1     
PERINATAL HOSPICE

2     
2017 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Stephen G. Handy

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill requires that a woman receive information about perinatal hospice before an
10     abortion when the unborn child has been diagnosed with a lethal fetal anomaly.
11     Highlighted Provisions:
12          This bill:
13          ▸     defines terms;
14          ▸     requires that a woman receive information about perinatal hospice before an
15     abortion when the unborn child has been diagnosed with a lethal fetal anomaly;
16          ▸     requires the Department of Health to include, in the information the department
17     provides before an abortion, information regarding perinatal hospice; and
18          ▸     makes technical changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          76-7-301, as last amended by Laws of Utah 2010, Chapter 13
26          76-7-305, as last amended by Laws of Utah 2016, Chapter 362
27          76-7-305.5, as last amended by Laws of Utah 2016, Chapter 362

28     

29     Be it enacted by the Legislature of the state of Utah:
30          Section 1. Section 76-7-301 is amended to read:
31          76-7-301. Definitions.
32          As used in this part:
33          (1) (a) "Abortion" means:
34          (i) the intentional termination or attempted termination of human pregnancy after
35     implantation of a fertilized ovum through a medical procedure carried out by a physician or
36     through a substance used under the direction of a physician;
37          (ii) the intentional killing or attempted killing of a live unborn child through a medical
38     procedure carried out by a physician or through a substance used under the direction of a
39     physician; or
40          (iii) the intentional causing or attempted causing of a miscarriage through a medical
41     procedure carried out by a physician or through a substance used under the direction of a
42     physician.
43          (b) "Abortion" does not include:
44          (i) removal of a dead unborn child;
45          (ii) removal of an ectopic pregnancy; or
46          (iii) the killing or attempted killing of an unborn child without the consent of the
47     pregnant woman, unless:
48          (A) the killing or attempted killing is done through a medical procedure carried out by
49     a physician or through a substance used under the direction of a physician; and
50          (B) the physician is unable to obtain the consent due to a medical emergency.
51          [(5)] (2) "Hospital" means:
52          (a) a general hospital licensed by the Department of Health according to Title 26,
53     Chapter 21, Health Care Facility Licensing and Inspection Act; and
54          (b) a clinic or other medical facility to the extent that such clinic or other medical
55     facility is certified by the Department of Health as providing equipment and personnel
56     sufficient in quantity and quality to provide the same degree of safety to the pregnant woman
57     and the unborn child as would be provided for the particular medical procedures undertaken by
58     a general hospital licensed by the Department of Health.

59          (3) "Lethal fetal anomaly" means an illness, disease, or defect that:
60          (a) is diagnosed before birth;
61          (b) cannot be treated to sustain life; and
62          (c) will with reasonable certainty result in the death of the unborn child before birth or
63     within three months after the day the child is born.
64          [(2)] (4) "Medical emergency" means that condition which, on the basis of the
65     physician's good faith clinical judgment, so threatens the life of a pregnant woman as to
66     necessitate the immediate abortion of her pregnancy to avert her death, or for which a delay
67     will create serious risk of substantial and irreversible impairment of major bodily function.
68          [(3)] (5) (a) "Partial birth abortion" means an abortion in which the person performing
69     the abortion:
70          (i) deliberately and intentionally vaginally delivers a living fetus until, in the case of a
71     head first presentation, the entire fetal head is outside the body of the mother, or, in the case of
72     breech presentation, any part of the fetal trunk past the navel is outside the body of the mother,
73     for the purpose of performing an overt act that the person knows will kill the partially delivered
74     living fetus; and
75          (ii) performs the overt act, other than completion of delivery, that kills the partially
76     living fetus.
77          (b) "Partial birth abortion" does not include the dilation and evacuation procedure
78     involving dismemberment prior to removal, the suction curettage procedure, or the suction
79     aspiration procedure for abortion.
80          (6) "Perinatal hospice" means comprehensive support to the mother and her family
81     from the time of the diagnosis of a lethal fetal anomaly, through the time of the child's birth,
82     and through the postpartum period, that:
83          (a) focuses on alleviating fear and ensuring that the woman and her family experience
84     the life and death of the child in a comfortable and supportive environment; and
85          (b) may include counseling or medical care by:
86          (i) maternal-fetal medical specialists;
87          (ii) obstetricians;
88          (iii) neonatologists;
89          (iv) anesthesia specialists;

90          (v) psychiatrists, psychologists, or other mental health providers;
91          (vi) clergy;
92          (vii) social workers; or
93          (viii) specialty nurses.
94          [(4)] (7) "Physician" means:
95          (a) a medical doctor licensed to practice medicine and surgery under Title 58, Chapter
96     67, Utah Medical Practice Act;
97          (b) an osteopathic physician licensed to practice osteopathic medicine under Title 58,
98     Chapter 68, Utah Osteopathic Medical Practice Act; or
99          (c) a physician employed by the federal government who has qualifications similar to a
100     person described in Subsection [(4)] (7)(a) or (b).
101          Section 2. Section 76-7-305 is amended to read:
102          76-7-305. Informed consent requirements for abortion -- 72-hour wait mandatory
103     -- Exceptions.
104          (1) A person may not perform an abortion, unless, before performing the abortion, the
105     physician who will perform the abortion obtains a voluntary and informed written consent from
106     the woman on whom the abortion is performed, that is consistent with:
107          (a) Section 8.08 of the American Medical Association's Code of Medical Ethics,
108     Current Opinions; and
109          (b) the provisions of this section.
110          (2) Except as provided in Subsection (9), consent to an abortion is voluntary and
111     informed only if:
112          (a) at least 72 hours before the abortion, the physician who is to perform the abortion,
113     the referring physician, a physician, a registered nurse, nurse practitioner, advanced practice
114     registered nurse, certified nurse midwife, genetic counselor, or physician's assistant, in a
115     face-to-face consultation in any location in the state, orally informs the woman:
116          (i) consistent with Subsection (3)(a), of:
117          (A) the nature of the proposed abortion procedure;
118          (B) specifically how the procedure described in Subsection (2)(a)(i)(A) will affect the
119     fetus; and
120          (C) the risks and alternatives to an abortion procedure or treatment;

121          (ii) of the probable gestational age and a description of the development of the unborn
122     child at the time the abortion would be performed;
123          (iii) of the medical risks associated with carrying her child to term; [and]
124          (iv) if the abortion is to be performed on an unborn child who is at least 20 weeks
125     gestational age:
126          (A) that substantial medical evidence from studies concludes that an unborn child who
127     is at least 20 weeks gestational age may be capable of experiencing pain during an abortion
128     procedure; and
129          (B) the measures that shall be taken in accordance with Section 76-7-308.5; and
130          (v) if the unborn child has been diagnosed with a lethal fetal anomaly, that:
131          (A) perinatal hospice is available;
132          (B) perinatal hospice is an alternative to abortion; and
133          (C) the woman has the right to review, and should review, the perinatal hospice
134     information that the Department of Health provides in accordance with Subsection
135     76-7-305.5(9);
136          (b) at least 72 hours prior to the abortion the physician who is to perform the abortion,
137     the referring physician, or, as specifically delegated by either of those physicians, a physician, a
138     registered nurse, licensed practical nurse, certified nurse-midwife, advanced practice registered
139     nurse, clinical laboratory technologist, psychologist, marriage and family therapist, clinical
140     social worker, genetic counselor, or certified social worker orally, in a face-to-face consultation
141     in any location in the state, informs the pregnant woman that:
142          (i) the Department of Health, in accordance with Section 76-7-305.5, publishes printed
143     material and an informational video that:
144          (A) provides medically accurate information regarding all abortion procedures that may
145     be used;
146          (B) describes the gestational stages of an unborn child; and
147          (C) includes information regarding public and private services and agencies available
148     to assist her through pregnancy, at childbirth, and while the child is dependent, including
149     private and agency adoption alternatives;
150          (ii) the printed material and a viewing of or a copy of the informational video shall be
151     made available to her, free of charge, on the Department of Health's website;

152          (iii) medical assistance benefits may be available for prenatal care, childbirth, and
153     neonatal care, and that more detailed information on the availability of that assistance is
154     contained in the printed materials and the informational video published by the Department of
155     Health;
156          (iv) except as provided in Subsection (3)(b):
157          (A) the father of the unborn child is legally required to assist in the support of her
158     child, even if he has offered to pay for the abortion; and
159          (B) the Office of Recovery Services within the Department of Human Services will
160     assist her in collecting child support; and
161          (v) she has the right to view an ultrasound of the unborn child, at no expense to her,
162     upon her request;
163          (c) the information required to be provided to the pregnant woman under Subsection
164     (2)(a) is also provided by the physician who is to perform the abortion, in a face-to-face
165     consultation, prior to performance of the abortion, unless the attending or referring physician is
166     the individual who provides the information required under Subsection (2)(a);
167          (d) a copy of the printed materials published by the Department of Health has been
168     provided to the pregnant woman;
169          (e) the informational video, published by the Department of Health, has been provided
170     to the pregnant woman in accordance with Subsection (4); and
171          (f) the pregnant woman has certified in writing, prior to the abortion, that the
172     information required to be provided under Subsections (2)(a) through (e) was provided, in
173     accordance with the requirements of those subsections.
174          (3) (a) The alternatives required to be provided under Subsection (2)(a)(i) include:
175          (i) a description of adoption services, including private and agency adoption methods;
176     and
177          (ii) a statement that it is legal for adoptive parents to financially assist in pregnancy and
178     birth expenses.
179          (b) The information described in Subsection (2)(b)(iv) may be omitted from the
180     information required to be provided to a pregnant woman under this section if the woman is
181     pregnant as the result of rape.
182          (c) Nothing in this section shall be construed to prohibit a person described in

183     Subsection (2)(a) from, when providing the information described in Subsection (2)(a)(iv),
184     informing a woman of the person's own opinion regarding the capacity of an unborn child to
185     experience pain.
186          (4) When the informational video described in Section 76-7-305.5 is provided to a
187     pregnant woman, the person providing the information shall:
188          (a) request that the woman view the video at that time or at another specifically
189     designated time and location; or
190          (b) if the woman chooses not to view the video at a time described in Subsection (4)(a),
191     inform the woman that she can access the video on the Department of Health's website.
192          (5) When a serious medical emergency compels the performance of an abortion, the
193     physician shall inform the woman prior to the abortion, if possible, of the medical indications
194     supporting the physician's judgment that an abortion is necessary.
195          (6) If an ultrasound is performed on a woman before an abortion is performed, the
196     person who performs the ultrasound, or another qualified person, shall:
197          (a) inform the woman that the ultrasound images will be simultaneously displayed in a
198     manner to permit her to:
199          (i) view the images, if she chooses to view the images; or
200          (ii) not view the images, if she chooses not to view the images;
201          (b) simultaneously display the ultrasound images in order to permit the woman to:
202          (i) view the images, if she chooses to view the images; or
203          (ii) not view the images, if she chooses not to view the images;
204          (c) inform the woman that, if she desires, the person performing the ultrasound, or
205     another qualified person shall provide a detailed description of the ultrasound images,
206     including:
207          (i) the dimensions of the unborn child;
208          (ii) the presence of cardiac activity in the unborn child, if present and viewable; and
209          (iii) the presence of external body parts or internal organs, if present and viewable; and
210          (d) provide the detailed description described in Subsection (6)(c), if the woman
211     requests it.
212          (7) The information described in Subsections (2), (3), (4), and (6) is not required to be
213     provided to a pregnant woman under this section if the abortion is performed for a reason

214     described in:
215          (a) Subsection 76-7-302(3)(b)(i), if the treating physician and one other physician
216     concur, in writing, that the abortion is necessary to avert:
217          (i) the death of the woman on whom the abortion is performed; or
218          (ii) a serious risk of substantial and irreversible impairment of a major bodily function
219     of the woman on whom the abortion is performed; or
220          (b) Subsection 76-7-302(3)(b)(ii).
221          (8) In addition to the criminal penalties described in this part, a physician who violates
222     the provisions of this section:
223          (a) is guilty of unprofessional conduct as defined in Section 58-67-102 or 58-68-102;
224     and
225          (b) shall be subject to:
226          (i) suspension or revocation of the physician's license for the practice of medicine and
227     surgery in accordance with Section 58-67-401 or 58-68-401; and
228          (ii) administrative penalties in accordance with Section 58-67-402 or 58-68-402.
229          (9) A physician is not guilty of violating this section for failure to furnish any of the
230     information described in Subsection (2), or for failing to comply with Subsection (6), if:
231          (a) the physician can demonstrate by a preponderance of the evidence that the
232     physician reasonably believed that furnishing the information would have resulted in a severely
233     adverse effect on the physical or mental health of the pregnant woman;
234          (b) in the physician's professional judgment, the abortion was necessary to avert:
235          (i) the death of the woman on whom the abortion is performed; or
236          (ii) a serious risk of substantial and irreversible impairment of a major bodily function
237     of the woman on whom the abortion is performed;
238          (c) the pregnancy was the result of rape or rape of a child, as defined in Sections
239     76-5-402 and 76-5-402.1;
240          (d) the pregnancy was the result of incest, as defined in Subsection 76-5-406(10) and
241     Section 76-7-102; or
242          (e) at the time of the abortion, the pregnant woman was 14 years of age or younger.
243          (10) A physician who complies with the provisions of this section and Section
244     76-7-304.5 may not be held civilly liable to the physician's patient for failure to obtain

245     informed consent under Section 78B-3-406.
246          (11) (a) The Department of Health shall provide an ultrasound, in accordance with the
247     provisions of Subsection (2)(b), at no expense to the pregnant woman.
248          (b) A local health department shall refer a person who requests an ultrasound described
249     in Subsection (11)(a) to the Department of Health.
250          (12) A physician is not guilty of violating this section if:
251          (a) the physician provides the information described in Subsection (2) less than 72
252     hours before performing the abortion; and
253          (b) in the physician's professional judgment, the abortion was necessary in a case
254     where:
255          (i) a ruptured membrane, documented by the attending or referring physician, will
256     cause a serious infection; or
257          (ii) a serious infection, documented by the attending or referring physician, will cause a
258     ruptured membrane.
259          Section 3. Section 76-7-305.5 is amended to read:
260          76-7-305.5. Requirements for printed materials and informational video.
261          (1) In order to ensure that a woman's consent to an abortion is truly an informed
262     consent, the Department of Health shall, in accordance with the requirements of this section:
263          (a) publish printed materials; and
264          (b) produce an informational video.
265          (2) The printed materials and the informational video described in Subsection (1) shall:
266          (a) be scientifically accurate, comprehensible, and presented in a truthful,
267     nonmisleading manner;
268          (b) present adoption as a preferred and positive choice and alternative to abortion;
269          (c) be printed and produced in a manner that conveys the state's preference for
270     childbirth over abortion;
271          (d) state that the state prefers childbirth over abortion;
272          (e) state that it is unlawful for any person to coerce a woman to undergo an abortion;
273          (f) state that any physician who performs an abortion without obtaining the woman's
274     informed consent or without providing her a private medical consultation in accordance with
275     the requirements of this section, may be liable to her for damages in a civil action at law;

276          (g) provide information on resources and public and private services available to assist
277     a pregnant woman, financially or otherwise, during pregnancy, at childbirth, and while the
278     child is dependent, including:
279          (i) medical assistance benefits for prenatal care, childbirth, and neonatal care;
280          (ii) services and supports available under Section 35A-3-308;
281          (iii) other financial aid that may be available during an adoption; and
282          (iv) services available from public adoption agencies, private adoption agencies, and
283     private attorneys whose practice includes adoption;
284          (h) describe the adoption-related expenses that may be paid under Section 76-7-203;
285          (i) describe the persons who may pay the adoption related expenses described in
286     Subsection (2)(h);
287          (j) describe the legal responsibility of the father of a child to assist in child support,
288     even if the father has agreed to pay for an abortion;
289          (k) describe the services available through the Office of Recovery Services, within the
290     Department of Human Services, to establish and collect the support described in Subsection
291     (2)(j);
292          (l) state that private adoption is legal;
293          (m) in accordance with Subsection (3), describe the probable anatomical and
294     physiological characteristics of an unborn child at two-week gestational increments from
295     fertilization to full term, including:
296          (i) brain and heart function; and
297          (ii) the presence and development of external members and internal organs;
298          (n) describe abortion procedures used in current medical practice at the various stages
299     of growth of the unborn child, including:
300          (i) the medical risks associated with each procedure;
301          (ii) the risk related to subsequent childbearing that are associated with each procedure;
302     and
303          (iii) the consequences of each procedure to the unborn child at various stages of fetal
304     development;
305          (o) describe the possible detrimental psychological effects of abortion;
306          (p) describe the medical risks associated with carrying a child to term; and

307          (q) include relevant information on the possibility of an unborn child's survival at the
308     two-week gestational increments described in Subsection (2)(m).
309          (3) The information described in Subsection (2)(m) shall be accompanied by the
310     following for each gestational increment described in Subsection (2)(m):
311          (a) pictures or video segments that accurately represent the normal development of an
312     unborn child at that stage of development; and
313          (b) the dimensions of the fetus at that stage of development.
314          (4) The printed material and video described in Subsection (1) may include a toll-free
315     24-hour telephone number that may be called in order to obtain, orally, a list and description of
316     services, agencies, and adoption attorneys in the locality of the caller.
317          (5) In addition to the requirements described in Subsection (2), the printed material
318     described in Subsection (1)(a) shall:
319          (a) be printed in a typeface large enough to be clearly legible;
320          (b) in accordance with Subsection (6), include a geographically indexed list of public
321     and private services and agencies available to assist a woman, financially or otherwise, through
322     pregnancy, at childbirth, and while the child is dependent; [and]
323          (c) except as provided in Subsection (7), include a separate brochure that contains
324     truthful, nonmisleading information regarding:
325          (i) substantial medical evidence from studies concluding that an unborn child who is at
326     least 20 weeks gestational age may be capable of experiencing pain during an abortion
327     procedure; and
328          (ii) the measures that shall be taken in accordance with Section 76-7-308.5[.]; and
329          (d) include a separate brochure, available in both hard copy and electronically, that:
330          (i) presents perinatal hospice as the state's preferred alternative to abortion of an
331     unborn child diagnosed with a lethal fetal anomaly; and
332          (ii) includes annually updated information regarding:
333          (A) contact information for local perinatal hospice services, counseling assistance for
334     medically challenging pregnancies, and grief counseling;
335          (B) a list of websites for national perinatal hospice assistance; and
336          (C) entities that provide perinatal hospice services free of charge, and medical
337     assistance benefits that are commonly available for prenatal care, childbirth, and perinatal

338     hospice.
339          (6) The list described in Subsection (5)(b) shall include:
340          (a) private attorneys whose practice includes adoption; and
341          (b) the names, addresses, and telephone numbers of each person listed under
342     Subsection (5)(b) or (6)(a).
343          (7) A person or facility is not required to provide the information described in
344     Subsection (5)(c) to a patient or potential patient, if the abortion is to be performed:
345          (a) on an unborn child who is less than 20 weeks gestational age at the time of the
346     abortion; or
347          (b) on an unborn child who is at least 20 weeks gestational age at the time of the
348     abortion, if:
349          (i) the abortion is being performed for a reason described in Subsection
350     76-7-302(3)(b)(i) or (ii); and
351          (ii) due to a serious medical emergency, time does not permit compliance with the
352     requirement to provide the information described in Subsection (5)(c).
353          (8) In addition to the requirements described in Subsection (2), the video described in
354     Subsection (1)(b) shall:
355          (a) make reference to the list described in Subsection (5)(b); and
356          (b) show an ultrasound of the heartbeat of an unborn child at:
357          (i) four weeks from conception;
358          (ii) six to eight weeks from conception; and
359          (iii) each month after 10 weeks gestational age, up to 14 weeks gestational age.






Legislative Review Note
Office of Legislative Research and General Counsel