This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Mon, Mar 7, 2016 at 10:34 AM by lpoole.
This document includes House Committee Amendments incorporated into the bill on Wed, Mar 9, 2016 at 10:43 AM by cynthiahopkin.
This document includes House Floor Amendments incorporated into the bill on Thu, Mar 10, 2016 at 4:51 PM by cynthiahopkin.
This document includes House Floor Amendments incorporated into the bill on Thu, Mar 10, 2016 at 7:00 PM by cynthiahopkin.
1     
PROTECTING UNBORN CHILDREN AMENDMENTS

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Curtis S. Bramble

5     
House Sponsor: Keven J. Stratton

6     

7     LONG TITLE
8     General Description:
9          This bill modifies sections of the Utah Criminal Code related to Ĥ→ [adoption]
9a     abortion←Ĥ .
10     Highlighted Provisions:
11          This bill:
12          ▸     amends informed consent requirements for abortion;
13          ▸     amends provisions related to the Department of Health's requirements for
14     publishing printed materials; and
15          ▸     requires a physician who performs an abortion of an unborn child who is at least 20
16     weeks gestational age to administer an anesthetic or analgesic to eliminate or
17     alleviate organic pain to the unborn child.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          76-7-305, as last amended by Laws of Utah 2015, Chapter 258
25          76-7-305.5, as last amended by Laws of Utah 2013, Chapter 278
26          76-7-308.5, as enacted by Laws of Utah 2009, Chapter 57
27     

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 76-7-305 is amended to read:
30          76-7-305. Informed consent requirements for abortion -- 72-hour wait mandatory
31     -- Exceptions.
32          (1) A person may not perform an abortion, unless, before performing the abortion, the
33     physician who will perform the abortion obtains a voluntary and informed written consent from
34     the woman on whom the abortion is performed, that is consistent with:
35          (a) Section 8.08 of the American Medical Association's Code of Medical Ethics,
36     Current Opinions; and
37          (b) the provisions of this section.
38          (2) Except as provided in Subsection (9), consent to an abortion is voluntary and
39     informed only if:
40          (a) at least 72 hours before the abortion, the physician who is to perform the abortion,
41     the referring physician, a physician, a registered nurse, nurse practitioner, advanced practice
42     registered nurse, certified nurse midwife, genetic counselor, or physician's assistant, in a
43     face-to-face consultation in any location in the state, orally informs the woman:
44          (i) consistent with Subsection (3)(a), of:
45          (A) the nature of the proposed abortion procedure;
46          (B) specifically how the procedure described in Subsection (2)(a)(i)(A) will affect the
47     fetus; and
48          (C) the risks and alternatives to an abortion procedure or treatment;
49          (ii) of the probable gestational age and a description of the development of the unborn
50     child at the time the abortion would be performed;
51          (iii) of the medical risks associated with carrying her child to term; and
52          (iv) if the abortion is to be performed on an unborn child who is at least 20 weeks
53     gestational age:
54          [(A) that, upon the woman's request, an anesthetic or analgesic will be administered to
55     the unborn child, through the woman, to eliminate or alleviate organic pain to the unborn child
56     that may be caused by the particular method of abortion to be employed; and]
57          [(B) of any medical risks to the woman that are associated with administering the
58     anesthetic or analgesic described in Subsection (2)(a)(iv)(A);]
59          (A) that substantial medical evidence from studies concludes that an unborn child who
60     is at least 20 weeks gestational age Ĥ→ [is] may be ←Ĥ capable of experiencing pain during
60a     an abortion
61     procedure; and
62          (B) the measures that shall be taken in accordance with Section 76-7-308.5;
63          (b) at least 72 hours prior to the abortion the physician who is to perform the abortion,
64     the referring physician, or, as specifically delegated by either of those physicians, a physician, a
65     registered nurse, licensed practical nurse, certified nurse-midwife, advanced practice registered
66     nurse, clinical laboratory technologist, psychologist, marriage and family therapist, clinical
67     social worker, genetic counselor, or certified social worker orally, in a face-to-face consultation
68     in any location in the state, informs the pregnant woman that:
69          (i) the Department of Health, in accordance with Section 76-7-305.5, publishes printed
70     material and an informational video that:
71          (A) provides medically accurate information regarding all abortion procedures that may
72     be used;
73          (B) describes the gestational stages of an unborn child; and
74          (C) includes information regarding public and private services and agencies available
75     to assist her through pregnancy, at childbirth, and while the child is dependent, including
76     private and agency adoption alternatives;
77          (ii) the printed material and a viewing of or a copy of the informational video shall be
78     made available to her, free of charge, on the Department of Health's website;
79          (iii) medical assistance benefits may be available for prenatal care, childbirth, and
80     neonatal care, and that more detailed information on the availability of that assistance is
81     contained in the printed materials and the informational video published by the Department of
82     Health;
83          (iv) except as provided in Subsection (3)(b):
84          (A) the father of the unborn child is legally required to assist in the support of her
85     child, even if he has offered to pay for the abortion; and
86          (B) the Office of Recovery Services within the Department of Human Services will
87     assist her in collecting child support; and
88          (v) she has the right to view an ultrasound of the unborn child, at no expense to her,
89     upon her request;
90          (c) the information required to be provided to the pregnant woman under Subsection
91     (2)(a) is also provided by the physician who is to perform the abortion, in a face-to-face
92     consultation, prior to performance of the abortion, unless the attending or referring physician is
93     the individual who provides the information required under Subsection (2)(a);
94          (d) a copy of the printed materials published by the Department of Health has been
95     provided to the pregnant woman;
96          (e) the informational video, published by the Department of Health, has been provided
97     to the pregnant woman in accordance with Subsection (4); and
98          (f) the pregnant woman has certified in writing, prior to the abortion, that the
99     information required to be provided under Subsections (2)(a) through (e) was provided, in
100     accordance with the requirements of those subsections.
101          (3) (a) The alternatives required to be provided under Subsection (2)(a)(i) include:
102          (i) a description of adoption services, including private and agency adoption methods;
103     and
104          (ii) a statement that it is legal for adoptive parents to financially assist in pregnancy and
105     birth expenses.
106          (b) The information described in Subsection (2)(b)(iv) may be omitted from the
107     information required to be provided to a pregnant woman under this section if the woman is
108     pregnant as the result of rape.
109          (c) Nothing in this section shall be construed to prohibit a person described in
110     Subsection (2)(a) from, when providing the information described in Subsection (2)(a)(iv),
111     informing a woman of the person's own opinion regarding[: (i)] the capacity of an unborn child
112     to experience pain[;].
113          [(ii) the advisability of administering an anesthetic or analgesic to an unborn child; or]
114          [(iii) any other matter related to fetal pain.]
115          (4) When the informational video described in Section 76-7-305.5 is provided to a
116     pregnant woman, the person providing the information shall:
117          (a) request that the woman view the video at that time or at another specifically
118     designated time and location; or
119          (b) if the woman chooses not to view the video at a time described in Subsection (4)(a),
120     inform the woman that she can access the video on the Department of Health's website.
121          (5) When a serious medical emergency compels the performance of an abortion, the
122     physician shall inform the woman prior to the abortion, if possible, of the medical indications
123     supporting the physician's judgment that an abortion is necessary.
124          (6) If an ultrasound is performed on a woman before an abortion is performed, the
125     person who performs the ultrasound, or another qualified person, shall:
126          (a) inform the woman that the ultrasound images will be simultaneously displayed in a
127     manner to permit her to:
128          (i) view the images, if she chooses to view the images; or
129          (ii) not view the images, if she chooses not to view the images;
130          (b) simultaneously display the ultrasound images in order to permit the woman to:
131          (i) view the images, if she chooses to view the images; or
132          (ii) not view the images, if she chooses not to view the images;
133          (c) inform the woman that, if she desires, the person performing the ultrasound, or
134     another qualified person shall provide a detailed description of the ultrasound images,
135     including:
136          (i) the dimensions of the unborn child;
137          (ii) the presence of cardiac activity in the unborn child, if present and viewable; and
138          (iii) the presence of external body parts or internal organs, if present and viewable; and
139          (d) provide the detailed description described in Subsection (6)(c), if the woman
140     requests it.
141          (7) The information described in Subsections (2), (3), (4), and (6) is not required to be
142     provided to a pregnant woman under this section if the abortion is performed for a reason
143     described in:
144          (a) Subsection 76-7-302(3)(b)(i), if the treating physician and one other physician
145     concur, in writing, that the abortion is necessary to avert:
146          (i) the death of the woman on whom the abortion is performed; or
147          (ii) a serious risk of substantial and irreversible impairment of a major bodily function
148     of the woman on whom the abortion is performed; or
149          (b) Subsection 76-7-302(3)(b)(ii).
150          (8) In addition to the criminal penalties described in this part, a physician who violates
151     the provisions of this section:
152          (a) is guilty of unprofessional conduct as defined in Section 58-67-102 or 58-68-102;
153     and
154          (b) shall be subject to:
155          (i) suspension or revocation of the physician's license for the practice of medicine and
156     surgery in accordance with Section 58-67-401 or 58-68-401; and
157          (ii) administrative penalties in accordance with Section 58-67-402 or 58-68-402.
158          (9) A physician is not guilty of violating this section for failure to furnish any of the
159     information described in Subsection (2), or for failing to comply with Subsection (6), if:
160          (a) the physician can demonstrate by a preponderance of the evidence that the
161     physician reasonably believed that furnishing the information would have resulted in a severely
162     adverse effect on the physical or mental health of the pregnant woman;
163          (b) in the physician's professional judgment, the abortion was necessary to avert:
164          (i) the death of the woman on whom the abortion is performed; or
165          (ii) a serious risk of substantial and irreversible impairment of a major bodily function
166     of the woman on whom the abortion is performed;
167          (c) the pregnancy was the result of rape or rape of a child, as defined in Sections
168     76-5-402 and 76-5-402.1;
169          (d) the pregnancy was the result of incest, as defined in Subsection 76-5-406(10) and
170     Section 76-7-102; or
171          (e) at the time of the abortion, the pregnant woman was 14 years of age or younger.
172          (10) A physician who complies with the provisions of this section and Section
173     76-7-304.5 may not be held civilly liable to the physician's patient for failure to obtain
174     informed consent under Section 78B-3-406.
175          (11) (a) The Department of Health shall provide an ultrasound, in accordance with the
176     provisions of Subsection (2)(b), at no expense to the pregnant woman.
177          (b) A local health department shall refer a person who requests an ultrasound described
178     in Subsection (11)(a) to the Department of Health.
179          (12) A physician is not guilty of violating this section if:
180          (a) the physician provides the information described in Subsection (2) less than 72
181     hours before performing the abortion; and
182          (b) in the physician's professional judgment, the abortion was necessary in a case
183     where:
184          (i) a ruptured membrane, documented by the attending or referring physician, will
185     cause a serious infection; or
186          (ii) a serious infection, documented by the attending or referring physician, will cause a
187     ruptured membrane.
188          Section 2. Section 76-7-305.5 is amended to read:
189          76-7-305.5. Requirements for printed materials and informational video.
190          (1) In order to ensure that a woman's consent to an abortion is truly an informed
191     consent, the Department of Health shall, in accordance with the requirements of this section:
192          (a) publish printed materials; and
193          (b) produce an informational video.
194          (2) The printed materials and the informational video described in Subsection (1) shall:
195          (a) be scientifically accurate, comprehensible, and presented in a truthful,
196     nonmisleading manner;
197          (b) present adoption as a preferred and positive choice and alternative to abortion;
198          (c) be printed and produced in a manner that conveys the state's preference for
199     childbirth over abortion;
200          (d) state that the state prefers childbirth over abortion;
201          (e) state that it is unlawful for any person to coerce a woman to undergo an abortion;
202          (f) state that any physician who performs an abortion without obtaining the woman's
203     informed consent or without providing her a private medical consultation in accordance with
204     the requirements of this section, may be liable to her for damages in a civil action at law;
205          (g) provide information on resources and public and private services available to assist
206     a pregnant woman, financially or otherwise, during pregnancy, at childbirth, and while the
207     child is dependent, including:
208          (i) medical assistance benefits for prenatal care, childbirth, and neonatal care;
209          (ii) services and supports available under Section 35A-3-308;
210          (iii) other financial aid that may be available during an adoption; and
211          (iv) services available from public adoption agencies, private adoption agencies, and
212     private attorneys whose practice includes adoption;
213          (h) describe the adoption-related expenses that may be paid under Section 76-7-203;
214          (i) describe the persons who may pay the adoption related expenses described in
215     Subsection (2)(h);
216          (j) describe the legal responsibility of the father of a child to assist in child support,
217     even if the father has agreed to pay for an abortion;
218          (k) describe the services available through the Office of Recovery Services, within the
219     Department of Human Services, to establish and collect the support described in Subsection
220     (2)(j);
221          (l) state that private adoption is legal;
222          (m) in accordance with Subsection (3), describe the probable anatomical and
223     physiological characteristics of an unborn child at two-week gestational increments from
224     fertilization to full term, including:
225          (i) brain and heart function; and
226          (ii) the presence and development of external members and internal organs;
227          (n) describe abortion procedures used in current medical practice at the various stages
228     of growth of the unborn child, including:
229          (i) the medical risks associated with each procedure;
230          (ii) the risk related to subsequent childbearing that are associated with each procedure;
231     and
232          (iii) the consequences of each procedure to the unborn child at various stages of fetal
233     development;
234          (o) describe the possible detrimental psychological effects of abortion;
235          (p) describe the medical risks associated with carrying a child to term; and
236          (q) include relevant information on the possibility of an unborn child's survival at the
237     two-week gestational increments described in Subsection (2)(m).
238          (3) The information described in Subsection (2)(m) shall be accompanied by the
239     following for each gestational increment described in Subsection (2)(m):
240          (a) pictures or video segments that accurately represent the normal development of an
241     unborn child at that stage of development; and
242          (b) the dimensions of the fetus at that stage of development.
243          (4) The printed material and video described in Subsection (1) may include a toll-free
244     24-hour telephone number that may be called in order to obtain, orally, a list and description of
245     services, agencies, and adoption attorneys in the locality of the caller.
246          (5) In addition to the requirements described in Subsection (2), the printed material
247     described in Subsection (1)(a) shall:
248          (a) be printed in a typeface large enough to be clearly legible;
249          (b) in accordance with Subsection (6), include a geographically indexed list of public
250     and private services and agencies available to assist a woman, financially or otherwise, through
251     pregnancy, at childbirth, and while the child is dependent; and
252          (c) except as provided in Subsection (7), include a separate brochure that contains
253     truthful, nonmisleading information regarding:
254          [(i) the ability of an unborn child to experience pain during an abortion procedure;]
255          [(ii) the measures that may be taken, including the administration of an anesthetic or
256     analgesic to an unborn child, to alleviate or eliminate pain to an unborn child during an
257     abortion procedure;]
258          [(iii) the effectiveness and advisability of taking the measures described in Subsection
259     (5)(c)(ii); and]
260          [(iv) potential medical risks to a pregnant woman that are associated with the
261     administration of an anesthetic or analgesic to an unborn child during an abortion procedure.]
262          (i) substantial medical evidence from studies concluding that an unborn child who is at
263     least 20 weeks gestational age Ĥ→ [is] may be ←Ĥ capable of experiencing pain during an
263a     abortion procedure;
264     and
265          (ii) the measures that shall be taken in accordance with Section 76-7-308.5.
266          (6) The list described in Subsection (5)(b) shall include:
267          (a) private attorneys whose practice includes adoption; and
268          (b) the names, addresses, and telephone numbers of each person listed under
269     Subsection (5)(b) or (6)(a).
270          (7) A person or facility is not required to provide the information described in
271     Subsection (5)(c) to a patient or potential patient, if the abortion is to be performed:
272          (a) on an unborn child who is less than 20 weeks gestational age at the time of the
273     abortion; or
274          (b) on an unborn child who is at least 20 weeks gestational age at the time of the
275     abortion, if:
276          (i) the abortion is being performed for a reason described in Subsection
277     76-7-302(3)(b)(i) Ŝ→ or (ii) ←Ŝ ; and
278          (ii) due to a serious medical emergency, time does not permit compliance with the
279     requirement to provide the information described in Subsection (5)(c).
280          (8) In addition to the requirements described in Subsection (2), the video described in
281     Subsection (1)(b) shall:
282          (a) make reference to the list described in Subsection (5)(b); and
283          (b) show an ultrasound of the heartbeat of an unborn child at:
284          (i) four weeks from conception;
285          (ii) six to eight weeks from conception; and
286          (iii) each month after 10 weeks gestational age, up to 14 weeks gestational age.
287          Section 3. Section 76-7-308.5 is amended to read:
288          76-7-308.5. Administration of anesthetic or analgesic to an unborn child.
289          A physician who performs an abortion of an unborn child who is at least 20 weeks
290     gestational age shall administer an anesthetic or analgesic to eliminate or alleviate organic pain
291     to the unborn child [that may be] caused by the particular method of abortion to be employed,
292     [if the woman having the abortion consents to the administration of an anesthetic or analgesic
293     to the unborn child,] unless:
294          (1) Ŝ→ [the treating physician is prevented from administering the anesthetic or analgesic by
295     a medical emergency[.]; or] the abortion is necessary to avert:
295a          (a) the death of the woman on whom the abortion is performed; or
295b          (b) a serious risk of substantial and irreversible impairment of a major bodily function
295c     of the woman on whom the abortion is performed; Ĥ→ [Ĥ→ or ←Ĥ] ←Ĥ
295d          (2) Ĥ→ [the abortion is performed because the fetus has a defect that is uniformly
295e     diagnosable and uniformly lethal, based on the written concurrence of two physicians who
295f     practice maternal fetal medicine; or ←Ĥ ←Ŝ Ĥ→ the abortion is performed because the fetus has a
295g     defect that is uniformly diagnosable and uniformly lethal, based on the written concurrence of two
295h     physicians who practice maternal fetal medicine; or
295i          (3) ←Ĥ
296     Ĥ→ [Ŝ→ [(2)] (3) ←Ŝ] ←Ĥ the treating physician and one other physician concur, in writing,
296a     that the
297     administration of an anesthetic or analgesic would:
298          (a) cause the death of the woman on whom the abortion is performed; or
299          (b) create a serious risk of substantial Ĥ→ [and] or ←Ĥ irreversible impairment of a
299a     major bodily
300     function of the woman on whom the abortion is performed.



Legislative Review Note
Office of Legislative Research and General Counsel