed consent" means a voluntary and knowing decision to undergo 25 a specific procedure or treatment. To be voluntary, the decision must be made 26 freely after sufficient time for contemplation and without coercion by any 27 person. To be knowing, the decision must be based on the physician's accurate 28 and substantially complete explanation of each fact pertinent to making the 29 decision.Facts pertinent to making the decision shall include, but not be30limited to:31(a) A description of any proposed treatment or procedure;32(b) Any reasonably foreseeable complications and risks to the patient33from such procedure, including those related to future reproductive34health; and35(c) The manner in which such procedure and its foreseeable complications36and risks compare with those of each readily available alternative to such37procedure, including childbirth and adoption.38The physician must provide the information in terms which can be understood by39the person making the decision, with consideration of age, level of maturity40and intellectual capability.41 (6) "Medical emergency" means any condition which, on the basis of the 42 physician's good faith clinical judgment, so complicates the medical condition 43 of a pregnant patient as to necessitate the immediate abortion of her preg- 2 1 nancy to avert her death or for which a delay will create serious risk of sub- 2 stantial and irreversible impairment of a major bodily function. 3 (57) "Physician" means a person licensed to practice medicine and surgery 4 or osteopathic medicine and surgery in this state as provided in chapter 18, 5 title 54, Idaho Code. 6 (8) "Probable gestational age of the unborn child" means what, in the 7 judgment of the physician, will with reasonable probability be the gestational 8 age of the unborn child at the time the abortion is planned to be performed. 9 (69) "Second trimester of pregnancy" means that portion of a pregnancy 10 following the thirteenth week and preceding the point in time when the fetus 11 becomes viable, and there is hereby created a legal presumption that the sec- 12 ond trimester does not end before the commencement of the twenty-fifth week of 13 pregnancy, upon which presumption any licensed physician may proceed in law- 14 fully aborting a patient pursuant to section 18-608, Idaho Code, in which case 15 the same shall be conclusive and unrebuttable in all civil or criminal pro- 16 ceedings. 17 (10) "Stable internet website" means a website that, to the extent reason- 18 ably practicable, is safeguarded from having its content altered other than by 19 employees or contractors of the Idaho department of health and welfare acting 20 in their official capacities. 21 (711) "Third trimester of pregnancy" means that portion of a pregnancy 22 from and after the point in time when the fetus becomes viable. 23 (812) Any reference to a viable fetus shall be construed to mean a fetus 24 potentially able to live outside the mother's womb, albeit with artificial 25 aid. 26 SECTION 2. That Section 18-605, Idaho Code, be, and the same is hereby 27 amended to read as follows: 28 18-605. UNLAWFUL ABORTIONS -- PROCUREMENT OF -- PENALTY. (1) Every person 29 not licensed or certified to provide health care in Idaho who, except as per- 30 mitted by this chapter, provides, supplies or administers any medicine, drug 31 or substance to any woman or uses or employs any instrument or other means 32 whatever upon any then-pregnantwomanpatient with intent thereby to cause or 33 perform an abortion shall be guilty of a felony and shall be fined not to 34 exceed five thousand dollars ($5,000) and/or imprisoned in the state prison 35 for not less than two (2) and not more than five (5) years. 36 (2) Any person licensed or certified to provide health care pursuant to 37 title 54, Idaho Code, and who, except as permitted by the provisions of this 38 chapter, provides, supplies or administers any medicine, drug or substance to 39 anywomanpregnant patient or uses or employs any instrument or other means 40 whatever upon any then-pregnantwomanpatient with intent to cause or perform 41 an abortion shall: 42 (a) For the first violation, be subject to professional discipline and be 43 assessed a civil penalty of not less than one thousand dollars ($1,000), 44 payable to the board granting such person's license or certification; 45 (b) For the second violation, have their license or certification to 46 practice suspended for a period of not less than six (6) months and be 47 assessed a civil penalty of not less than two thousand five hundred dol- 48 lars ($2,500), payable to the board granting such person's license or cer- 49 tification; and 50 (c) For each subsequent violation, have their license or certification to 51 practice revoked and be assessed a civil penalty of not less than five 52 thousand dollars ($5,000), payable to the board granting such person's 53 license or certification. 3 1 (3) Any person who is licensed or certified to provide health care pursu- 2 ant to title 54, Idaho Code, and who knowingly violates the provisions of this 3 chapter is guilty of a felony punishable as set forth in subsection (1) of 4 this section, separate from and in addition to the administrative penalties 5 set forth in subsection (2) of this section. 6 (4) In addition to any other cause of action arising from statute or 7 otherwise, any person injured by the causing or performing of an abortion on a 8 pregnant patient in violation of any of the requirements of this chapter shall 9 have against the person who violated the provisions of this chapter a civil 10 cause of action to recover from such person all damages sustained as a result 11 of such violation. Receipt and retention in the physician's file of the form 12 signed by the pregnant patient as required by section 18-609(1)(b)(i)2. shall 13 constitute prima facie evidence that the physician has complied with the pro- 14 visions of section 18-609, Idaho Code. 15 SECTION 3. That Section 18-609, Idaho Code, be, and the same is hereby 16 repealed. 17 SECTION 4. That Chapter 6, Title 18, Idaho Code, be, and the same is 18 hereby amended by the addition thereto of a NEW SECTION, to be known and des- 19 ignated as Section 18-609, Idaho Code, and to read as follows: 20 18-609. WHEN ABORTIONS MAY BE PERFORMED -- NOTICE. (1) No abortion shall 21 be performed unless: 22 (a) A medical emergency exists for the pregnant patient so urgent that 23 there is insufficient time for the physician to obtain the informed con- 24 sent of the pregnant patient consistent with subsection (1)(b) of this 25 section; or 26 (b) Prior to the abortion: 27 (i) The attending physician or the attending physician's agent: 28 1. Confirms or verifies a positive pregnancy test and informs 29 the pregnant patient of a positive pregnancy test; and 30 2. Receives from the pregnant patient, on a form provided by 31 the department, verification, signed by the pregnant patient, 32 that she received the materials provided by the department 33 either by: 34 (A) Having received a copy of these written materials, 35 either from the physician who will perform the abortion, 36 that physician's agent, or from any other source including, 37 but not limited to, those listed in subsection (4) of this 38 section, at least twenty-four (24) hours before the causing 39 or performing of the abortion as evidenced by her signature 40 on the form provided as a part of said written materials; 41 or 42 (B) Having accessed the materials on the website described 43 in this section and having printed the form available at 44 the end of said website materials at least twenty-four (24) 45 hours before the causing or performing of the abortion as 46 evidenced by her signature on said form. The form available 47 for printing on the website shall include an automatic 48 notation of the date and time it is printed. 49 3. Has retained in his file, on a form provided by the depart- 50 ment, verification, signed by the pregnant patient, that she 51 received a copy of these written materials at least twenty-four 52 (24) hours before the causing or performing of the abortion; 4 1 4. Has received written informed consent for such abortion from 2 the pregnant patient; and 3 (ii) The attending physician, a referring physician, or an agent of 4 either physician has informed the pregnant patient, by telephone or 5 in person, of the following: 6 1. The name of the physician who will perform the abortion; 7 2. A description of the medical procedure to be used in the 8 abortion; 9 3. The particular medical risk associated with the particular 10 abortion procedure to be employed including, when medically 11 accurate, the risk of infection, hemorrhage, danger to subse- 12 quent pregnancies and infertility; 13 4. The medical risks, whether physical or psychological, asso- 14 ciated with the abortion; 15 5. The medical risks associated with carrying her child to 16 term; 17 6. The probable gestational age of the unborn child at the time 18 the abortion is to be performed; 19 7. A description of the services available to assist a pregnant 20 patient through a pregnancy, at childbirth, and while the child 21 is dependent, including adoption services; 22 8. A description of the physical characteristics of a normal 23 fetus, described at two (2) week intervals, beginning with the 24 fourth week and ending with the twenty-fourth week of develop- 25 ment. This description shall include information about the 26 physiological and anatomical characteristics, brain and heart 27 functions, and the presence of external members and internal 28 organs during the applicable stages of development; 29 9. The pregnant patient shall be informed that the materials 30 required in subsection (4) of this section may be accessed on 31 the state sponsored internet website and the pregnant patient 32 shall be provided with that website address. 33 (c) Within thirty (30) days after performing any abortion, the attending 34 physician, or the attending physician's agent, shall cause to be delivered 35 to the director of the department of health and welfare, on a form pro- 36 vided by the department, a report signed by the attending physician, pre- 37 serving the pregnant patient's confidentiality, certifying that: 38 (i) A medical emergency existed for the pregnant patient which was 39 so urgent that there was insufficient time to provide the materials 40 required by this section and providing the diagnosis underlying the 41 medical condition resulting in the medical emergency; or 42 (ii) The physician has retained in his file, on a form provided by 43 the department, verification, signed by the pregnant patient, that 44 she received the materials provided by the department either by: 45 1. Having received a copy of these written materials at least 46 twenty-four (24) hours before the causing or performing of the 47 abortion as evidenced by her signature on the form provided as a 48 part of the written materials; or 49 2. Having accessed the materials on the website described in 50 this section and having printed and signed the form available at 51 the end of said website materials at least twenty-four (24) 52 hours before the causing or performing of the abortion. The form 53 available for printing on the website shall include an auto- 54 matic notation of the date and time it is printed. The depart- 55 ment shall track both the number of persons who log onto the 5 1 website and the number of persons who print a confirmation form. 2 (2) The information required by this section may be provided by telephone 3 without conducting a physical examination or tests of the pregnant patient, in 4 which case the information required to be provided may be based on facts sup- 5 plied by the pregnant patient and whatever relevant information is reasonably 6 available to the physician, a referring physician, or an agent of either phy- 7 sician. This information may not be provided by a tape recording or other 8 electronic or video presentation, but must be provided during a consultation 9 in which the physician, a referring physician, or an agent of either physician 10 is able to ask questions of the pregnant patient and the pregnant patient is 11 able to ask questions of the physician, a referring physician, or an agent of 12 either physician. If a physical examination, tests or the availability of 13 other information subsequently indicates, in the medical judgment of the phy- 14 sician, a referring physician, or an agent of either physician, a revision of 15 the information previously supplied to the pregnant patient, that revised 16 information shall be communicated to the pregnant patient at any time prior to 17 the performance of the abortion. Nothing in this section may be construed to 18 preclude provision of required information in a language understood by the 19 pregnant patient through a translator. 20 (3) If the pregnant patient is for any reason unable to give a valid con- 21 sent thereto, the requirement for that pregnant patient's consent shall be met 22 as required by law for other medical or surgical procedures and shall be 23 determined in consideration of the desires, interests and welfare of the preg- 24 nant patient. 25 (4) In order to provide assistance in assuring that the consent to an 26 abortion is truly informed consent, on and after October 1, 2004, the director 27 of the department of health and welfare shall publish easily comprehended 28 printed materials to be made available to physicians as well as other easily 29 accessible locations throughout the state, including, but not limited to, pub- 30 lic health district offices and regional offices of the department of health 31 and welfare. The department shall also make these materials available on the 32 state website provided for in this section, printed in such a way as to ensure 33 that the information is easily comprehensible and shall contain the follow- 34 ing: 35 (a) Geographically indexed materials designed to inform the pregnant 36 patient of public and private agencies and services available to assist a 37 pregnant patient through pregnancy, upon childbirth, and while the child 38 is dependent, including adoption agencies, which shall include a compre- 39 hensive list of the agencies available, a description of the services they 40 offer, and a description of the manner, including telephone numbers, in 41 which they might be contacted or, at the option of the department of 42 health and welfare, printed materials including a toll-free twenty-four 43 (24) hour a day telephone number which may be called to obtain, orally, 44 such a list and description of agencies in the locality of the caller and 45 of the services they offer; 46 (b) Materials designed to inform the pregnant patient of the probable 47 anatomical and physiological characteristics of the unborn child at two 48 (2) week intervals beginning with the fourth week and ending with the 49 twenty-fourth week of development. This shall include information about 50 brain and heart functions, and the presence of external members and inter- 51 nal organs during the applicable stages of development. Any relevant 52 information on the possibility of the unborn child's survival and pictures 53 or drawings representing the development of unborn children at two (2) 54 week gestational increments shall be included, provided that any such pic- 55 tures or drawings must contain the dimensions of the fetus and must be 6 1 realistic and appropriate for the stage of pregnancy depicted. The mate- 2 rials shall be objective, nonjudgmental, and designed to convey only accu- 3 rate scientific information about the unborn child at the various 4 gestational ages. The material shall contain objective information 5 describing the methods of abortion procedures commonly employed, the medi- 6 cal risks commonly associated with each such procedure, the medical risks, 7 whether physical or psychological, associated with abortion, and medical 8 risks commonly associated with carrying a child to term; 9 (c) Information that the father of the unborn child is liable to assist 10 in the support of the pregnant patient's child even in instances in which 11 the father of the unborn child has offered to pay for the abortion; 12 (d) A form, to be retained in the physician's file, upon which a pregnant 13 patient shall verify, by signature, that she has received the materials at 14 least twenty-four (24) hours before the abortion is caused or performed; 15 and 16 (e) A form upon which a physician, or the physician assistant, nurse 17 practitioner, or nurse caused to be delivered to the director of the 18 department of health and welfare a report signed by the attending physi- 19 cian, preserving the pregnant patient's confidentiality, certifying that: 20 (i) A copy of the written materials, provided by the department, 21 has been received by the pregnant patient at least twenty-four (24) 22 hours prior to the performing of the abortion and that the pregnant 23 patient has been made aware of the existence of the website described 24 in this section; and 25 (ii) The form, signed by the pregnant patient and verifying that the 26 pregnant patient has received the written materials provided by the 27 department at least twenty-four (24) hours before the abortion is 28 caused or performed, has been retained in the physician's file. 29 (5) On and after October 1, 2004, the director of the department of 30 health and welfare shall develop and maintain a stable internet website to 31 provide the information described in subsection (4) of this section. No infor- 32 mation regarding the individual identity of persons who use the website shall 33 be collected or maintained by the internal workings of the website. The 34 department shall, however, track both the number of persons who log onto the 35 website and the number of persons who print a confirmation form. The depart- 36 ment of health and welfare shall monitor the website on a daily basis to pre- 37 vent and correct tampering. 38 (6) On and after October 1, 2004, the director of the department of 39 health and welfare shall provide a form to be used in the reporting required 40 by this section. 41 SECTION 5. SEVERABILITY. The provisions of this act are hereby declared 42 to be severable and if any provision of this act or the application of such 43 provision to any person or circumstance is declared invalid for any reason, 44 such declaration shall not affect the validity of the remaining portions of 45 this act.
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-seventh Legislature Second Regular Session - 2004Moved by Brandt Seconded by Bunderson IN THE SENATE SENATE AMENDMENTS TO S.B. NO. 1321 1 AMENDMENTS TO SECTION 1 2 On page 1 of the printed bill, delete lines 29 through 40 and insert: 3 "decision. Facts pertinent to making the decision shall include, but not be 4 limited to: 5 (a) A description of any proposed treatment or procedure; 6 (b) Any reasonably foreseeable complications and risks to the patient 7 from such procedure, including those related to future reproductive 8 health;and9 (c) The manner in which such procedure and its foreseeable complications 10 and risks compare with those of each readily available alternative to such 11 procedure, including childbirth and adoption; 12 (d) The pregnant patient's right not to have an abortion; 13 (e) The pregnant patient has been informed of the options to abortion 14 available; and 15 (f) Confirmation that the pregnant patient has received the informed con- 16 sent materials provided by the department at least twenty-four (24) hours 17 before the procedure is to be performed. 18 The physician must provide the information in terms which can be understood by 19 the person making the decision, with consideration of age, level of maturity 20 and intellectual capability."; delete lines 41 through 43; and on page 2, 21 delete lines 1 and 2 and insert: 22 "(6) (a) "Medical emergency" means a sudden and unexpected physical con- 23 dition which, in the reasonable medical judgment of any ordinarily prudent 24 physician acting under the circumstances and conditions then existing, is 25 abnormal and so complicates the medical condition of the pregnant patient 26 as to necessitate the immediate causing or performing of an abortion: 27 (i) To prevent her death; or 28 (ii) Because a delay in causing or performing an abortion will cre- 29 ate serious risk of immediate, substantial and irreversible impair- 30 ment of a major physical bodily function of the patient. 31 (b) The term "medical emergency" does not include: 32 (i) Any physical condition that would be expected to occur in nor- 33 mal pregnancies of women of similar age, physical condition and ges- 34 tation; or 35 (ii) Any condition that is predominantly psychological or psychiat- 36 ric in nature.". 37 AMENDMENTS TO SECTION 2 38 On page 3, in line 7, delete "any person" and insert: "the pregnant 39 patient or immediate family member"; and in line 12, delete "(i)2." and 40 insert: ", Idaho Code,". 41 AMENDMENTS TO SECTION 4 42 On page 3, in line 37, delete "(4)" and insert: "(3)"; in line 48, follow- 2 1 ing "printed." insert: "If compliance with this provision is obtained by the 2 pregnant patient's accessing of materials on the website, the physician is 3 required to provide the pregnant patient with a printed copy of the informa- 4 tion provided by the department prior to the performing of an abortion.". 5 On page 4, in line 30, delete "(4)" and insert: "(3)", and also in line 6 30, following "be" insert: "obtained from any public health district office or 7 regional office of the department of health and welfare or"; and following 8 line 32, insert: 9 "(iii) The physician must provide the information required in section 10 18-604(5), Idaho Code, during a face-to-face meeting with the patient 11 prior to the abortion. This face-to-face consultation with the physi- 12 cian shall not occur until after the requirements of section 13 18-609(1)(b)(i)1., Idaho Code, have been met. All physicians who use 14 ultrasound equipment in the performance of an abortion shall inform 15 the patient that she has the right to view the ultrasound image of 16 the fetus before an abortion is performed.". 17 On page 5, delete lines 2 through 19; in line 20, delete "(3)" and insert: 18 "(2)"; in line 25, delete "(4)" and insert: "(3)"; and delete lines 41 through 19 45 and insert: "which they might be contacted;". 20 On page 6, following line 11, insert: 21 "(d) Information on the availability of medical assistance benefits for 22 prenatal care, childbirth and neonatal care; 23 (e) A statement conveying that it is unlawful for any person to coerce a 24 woman to undergo an abortion; 25 (f) A statement conveying that the state of Idaho prefers childbirth over 26 abortion;"; 27 in line 12, delete "(d)" and insert: "(g)"; delete lines 16 and 17 and insert: 28 "(h) A form upon which a physician or the physician's agent caused to be 29 delivered to the director of the"; 30 following line 28, insert: 31 "(4) Every facility in which abortions are performed shall immediately 32 provide the printed informed consent materials."; 33 in line 31, delete "(4)" and insert: "(3)"; and following line 40, insert: 34 "(7) The department shall annually review the material to ensure that it 35 contains any new medical research pertinent to a pregnant patient's decision 36 on abortion and to ensure that the information about private and public agen- 37 cies is accurate and helpful. 38 (8) The department shall compile and report the following information 39 annually, preserving physician and patient confidentiality: 40 (a) The total amount of informed consent material required in this sec- 41 tion that was distributed; 42 (b) The number of women who obtained abortions in this state without 43 receiving those materials; 44 (c) Any other information pertaining to protecting the informed consent 45 of women seeking abortions. 46 (9) The department shall annually report to the health and welfare com- 47 mittees of the senate and the house of representatives of the legislature of 48 the state of Idaho, as well as the attorney general, regarding the information 49 required in subsection (7) of this section and provide a copy of the printed 50 materials to those committees. 51 (10) The department shall refer to the attorney general for further inves- 52 tigation cases of suspected violations of the provisions of this chapter.". 53 AMENDMENT TO THE BILL 54 On page 6, delete lines 41 through 45 and insert: 3 1 "SECTION 5. That Chapter 6, Title 18, Idaho Code, be, and the same is 2 hereby amended by the addition thereto of a NEW SECTION, to be known and des- 3 ignated as Section 18-613A, Idaho Code, and to read as follows: 4 18-613A. ATTORNEY GENERAL MAY ACT AS PROSECUTOR. Upon referral by the 5 department of health and welfare, the office of the attorney general shall 6 undertake any reasonable enforcement actions. The attorney general shall, in 7 every county in the state, have the same powers as the prosecuting attorney 8 thereof with respect to the investigation and prosecution of criminal actions 9 under this chapter. 10 SECTION 6. SEVERABILITY. The provisions of this act are hereby declared 11 to be severable and if any provision of this act or the application of such 12 provision to any person or circumstance is declared invalid for any reason, 13 such declaration shall not affect the validity of the remaining portions of 14 this act.". 15 CORRECTION TO TITLE 16 On page 1, in line 4, delete "ANY PERSON" and insert: "THE PREGNANT 17 PATIENT OR IMMEDIATE FAMILY MEMBER"; delete line 9 and insert: "PROVIDE FOR 18 NOTICE; AMENDING CHAPTER 6, TITLE 18, IDAHO CODE, BY THE ADDITION OF A NEW 19 SECTION 18-613A, IDAHO CODE, TO PROVIDE CIRCUMSTANCES WHEN THE ATTORNEY GEN- 20 ERAL MAY ACT AS PROSECUTOR; AND PROVIDING SEVERABILITY.".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-seventh Legislature Second Regular Session - 2004IN THE SENATE SENATE BILL NO. 1321, As Amended 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 THE PREGNANT PATIENT OR IMMEDIATE 5 FAMILY MEMBER INJURED BY THE CAUSING OR PERFORMING OF AN ABORTION ON A 6 PREGNANT 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; AMENDING CHAP- 10 TER 6, TITLE 18, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 18-613A, 11 IDAHO CODE, TO PROVIDE CIRCUMSTANCES WHEN THE ATTORNEY GENERAL MAY ACT AS 12 PROSECUTOR; AND PROVIDING SEVERABILITY. 13 Be It Enacted by the Legislature of the State of Idaho: 14 SECTION 1. That Section 18-604, Idaho Code, be, and the same is hereby 15 amended to read as follows: 16 18-604. DEFINITIONS. As used in this act: 17 (1) "Abortion" meansthe intentional termination of human pregnancy for18purposes other than delivery of a viable birthto interrupt or terminate a 19 pregnancy by any surgical or nonsurgical procedure or to induce a miscarriage 20 upon a patient known to be pregnant for purposes other than delivery of a live 21 birth. 22 (2) "Department" means the Idaho department of health and welfare. 23 (3) "First trimester of pregnancy" means the first thirteen (13) weeks of 24 a pregnancy. 25 (34) "Hospital" means an acute care, general hospital in this state, 26 licensed as provided in chapter 13, title 39, Idaho Code. 27 (45) "Informed consent" means a voluntary and knowing decision to undergo 28 a specific procedure or treatment. To be voluntary, the decision must be made 29 freely after sufficient time for contemplation and without coercion by any 30 person. To be knowing, the decision must be based on the physician's accurate 31 and substantially complete explanation of each fact pertinent to making the 32 decision. Facts pertinent to making the decision shall include, but not be 33 limited to: 34 (a) A description of any proposed treatment or procedure; 35 (b) Any reasonably foreseeable complications and risks to the patient 36 from such procedure, including those related to future reproductive 37 health;and38 (c) The manner in which such procedure and its foreseeable complications 39 and risks compare with those of each readily available alternative to such 40 procedure, including childbirth and adoption; 41 (d) The pregnant patient's right not to have an abortion; 42 (e) The pregnant patient has been informed of the options to abortion 43 available; and 2 1 (f) Confirmation that the pregnant patient has received the informed con- 2 sent materials provided by the department at least twenty-four (24) hours 3 before the procedure is to be performed. 4 The physician must provide the information in terms which can be understood by 5 the person making the decision, with consideration of age, level of maturity 6 and intellectual capability. 7 (6) (a) "Medical emergency" means a sudden and unexpected physical condi- 8 tion which, in the reasonable medical judgment of any ordinarily prudent 9 physician acting under the circumstances and conditions then existing, is 10 abnormal and so complicates the medical condition of the pregnant patient 11 as to necessitate the immediate causing or performing of an abortion: 12 (i) To prevent her death; or 13 (ii) Because a delay in causing or performing an abortion will cre- 14 ate serious risk of immediate, substantial and irreversible impair- 15 ment of a major physical bodily function of the patient. 16 (b) The term "medical emergency" does not include: 17 (i) Any physical condition that would be expected to occur in nor- 18 mal pregnancies of women of similar age, physical condition and ges- 19 tation; or 20 (ii) Any condition that is predominantly psychological or psychiat- 21 ric in nature. 22 (57) "Physician" means a person licensed to practice medicine and surgery 23 or osteopathic medicine and surgery in this state as provided in chapter 18, 24 title 54, Idaho Code. 25 (8) "Probable gestational age of the unborn child" means what, in the 26 judgment of the physician, will with reasonable probability be the gestational 27 age of the unborn child at the time the abortion is planned to be performed. 28 (69) "Second trimester of pregnancy" means that portion of a pregnancy 29 following the thirteenth week and preceding the point in time when the fetus 30 becomes viable, and there is hereby created a legal presumption that the sec- 31 ond trimester does not end before the commencement of the twenty-fifth week of 32 pregnancy, upon which presumption any licensed physician may proceed in law- 33 fully aborting a patient pursuant to section 18-608, Idaho Code, in which case 34 the same shall be conclusive and unrebuttable in all civil or criminal pro- 35 ceedings. 36 (10) "Stable internet website" means a website that, to the extent reason- 37 ably practicable, is safeguarded from having its content altered other than by 38 employees or contractors of the Idaho department of health and welfare acting 39 in their official capacities. 40 (711) "Third trimester of pregnancy" means that portion of a pregnancy 41 from and after the point in time when the fetus becomes viable. 42 (812) Any reference to a viable fetus shall be construed to mean a fetus 43 potentially able to live outside the mother's womb, albeit with artificial 44 aid. 45 SECTION 2. That Section 18-605, Idaho Code, be, and the same is hereby 46 amended to read as follows: 47 18-605. UNLAWFUL ABORTIONS -- PROCUREMENT OF -- PENALTY. (1) Every person 48 not licensed or certified to provide health care in Idaho who, except as per- 49 mitted by this chapter, provides, supplies or administers any medicine, drug 50 or substance to any woman or uses or employs any instrument or other means 51 whatever upon any then-pregnantwomanpatient with intent thereby to cause or 52 perform an abortion shall be guilty of a felony and shall be fined not to 53 exceed five thousand dollars ($5,000) and/or imprisoned in the state prison 3 1 for not less than two (2) and not more than five (5) years. 2 (2) Any person licensed or certified to provide health care pursuant to 3 title 54, Idaho Code, and who, except as permitted by the provisions of this 4 chapter, provides, supplies or administers any medicine, drug or substance to 5 anywomanpregnant patient or uses or employs any instrument or other means 6 whatever upon any then-pregnantwomanpatient with intent to cause or perform 7 an abortion shall: 8 (a) For the first violation, be subject to professional discipline and be 9 assessed a civil penalty of not less than one thousand dollars ($1,000), 10 payable to the board granting such person's license or certification; 11 (b) For the second violation, have their license or certification to 12 practice suspended for a period of not less than six (6) months and be 13 assessed a civil penalty of not less than two thousand five hundred dol- 14 lars ($2,500), payable to the board granting such person's license or cer- 15 tification; and 16 (c) For each subsequent violation, have their license or certification to 17 practice revoked and be assessed a civil penalty of not less than five 18 thousand dollars ($5,000), payable to the board granting such person's 19 license or certification. 20 (3) Any person who is licensed or certified to provide health care pursu- 21 ant to title 54, Idaho Code, and who knowingly violates the provisions of this 22 chapter is guilty of a felony punishable as set forth in subsection (1) of 23 this section, separate from and in addition to the administrative penalties 24 set forth in subsection (2) of this section. 25 (4) In addition to any other cause of action arising from statute or 26 otherwise, the pregnant patient or immediate family member injured by the 27 causing or performing of an abortion on a pregnant patient in violation of any 28 of the requirements of this chapter shall have against the person who violated 29 the provisions of this chapter a civil cause of action to recover from such 30 person all damages sustained as a result of such violation. Receipt and reten- 31 tion in the physician's file of the form signed by the pregnant patient as 32 required by section 18-609(1)(b), Idaho Code, shall constitute prima facie 33 evidence that the physician has complied with the provisions of section 34 18-609, Idaho Code. 35 SECTION 3. That Section 18-609, Idaho Code, be, and the same is hereby 36 repealed. 37 SECTION 4. That Chapter 6, Title 18, Idaho Code, be, and the same is 38 hereby amended by the addition thereto of a NEW SECTION, to be known and des- 39 ignated as Section 18-609, Idaho Code, and to read as follows: 40 18-609. WHEN ABORTIONS MAY BE PERFORMED -- NOTICE. (1) No abortion shall 41 be performed unless: 42 (a) A medical emergency exists for the pregnant patient so urgent that 43 there is insufficient time for the physician to obtain the informed con- 44 sent of the pregnant patient consistent with subsection (1)(b) of this 45 section; or 46 (b) Prior to the abortion: 47 (i) The attending physician or the attending physician's agent: 48 1. Confirms or verifies a positive pregnancy test and informs 49 the pregnant patient of a positive pregnancy test; and 50 2. Receives from the pregnant patient, on a form provided by 51 the department, verification, signed by the pregnant patient, 52 that she received the materials provided by the department 4 1 either by: 2 (A) Having received a copy of these written materials, 3 either from the physician who will perform the abortion, 4 that physician's agent, or from any other source including, 5 but not limited to, those listed in subsection (3) of this 6 section, at least twenty-four (24) hours before the causing 7 or performing of the abortion as evidenced by her signature 8 on the form provided as a part of said written materials; 9 or 10 (B) Having accessed the materials on the website described 11 in this section and having printed the form available at 12 the end of said website materials at least twenty-four (24) 13 hours before the causing or performing of the abortion as 14 evidenced by her signature on said form. The form available 15 for printing on the website shall include an automatic 16 notation of the date and time it is printed. If compliance 17 with this provision is obtained by the pregnant patient's 18 accessing of materials on the website, the physician is 19 required to provide the pregnant patient with a printed 20 copy of the information provided by the department prior to 21 the performing of an abortion. 22 3. Has retained in his file, on a form provided by the depart- 23 ment, verification, signed by the pregnant patient, that she 24 received a copy of these written materials at least twenty-four 25 (24) hours before the causing or performing of the abortion; 26 4. Has received written informed consent for such abortion from 27 the pregnant patient; and 28 (ii) The attending physician, a referring physician, or an agent of 29 either physician has informed the pregnant patient, by telephone or 30 in person, of the following: 31 1. The name of the physician who will perform the abortion; 32 2. A description of the medical procedure to be used in the 33 abortion; 34 3. The particular medical risk associated with the particular 35 abortion procedure to be employed including, when medically 36 accurate, the risk of infection, hemorrhage, danger to subse- 37 quent pregnancies and infertility; 38 4. The medical risks, whether physical or psychological, asso- 39 ciated with the abortion; 40 5. The medical risks associated with carrying her child to 41 term; 42 6. The probable gestational age of the unborn child at the time 43 the abortion is to be performed; 44 7. A description of the services available to assist a pregnant 45 patient through a pregnancy, at childbirth, and while the child 46 is dependent, including adoption services; 47 8. A description of the physical characteristics of a normal 48 fetus, described at two (2) week intervals, beginning with the 49 fourth week and ending with the twenty-fourth week of develop- 50 ment. This description shall include information about the 51 physiological and anatomical characteristics, brain and heart 52 functions, and the presence of external members and internal 53 organs during the applicable stages of development; 54 9. The pregnant patient shall be informed that the materials 55 required in subsection (3) of this section may be obtained from 5 1 any public health district office or regional office of the 2 department of health and welfare or accessed on the state spon- 3 sored internet website and the pregnant patient shall be pro- 4 vided with that website address. 5 (iii) The physician must provide the information required in section 6 18-604(5), Idaho Code, during a face-to-face meeting with the patient 7 prior to the abortion. This face-to-face consultation with the physi- 8 cian shall not occur until after the requirements of section 9 18-609(1)(b)(i)1., Idaho Code, have been met. All physicians who use 10 ultrasound equipment in the performance of an abortion shall inform 11 the patient that she has the right to view the ultrasound image of 12 the fetus before an abortion is performed. 13 (c) Within thirty (30) days after performing any abortion, the attending 14 physician, or the attending physician's agent, shall cause to be delivered 15 to the director of the department of health and welfare, on a form pro- 16 vided by the department, a report signed by the attending physician, pre- 17 serving the pregnant patient's confidentiality, certifying that: 18 (i) A medical emergency existed for the pregnant patient which was 19 so urgent that there was insufficient time to provide the materials 20 required by this section and providing the diagnosis underlying the 21 medical condition resulting in the medical emergency; or 22 (ii) The physician has retained in his file, on a form provided by 23 the department, verification, signed by the pregnant patient, that 24 she received the materials provided by the department either by: 25 1. Having received a copy of these written materials at least 26 twenty-four (24) hours before the causing or performing of the 27 abortion as evidenced by her signature on the form provided as a 28 part of the written materials; or 29 2. Having accessed the materials on the website described in 30 this section and having printed and signed the form available at 31 the end of said website materials at least twenty-four (24) 32 hours before the causing or performing of the abortion. The form 33 available for printing on the website shall include an auto- 34 matic notation of the date and time it is printed. The depart- 35 ment shall track both the number of persons who log onto the 36 website and the number of persons who print a confirmation form. 37 (2) If the pregnant patient is for any reason unable to give a valid con- 38 sent thereto, the requirement for that pregnant patient's consent shall be met 39 as required by law for other medical or surgical procedures and shall be 40 determined in consideration of the desires, interests and welfare of the preg- 41 nant patient. 42 (3) In order to provide assistance in assuring that the consent to an 43 abortion is truly informed consent, on and after October 1, 2004, the director 44 of the department of health and welfare shall publish easily comprehended 45 printed materials to be made available to physicians as well as other easily 46 accessible locations throughout the state, including, but not limited to, pub- 47 lic health district offices and regional offices of the department of health 48 and welfare. The department shall also make these materials available on the 49 state website provided for in this section, printed in such a way as to ensure 50 that the information is easily comprehensible and shall contain the follow- 51 ing: 52 (a) Geographically indexed materials designed to inform the pregnant 53 patient of public and private agencies and services available to assist a 54 pregnant patient through pregnancy, upon childbirth, and while the child 55 is dependent, including adoption agencies, which shall include a compre- 6 1 hensive list of the agencies available, a description of the services they 2 offer, and a description of the manner, including telephone numbers, in 3 which they might be contacted; 4 (b) Materials designed to inform the pregnant patient of the probable 5 anatomical and physiological characteristics of the unborn child at two 6 (2) week intervals beginning with the fourth week and ending with the 7 twenty-fourth week of development. This shall include information about 8 brain and heart functions, and the presence of external members and inter- 9 nal organs during the applicable stages of development. Any relevant 10 information on the possibility of the unborn child's survival and pictures 11 or drawings representing the development of unborn children at two (2) 12 week gestational increments shall be included, provided that any such pic- 13 tures or drawings must contain the dimensions of the fetus and must be 14 realistic and appropriate for the stage of pregnancy depicted. The mate- 15 rials shall be objective, nonjudgmental, and designed to convey only accu- 16 rate scientific information about the unborn child at the various 17 gestational ages. The material shall contain objective information 18 describing the methods of abortion procedures commonly employed, the medi- 19 cal risks commonly associated with each such procedure, the medical risks, 20 whether physical or psychological, associated with abortion, and medical 21 risks commonly associated with carrying a child to term; 22 (c) Information that the father of the unborn child is liable to assist 23 in the support of the pregnant patient's child even in instances in which 24 the father of the unborn child has offered to pay for the abortion; 25 (d) Information on the availability of medical assistance benefits for 26 prenatal care, childbirth and neonatal care; 27 (e) A statement conveying that it is unlawful for any person to coerce a 28 woman to undergo an abortion; 29 (f) A statement conveying that the state of Idaho prefers childbirth over 30 abortion; 31 (g) A form, to be retained in the physician's file, upon which a pregnant 32 patient shall verify, by signature, that she has received the materials at 33 least twenty-four (24) hours before the abortion is caused or performed; 34 and 35 (h) A form upon which a physician or the physician's agent caused to be 36 delivered to the director of the department of health and welfare a report 37 signed by the attending physician, preserving the pregnant patient's con- 38 fidentiality, certifying that: 39 (i) A copy of the written materials, provided by the department, 40 has been received by the pregnant patient at least twenty-four (24) 41 hours prior to the performing of the abortion and that the pregnant 42 patient has been made aware of the existence of the website described 43 in this section; and 44 (ii) The form, signed by the pregnant patient and verifying that the 45 pregnant patient has received the written materials provided by the 46 department at least twenty-four (24) hours before the abortion is 47 caused or performed, has been retained in the physician's file. 48 (4) Every facility in which abortions are performed shall immediately 49 provide the printed informed consent materials. 50 (5) On and after October 1, 2004, the director of the department of 51 health and welfare shall develop and maintain a stable internet website to 52 provide the information described in subsection (3) of this section. No infor- 53 mation regarding the individual identity of persons who use the website shall 54 be collected or maintained by the internal workings of the website. The 55 department shall, however, track both the number of persons who log onto the 7 1 website and the number of persons who print a confirmation form. The depart- 2 ment of health and welfare shall monitor the website on a daily basis to pre- 3 vent and correct tampering. 4 (6) On and after October 1, 2004, the director of the department of 5 health and welfare shall provide a form to be used in the reporting required 6 by this section. 7 (7) The department shall annually review the material to ensure that it 8 contains any new medical research pertinent to a pregnant patient's decision 9 on abortion and to ensure that the information about private and public agen- 10 cies is accurate and helpful. 11 (8) The department shall compile and report the following information 12 annually, preserving physician and patient confidentiality: 13 (a) The total amount of informed consent material required in this sec- 14 tion that was distributed; 15 (b) The number of women who obtained abortions in this state without 16 receiving those materials; 17 (c) Any other information pertaining to protecting the informed consent 18 of women seeking abortions. 19 (9) The department shall annually report to the health and welfare com- 20 mittees of the senate and the house of representatives of the legislature of 21 the state of Idaho, as well as the attorney general, regarding the information 22 required in subsection (7) of this section and provide a copy of the printed 23 materials to those committees. 24 (10) The department shall refer to the attorney general for further inves- 25 tigation cases of suspected violations of the provisions of this chapter. 26 SECTION 5. That Chapter 6, Title 18, Idaho Code, be, and the same is 27 hereby amended by the addition thereto of a NEW SECTION, to be known and des- 28 ignated as Section 18-613A, Idaho Code, and to read as follows: 29 18-613A. ATTORNEY GENERAL MAY ACT AS PROSECUTOR. Upon referral by the 30 department of health and welfare, the office of the attorney general shall 31 undertake any reasonable enforcement actions. The attorney general shall, in 32 every county in the state, have the same powers as the prosecuting attorney 33 thereof with respect to the investigation and prosecution of criminal actions 34 under this chapter. 35 SECTION 6. SEVERABILITY. The provisions of this act are hereby declared 36 to be severable and if any provision of this act or the application of such 37 provision to any person or circumstance is declared invalid for any reason, 38 such declaration shall not affect the validity of the remaining portions of 39 this act.
STATEMENT OF PURPOSE RS 14103 2004 Woman's Right To Know The purpose of this legislation is to help ensure that a woman 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. 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 1321