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H.B. 362 Enrolled

    

INFORMED CONSENT AMENDMENTS

    
1997 GENERAL SESSION

    
STATE OF UTAH

    
Sponsor: Robert H. M. Killpack

    AN ACT RELATING TO ABORTION; PROVIDING THAT INFORMED CONSENT
    MATERIALS CONVEY UTAH'S PREFERENCE FOR CHILDBIRTH OVER
    ABORTION; PROVIDING THAT ADOPTION BE PRESENTED AS A POSITIVE
    CHOICE; LIMITING ULTRASOUND REQUIREMENTS; AND PROVIDING AN
    EFFECTIVE DATE.
    This act affects sections of Utah Code Annotated 1953 as follows:
    AMENDS:
         76-7-305, as last amended by Chapter 5, Laws of Utah 1996, Second Special Session
         76-7-305.5, as last amended by Chapter 5, Laws of Utah 1996, Second Special Session
    Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 76-7-305 is amended to read:
         76-7-305. Informed consent requirements for abortion -- 24-hour wait mandatory
     -- Emergency exceptions.
        (1) No abortion may be performed unless a voluntary and informed written consent,
    consistent with Section 8.08 of the American Medical Association's Code of Medical Ethics,
    Current Opinions, is first obtained by the attending physician from the woman upon whom the
    abortion is to be performed. Except in the case of a medical emergency, consent to an abortion
    is voluntary and informed only if:
        (a) at least 24 hours prior to the abortion, the physician who is to perform the abortion, the
    referring physician, a registered nurse, nurse practitioner, advanced practice registered nurse,
    certified nurse midwife, or physician's assistant shall, in a face-to-face consultation, orally inform
    the woman of:
        (i) the nature of the proposed abortion procedure or treatment, specifically how that
    procedure will affect the fetus, and the risks and alternatives to an abortion procedure or treatment
    that any person would consider material to the decision of whether or not to undergo an abortion.


    The alternatives required to be provided under this subsection shall include a description of adoption
    services, including private and agency adoption methods, and a statement that it is legal for adoptive
    parents to financially assist in pregnancy and birth expenses;
        (ii) the probable gestational age and a description of the development of the unborn child
    at the time the abortion would be performed; and
        (iii) the medical risks associated with carrying her child to term;
        (b) at least 24 hours prior to the abortion the physician who is to perform the abortion, the
    referring physician, or, as specifically delegated by either of those physicians, a registered nurse,
    licensed practical nurse, certified nurse-midwife, advanced practice registered nurse, clinical
    laboratory technologist, psychologist, marriage and family therapist, clinical social worker, or
    certified social worker has orally, in a face-to-face consultation, informed the pregnant woman that:
        (i) the Department of Health, in accordance with Section 76-7-305.5, publishes printed
    material and an informational video that:
        (A) [describes the gestational stages of an unborn child and] provides [nonbiased] medically
    accurate information regarding all abortion procedures that may be used; [and]
        (B) describes the gestational stages of an unborn child; and
        [(B)] (C) includes information regarding public and private services and agencies available
    to assist her through pregnancy, at childbirth, and while the child is dependent, including private and
    agency adoption alternatives; and
        (ii) the printed material and a viewing of or a copy of the informational video shall be
    provided to her free of charge;
        (iii) medical assistance benefits may be available for prenatal care, childbirth, and neonatal
    care, and that more detailed information on the availability of that assistance is contained in the
    printed materials and the informational video published by the Department of Health;
        (iv) the father of the unborn child is legally required to assist in the support of her child, even
    in instances where he has offered to pay for the abortion, and that the Office of Recovery Services
    within the Department of Human Services will assist her in collecting child support. In the case of
    rape, this information may be omitted; and

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        (v) she has the right to view an ultrasound of the unborn child, at no expense to her, upon
    her request;
        (c) the information required to be provided to the pregnant woman under Subsection (a) is
    also provided by the physician who is to perform the abortion, in a face-to-face consultation, prior
    to performance of the abortion, unless the attending or referring physician was the individual
    providing the information under Subsection (a);
        (d) a copy of the printed materials published by the Department of Health has been provided
    to the pregnant woman;
        (e) the informational video, published by the Department of Health, has been provided to
    the pregnant woman in accordance with Subsection (2); and
        (f) the pregnant woman has certified in writing, prior to the abortion, that the information
    required to be provided under Subsections (a), (b), (c), (d), and (e) was provided, in accordance with
    the requirements of those subsections.
        (2) When the informational video is provided to a pregnant woman, the person providing
    the information shall first request that the woman view the video at that time or at another
    specifically designated time and location. If the woman chooses not to do so, a copy of the video
    shall be provided to her.
        (3) When a serious medical emergency compels the performance of an abortion, the
    physician shall inform the woman prior to the abortion, if possible, of the medical indications
    supporting his judgment that an abortion is necessary.
        (4) Any physician who violates the provisions of this section is guilty of unprofessional
    conduct as defined in Section 58-67-102 or 58-68-102, and his license for the practice of medicine
    and surgery shall be subject to suspension or revocation in accordance with Sections 58-67-401 and
    58-67-402, Utah Medical Practice Act, or Sections 58-68-401 and 58-68-402, Utah Osteopathic
    Medical Practice Act.
        (5) A physician is not guilty of violating this section for failure to furnish any of the
    information described in Subsection (1), if:
        (a) he can demonstrate by a preponderance of the evidence that he reasonably believed that

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    furnishing the information would have resulted in a severely adverse effect on the physical or mental
    health of the pregnant woman;
        (b) in his professional judgment, the abortion was necessary to save the pregnant woman's
    life;
        (c) the pregnancy was the result of rape or rape of a child, as defined in Sections 76-5-402
    and 76-5-402.1;
        (d) the pregnancy was the result of incest, as defined in Subsection 76-5-406(10) and Section
    76-7-102;
        (e) in his professional judgment the abortion was to prevent the birth of a child who would
    have been born with grave defects; or
        (f) the pregnant woman was 14 years of age or younger.
        (6) A physician who complies with the provisions of this section may not be held civilly
    liable to his patient for failure to obtain informed consent under Section 78-14-5.
        Section 2. Section 76-7-305.5 is amended to read:
         76-7-305.5. Requirements for printed materials and informational video -- Annual
     report of Department of Health.
        (1) In order to insure that a woman's consent to an abortion is truly an informed consent, the
    Department of Health shall publish printed materials and produce an informational video in
    accordance with the requirements of this section. The department and each local health department
    shall make those materials and a viewing of the video available at no cost to any person. The printed
    material and the informational video shall be comprehensible and contain all of the following:
        (a) geographically indexed materials informing the woman of public and private services
    and agencies available to assist her, financially and otherwise, through pregnancy, at childbirth, and
    while the child is dependent, including services and supports available under Section 62A-9-138.
    Those materials shall contain a description of available adoption services, including a comprehensive
    list of the names, addresses, and telephone numbers of public and private agencies and private
    attorneys whose practice includes adoption, and explanations of possible available financial aid
    during the adoption process. The information regarding adoption services shall include the fact that

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    private adoption is legal, and that the law permits adoptive parents to pay the costs of prenatal care,
    childbirth, and neonatal care. The printed information and video shall present adoption as a
    preferred and positive choice and alternative to abortion. The department may, at its option, include
    printed materials that describe the availability of a toll-free 24-hour telephone number that may be
    called in order to obtain, orally, the list and description of services, agencies, and adoption attorneys
    in the locality of the caller;
        (b) truthful and nonmisleading descriptions of the probable anatomical and physiological
    characteristics of the unborn child at two-week gestational increments from fertilization to full term,
    accompanied by pictures or video segments representing the development of an unborn child at those
    gestational increments. The descriptions shall include information about brain and heart function and
    the presence of external members and internal organs during the applicable stages of development.
    Any pictures used shall contain the dimensions of the fetus and shall be realistic and appropriate for
    that woman's stage of pregnancy. The materials shall be [objective, nonjudgmental, and] designed
    to convey [only] accurate scientific information about an unborn child at the various gestational ages,
    and to convey the state's preference for childbirth over abortion;
        (c) [objective] truthful, nonmisleading descriptions of abortion procedures used in current
    medical practice at the various stages of growth of the unborn child, the medical risks commonly
    associated with each procedure, including those related to subsequent childbearing, the consequences
    of each procedure to the fetus at various stages of fetal development, the possible detrimental
    psychological effects of abortion, and the medical risks associated with carrying a child to term;
        (d) any relevant information on the possibility of an unborn child's survival at the two-week
    gestational increments described in Subsection (b);
        (e) information on the availability of medical assistance benefits for prenatal care, childbirth,
    and neonatal care;
        (f) a statement conveying that it is unlawful for any person to coerce a woman to undergo
    an abortion;
        (g) a statement conveying that any physician who performs an abortion without obtaining
    the woman's informed consent or without according her a private medical consultation in accordance

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    with the requirements of this section, may be liable to her for damages in a civil action at law; [and]
        (h) a statement conveying that the state of Utah prefers childbirth over abortion; and
        [(h)] (i) information regarding the legal responsibility of the father to assist in child support,
    even in instances where he has agreed to pay for an abortion, including a description of the services
    available through the Office of Recovery Services, within the Department of Human Services, to
    establish and collect that support.
        (2) (a) The materials described in Subsection (1) shall be produced and printed in a way that
    conveys the state's preference for childbirth over abortion.
        (b) The printed material described in Subsection (1) shall be printed in a typeface large
    enough to be clearly legible.
        (3) Every facility in which abortions are performed shall immediately provide the printed
    informed consent materials and a viewing of or a copy of the informational video described in
    Subsection (1) to any patient or potential patient prior to the performance of an abortion, unless the
    patient's attending or referring physician certifies in writing that he reasonably believes that
    provision of the materials or video to that patient would result in a severely adverse effect on her
    physical or mental health.
        (4) The Department of Health shall produce a standardized videotape that may be used
    statewide, containing all of the information described in Subsection (1), in accordance with the
    requirements of that [section] subsection and Subsection (2). In preparing the video, the department
    may summarize and make reference to the printed comprehensive list of geographically indexed
    names and services described in Subsection (1)(a). The videotape shall, in addition to the
    information described in Subsection (1), show an ultrasound of the heart beat of an unborn child at
    three weeks gestational age, at six to eight weeks gestational age, and each month thereafter, until
    [viability] 14 weeks gestational age. That information shall be presented in [an objective, unbiased]
    a truthful, nonmisleading manner designed to convey [only] accurate scientific information, the
    state's preference for childbirth over abortion, and the positive aspects of adoption.
        (5) The Department of Health and local health departments shall provide ultrasounds in
    accordance with the provisions of Subsection 76-7-305(1)(b), at no expense to the pregnant woman.

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        (6) The Department of Health shall compile and report the following information annually,
    preserving physician and patient anonymity:
        (a) the total amount of informed consent material described in Subsection (1) that was
    distributed;
        (b) the number of women who obtained abortions in this state without receiving those
    materials;
        (c) the number of statements signed by attending physicians certifying to his opinion
    regarding adverse effects on the patient under Subsection (3); and
        (d) any other information pertaining to protecting the informed consent of women seeking
    abortions.
        (7) The Department of Health shall annually report to the Human Services Interim
    Committee regarding the information described in Subsection (6), and provide a copy of the printed
    materials and the videotape produced in accordance with this section to that committee.
        Section 3. Effective date.
        This act takes effect on September 1, 1997.

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