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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 - 2004
IN 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" means the intentional termination of human pregnancy for
15 purposes other than delivery of a viable birth to 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 be
30 limited to:
31 (a) A description of any proposed treatment or procedure;
32 (b) Any reasonably foreseeable complications and risks to the patient
33 from such procedure, including those related to future reproductive
34 health; and
35 (c) The manner in which such procedure and its foreseeable complications
36 and risks compare with those of each readily available alternative to such
37 procedure, including childbirth and adoption.
38 The physician must provide the information in terms which can be understood by
39 the person making the decision, with consideration of age, level of maturity
40 and 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-pregnant woman patient 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 any woman pregnant patient or uses or employs any instrument or other means
40 whatever upon any then-pregnant woman patient 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 - 2004
Moved 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; and
9 (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 - 2004
IN 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" means the intentional termination of human pregnancy for
18 purposes other than delivery of a viable birth to 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; and
38 (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-pregnant woman patient 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 any woman pregnant patient or uses or employs any instrument or other means
6 whatever upon any then-pregnant woman patient 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