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First Substitute H.B. 362

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INFORMED CONSENT AMENDMENTS

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1997 GENERAL SESSION

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STATE OF UTAH

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Sponsor: Robert H. M. Killpack

5    AN ACT RELATING TO ABORTION; PROVIDING THAT INFORMED CONSENT
6    MATERIALS CONVEY UTAH'S PREFERENCE FOR CHILDBIRTH OVER ABORTION;
7    PROVIDING THAT ADOPTION BE PRESENTED AS A POSITIVE CHOICE; LIMITING
8    ULTRASOUND REQUIREMENTS; AND PROVIDING AN EFFECTIVE DATE.
9    This act affects sections of Utah Code Annotated 1953 as follows:
10    AMENDS:
11         76-7-305, as last amended by Chapter 5, Laws of Utah 1996, Second Special Session
12         76-7-305.5, as last amended by Chapter 5, Laws of Utah 1996, Second Special Session
13    Be it enacted by the Legislature of the state of Utah:
14        Section 1. Section 76-7-305 is amended to read:
15         76-7-305. Informed consent requirements for abortion -- 24-hour wait mandatory
16     -- Emergency exceptions.
17        (1) No abortion may be performed unless a voluntary and informed written consent,
18    consistent with Section 8.08 of the American Medical Association's Code of Medical Ethics,
19    Current Opinions, is first obtained by the attending physician from the woman upon whom the
20    abortion is to be performed. Except in the case of a medical emergency, consent to an abortion
21    is voluntary and informed only if:
22        (a) at least 24 hours prior to the abortion, the physician who is to perform the abortion, the
23    referring physician, a registered nurse, nurse practitioner, advanced practice registered nurse,
24    certified nurse midwife, or physician's assistant shall, in a face-to-face consultation, orally inform
25    the woman of:
26        (i) the nature of the proposed abortion procedure or treatment, specifically how that
27    procedure will affect the fetus, and the risks and alternatives to an abortion procedure or treatment


1    that any person would consider material to the decision of whether or not to undergo an abortion.
2    The alternatives required to be provided under this subsection shall include a description of
3    adoption services, including private and agency adoption methods, and a statement that it is legal
4    for adoptive parents to financially assist in pregnancy and birth expenses;
5        (ii) the probable gestational age and a description of the development of the unborn child
6    at the time the abortion would be performed; and
7        (iii) the medical risks associated with carrying her child to term;
8        (b) at least 24 hours prior to the abortion the physician who is to perform the abortion, the
9    referring physician, or, as specifically delegated by either of those physicians, a registered nurse,
10    licensed practical nurse, certified nurse-midwife, advanced practice registered nurse, clinical
11    laboratory technologist, psychologist, marriage and family therapist, clinical social worker, or
12    certified social worker has orally, in a face-to-face consultation, informed the pregnant woman
13    that:
14        (i) the Department of Health, in accordance with Section 76-7-305.5, publishes printed
15    material and an informational video that:
16        (A) [describes the gestational stages of an unborn child and] provides [nonbiased] medially
17    accurate information regarding all abortion procedures that may be used; [and]
18        (B) describes the gestational stages of an unborn child; and
19        [(B)] (C) includes information regarding public and private services and agencies available
20    to assist her through pregnancy, at childbirth, and while the child is dependent, including private
21    and agency adoption alternatives; and
22        (ii) the printed material and a viewing of or a copy of the informational video shall be
23    provided to her free of charge;
24        (iii) medical assistance benefits may be available for prenatal care, childbirth, and neonatal
25    care, and that more detailed information on the availability of that assistance is contained in the
26    printed materials and the informational video published by the Department of Health;
27        (iv) the father of the unborn child is legally required to assist in the support of her child,
28    even in instances where he has offered to pay for the abortion, and that the Office of Recovery
29    Services within the Department of Human Services will assist her in collecting child support. In
30    the case of rape, this information may be omitted; and
31        (v) she has the right to view an ultrasound of the unborn child, at no expense to her, upon

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1    her request;
2        (c) the information required to be provided to the pregnant woman under Subsection (a)
3    is also provided by the physician who is to perform the abortion, in a face-to-face consultation,
4    prior to performance of the abortion, unless the attending or referring physician was the individual
5    providing the information under Subsection (a);
6        (d) a copy of the printed materials published by the Department of Health has been
7    provided to the pregnant woman;
8        (e) the informational video, published by the Department of Health, has been provided to
9    the pregnant woman in accordance with Subsection (2); and
10        (f) the pregnant woman has certified in writing, prior to the abortion, that the information
11    required to be provided under Subsections (a), (b), (c), (d), and (e) was provided, in accordance
12    with the requirements of those subsections.
13        (2) When the informational video is provided to a pregnant woman, the person providing
14    the information shall first request that the woman view the video at that time or at another
15    specifically designated time and location. If the woman chooses not to do so, a copy of the video
16    shall be provided to her.
17        (3) When a serious medical emergency compels the performance of an abortion, the
18    physician shall inform the woman prior to the abortion, if possible, of the medical indications
19    supporting his judgment that an abortion is necessary.
20        (4) Any physician who violates the provisions of this section is guilty of unprofessional
21    conduct as defined in Section 58-67-102 or 58-68-102, and his license for the practice of medicine
22    and surgery shall be subject to suspension or revocation in accordance with Sections 58-67-401
23    and 58-67-402, Utah Medical Practice Act, or Sections 58-68-401 and 58-68-402, Utah
24    Osteopathic Medical Practice Act.
25        (5) A physician is not guilty of violating this section for failure to furnish any of the
26    information described in Subsection (1), if:
27        (a) he can demonstrate by a preponderance of the evidence that he reasonably believed that
28    furnishing the information would have resulted in a severely adverse effect on the physical or
29    mental health of the pregnant woman;
30        (b) in his professional judgment, the abortion was necessary to save the pregnant woman's
31    life;

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1        (c) the pregnancy was the result of rape or rape of a child, as defined in Sections 76-5-402
2    and 76-5-402.1;
3        (d) the pregnancy was the result of incest, as defined in Subsection 76-5-406(10) and
4    Section 76-7-102;
5        (e) in his professional judgment the abortion was to prevent the birth of a child who would
6    have been born with grave defects; or
7        (f) the pregnant woman was 14 years of age or younger.
8        (6) A physician who complies with the provisions of this section may not be held civilly
9    liable to his patient for failure to obtain informed consent under Section 78-14-5.
10        Section 2. Section 76-7-305.5 is amended to read:
11         76-7-305.5. Requirements for printed materials and informational video -- Annual
12     report of Department of Health.
13        (1) In order to insure that a woman's consent to an abortion is truly an informed consent,
14    the Department of Health shall publish printed materials and produce an informational video in
15    accordance with the requirements of this section. The department and each local health department
16    shall make those materials and a viewing of the video available at no cost to any person. The
17    printed material and the informational video shall be comprehensible and contain all of the
18    following:
19        (a) geographically indexed materials informing the woman of public and private services
20    and agencies available to assist her, financially and otherwise, through pregnancy, at childbirth,
21    and while the child is dependent, including services and supports available under Section
22    62A-9-138. Those materials shall contain a description of available adoption services, including
23    a comprehensive list of the names, addresses, and telephone numbers of public and private
24    agencies and private attorneys whose practice includes adoption, and explanations of possible
25    available financial aid during the adoption process. The information regarding adoption services
26    shall include the fact that private adoption is legal, and that the law permits adoptive parents to pay
27    the costs of prenatal care, childbirth, and neonatal care. The printed information and video shall
28    present adoption as a preferred and positive choice and alternative to abortion. The department
29    may, at its option, include printed materials that describe the availability of a toll-free 24-hour
30    telephone number that may be called in order to obtain, orally, the list and description of services,
31    agencies, and adoption attorneys in the locality of the caller;

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1        (b) truthful and nonmisleading descriptions of the probable anatomical and physiological
2    characteristics of the unborn child at two-week gestational increments from fertilization to full
3    term, accompanied by pictures or video segments representing the development of an unborn child
4    at those gestational increments. The descriptions shall include information about brain and heart
5    function and the presence of external members and internal organs during the applicable stages of
6    development. Any pictures used shall contain the dimensions of the fetus and shall be realistic and
7    appropriate for that woman's stage of pregnancy. The materials shall be [objective,
8    nonjudgmental, and] designed to convey [only] accurate scientific information about an unborn
9    child at the various gestational ages, and to convey the state's preference for childbirth over
10    abortion;
11        (c) [objective] truthful, nonmisleading descriptions of abortion procedures used in current
12    medical practice at the various stages of growth of the unborn child, the medical risks commonly
13    associated with each procedure, including those related to subsequent childbearing, the
14    consequences of each procedure to the fetus at various stages of fetal development, the possible
15    detrimental psychological effects of abortion, and the medical risks associated with carrying a
16    child to term;
17        (d) any relevant information on the possibility of an unborn child's survival at the
18    two-week gestational increments described in Subsection (b);
19        (e) information on the availability of medical assistance benefits for prenatal care,
20    childbirth, and neonatal care;
21        (f) a statement conveying that it is unlawful for any person to coerce a woman to undergo
22    an abortion;
23        (g) a statement conveying that any physician who performs an abortion without obtaining
24    the woman's informed consent or without according her a private medical consultation in
25    accordance with the requirements of this section, may be liable to her for damages in a civil action
26    at law; [and]
27        (h) a statement conveying that the state of Utah prefers childbirth over abortion; and
28        [(h)] (i) information regarding the legal responsibility of the father to assist in child
29    support, even in instances where he has agreed to pay for an abortion, including a description of
30    the services available through the Office of Recovery Services, within the Department of Human
31    Services, to establish and collect that support.

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1        (2) (a) The materials described in Subsection (1) shall be produced and printed in a way
2    that conveys the state's preference for childbirth over abortion.
3        (b) The printed material described in Subsection (1) shall be printed in a typeface large
4    enough to be clearly legible.
5        (3) Every facility in which abortions are performed shall immediately provide the printed
6    informed consent materials and a viewing of or a copy of the informational video described in
7    Subsection (1) to any patient or potential patient prior to the performance of an abortion, unless
8    the patient's attending or referring physician certifies in writing that he reasonably believes that
9    provision of the materials or video to that patient would result in a severely adverse effect on her
10    physical or mental health.
11        (4) The Department of Health shall produce a standardized videotape that may be used
12    statewide, containing all of the information described in Subsection (1), in accordance with the
13    requirements of that [section] subsection and Subsection (2). In preparing the video, the
14    department may summarize and make reference to the printed comprehensive list of
15    geographically indexed names and services described in Subsection (1)(a). The videotape shall,
16    in addition to the information described in Subsection (1), show an ultrasound of the heart beat of
17    an unborn child at three weeks gestational age, at six to eight weeks gestational age, and each
18    month thereafter, until [viability] 14 weeks gestational age. That information shall be presented
19    in [an objective, unbiased] a truthful, nonmisleading manner designed to convey [only] accurate
20    scientific information, the state's preference for childbirth over abortion, and the positive aspects
21    of adoption.
22        (5) The Department of Health and local health departments shall provide ultrasounds in
23    accordance with the provisions of Subsection 76-7-305(1)(b), at no expense to the pregnant
24    woman.
25        (6) The Department of Health shall compile and report the following information annually,
26    preserving physician and patient anonymity:
27        (a) the total amount of informed consent material described in Subsection (1) that was
28    distributed;
29        (b) the number of women who obtained abortions in this state without receiving those
30    materials;
31        (c) the number of statements signed by attending physicians certifying to his opinion

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1    regarding adverse effects on the patient under Subsection (3); and
2        (d) any other information pertaining to protecting the informed consent of women seeking
3    abortions.
4        (7) The Department of Health shall annually report to the Human Services Interim
5    Committee regarding the information described in Subsection (6), and provide a copy of the
6    printed materials and the videotape produced in accordance with this section to that committee.
7        Section 3. Effective date.
8        This act takes effect on h [January 1, 1998 ] SEPTEMBER 1, 1997 h .




Legislative Review Note
    as of 2-14-97 3:26 PM


This bill raises the following constitutional or statutory concerns:


Constitutional rights of privacy and liberty are at issue in any abortion legislation. This legislation
is based on the opinion of the United States Supreme Court, that ". . . we [the Court] permit a state
to further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at
ensuring a decision that is mature and informed, even when in so doing the state expresses a
preference for childbirth over abortion. . . . This requirement cannot be considered a substantial
obstacle to obtaining an abortion, and, it follows, there is no undue burden." In addition, the Court
stated, "We also see no reason why the state may not require doctors to inform a woman seeking
an abortion of the availability of materials relating to the consequences to the fetus, even when
those consequences have no direct relation to her health." Planned Parenthood v. Casey, 112 S.
Ct. 2791, at 2823, 2824 (1992).

The amendment contained in Subsection 76-7-305(1)(a)(i) was not squarely addressed by the
United States Supreme Court in Casey. The Supreme Court did state, however, that " . . . it
[cannot] be doubted that most women considering an abortion would deem the impact on the fetus
relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend the
full consequences of her decision, the state furthers the legitimate purpose of reducing the risk that
a woman may elect an abortion, only to discover later, with devastating psychological
consequences, that her decision was not fully informed." Casey, at 2823.
In light of the Casey opinion, this legislation on its face appears to be within the constitutional
framework that the Supreme Court has provided for state legislatures.


Office of Legislative Research and General Counsel



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lilac-February 25, 1997


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