1     
UNBORN CHILD PROTECTION AMENDMENTS

2     
2017 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Keven J. Stratton

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9           This bill amends the information that is required to be given to ensure that a woman
10     gives informed consent before the performance of an abortion procedure.
11     Highlighted Provisions:
12          This bill:
13          ▸      requires specified medical personnel to inform a woman seeking an abortion of the
14     possibility that a medication-induced abortion may be able to be reversed; and
15          ▸     requires the Department of Health to include in its published, printed materials an
16     explanation that medication-induced abortions may be able to be reversed.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     AMENDS:
23          76-7-305, as last amended by Laws of Utah 2016, Chapter 362
24          76-7-305.5, as last amended by Laws of Utah 2016, Chapter 362
25     

26     Be it enacted by the Legislature of the state of Utah:
27          Section 1. Section 76-7-305 is amended to read:

28          76-7-305. Informed consent requirements for abortion -- 72-hour wait mandatory
29     -- Exceptions.
30          (1) A person may not perform an abortion, unless, before performing the abortion, the
31     physician who will perform the abortion obtains a voluntary and informed written consent from
32     the woman on whom the abortion is performed, that is consistent with:
33          (a) Section 8.08 of the American Medical Association's Code of Medical Ethics,
34     Current Opinions; and
35          (b) the provisions of this section.
36          (2) Except as provided in Subsection (9), consent to an abortion is voluntary and
37     informed only if:
38          (a) at least 72 hours before the abortion, the physician who is to perform the abortion,
39     the referring physician, a physician, a registered nurse, nurse practitioner, advanced practice
40     registered nurse, certified nurse midwife, genetic counselor, or physician's assistant, in a
41     face-to-face consultation in any location in the state, orally informs the woman:
42          (i) consistent with Subsection (3)(a), of:
43          (A) the nature of the proposed abortion procedure;
44          (B) specifically how the procedure described in Subsection (2)(a)(i)(A) will affect the
45     fetus; [and]
46          (C) the risks and alternatives to an abortion procedure or treatment; and
47          (D) the possibility that a medication-induced abortion may be reversed, but time is of
48     the essence;
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 substantial medical evidence from studies concludes that an unborn child who
55     is at least 20 weeks gestational age may be capable of experiencing pain during an abortion
56     procedure; and
57          (B) the measures that shall be taken in accordance with Section 76-7-308.5;
58          (b) at least 72 hours prior to the abortion the physician who is to perform the abortion,

59     the referring physician, or, as specifically delegated by either of those physicians, a physician, a
60     registered nurse, licensed practical nurse, certified nurse-midwife, advanced practice registered
61     nurse, clinical laboratory technologist, psychologist, marriage and family therapist, clinical
62     social worker, genetic counselor, or certified social worker orally, in a face-to-face consultation
63     in any location in the state, informs the pregnant woman that:
64          (i) the Department of Health, in accordance with Section 76-7-305.5, publishes printed
65     material and an informational video that:
66          (A) provides medically accurate information regarding all abortion procedures that may
67     be used;
68          (B) describes the gestational stages of an unborn child; and
69          (C) includes information regarding public and private services and agencies available
70     to assist her through pregnancy, at childbirth, and while the child is dependent, including
71     private and agency adoption alternatives;
72          (ii) the printed material and a viewing of or a copy of the informational video shall be
73     made available to her, free of charge, on the Department of Health's website;
74          (iii) medical assistance benefits may be available for prenatal care, childbirth, and
75     neonatal care, and that more detailed information on the availability of that assistance is
76     contained in the printed materials and the informational video published by the Department of
77     Health;
78          (iv) except as provided in Subsection (3)(b):
79          (A) the father of the unborn child is legally required to assist in the support of her
80     child, even if he has offered to pay for the abortion; and
81          (B) the Office of Recovery Services within the Department of Human Services will
82     assist her in collecting child support; and
83          (v) she has the right to view an ultrasound of the unborn child, at no expense to her,
84     upon her request;
85          (c) the information required to be provided to the pregnant woman under Subsection
86     (2)(a) is also provided by the physician who is to perform the abortion, in a face-to-face
87     consultation, prior to performance of the abortion, unless the attending or referring physician is
88     the individual who provides the information required under Subsection (2)(a);
89          (d) a copy of the printed materials published by the Department of Health has been

90     provided to the pregnant woman;
91          (e) the informational video, published by the Department of Health, has been provided
92     to the pregnant woman in accordance with Subsection (4); and
93          (f) the pregnant woman has certified in writing, prior to the abortion, that the
94     information required to be provided under Subsections (2)(a) through (e) was provided, in
95     accordance with the requirements of those subsections.
96          (3) (a) The alternatives required to be provided under Subsection (2)(a)(i) include:
97          (i) a description of adoption services, including private and agency adoption methods;
98     and
99          (ii) a statement that it is legal for adoptive parents to financially assist in pregnancy and
100     birth expenses.
101          (b) The information described in Subsection (2)(b)(iv) may be omitted from the
102     information required to be provided to a pregnant woman under this section if the woman is
103     pregnant as the result of rape.
104          (c) Nothing in this section shall be construed to prohibit a person described in
105     Subsection (2)(a) from, when providing the information described in Subsection (2)(a)(iv),
106     informing a woman of the person's own opinion regarding the capacity of an unborn child to
107     experience pain.
108          (4) When the informational video described in Section 76-7-305.5 is provided to a
109     pregnant woman, the person providing the information shall:
110          (a) request that the woman view the video at that time or at another specifically
111     designated time and location; or
112          (b) if the woman chooses not to view the video at a time described in Subsection (4)(a),
113     inform the woman that she can access the video on the Department of Health's website.
114          (5) When a serious medical emergency compels the performance of an abortion, the
115     physician shall inform the woman prior to the abortion, if possible, of the medical indications
116     supporting the physician's judgment that an abortion is necessary.
117          (6) If an ultrasound is performed on a woman before an abortion is performed, the
118     person who performs the ultrasound, or another qualified person, shall:
119          (a) inform the woman that the ultrasound images will be simultaneously displayed in a
120     manner to permit her to:

121          (i) view the images, if she chooses to view the images; or
122          (ii) not view the images, if she chooses not to view the images;
123          (b) simultaneously display the ultrasound images in order to permit the woman to:
124          (i) view the images, if she chooses to view the images; or
125          (ii) not view the images, if she chooses not to view the images;
126          (c) inform the woman that, if she desires, the person performing the ultrasound, or
127     another qualified person shall provide a detailed description of the ultrasound images,
128     including:
129          (i) the dimensions of the unborn child;
130          (ii) the presence of cardiac activity in the unborn child, if present and viewable; and
131          (iii) the presence of external body parts or internal organs, if present and viewable; and
132          (d) provide the detailed description described in Subsection (6)(c), if the woman
133     requests it.
134          (7) The information described in Subsections (2), (3), (4), and (6) is not required to be
135     provided to a pregnant woman under this section if the abortion is performed for a reason
136     described in:
137          (a) Subsection 76-7-302(3)(b)(i), if the treating physician and one other physician
138     concur, in writing, that the abortion is necessary to avert:
139          (i) the death of the woman on whom the abortion is performed; or
140          (ii) a serious risk of substantial and irreversible impairment of a major bodily function
141     of the woman on whom the abortion is performed; or
142          (b) Subsection 76-7-302(3)(b)(ii).
143          (8) In addition to the criminal penalties described in this part, a physician who violates
144     the provisions of this section:
145          (a) is guilty of unprofessional conduct as defined in Section 58-67-102 or 58-68-102;
146     and
147          (b) shall be subject to:
148          (i) suspension or revocation of the physician's license for the practice of medicine and
149     surgery in accordance with Section 58-67-401 or 58-68-401; and
150          (ii) administrative penalties in accordance with Section 58-67-402 or 58-68-402.
151          (9) A physician is not guilty of violating this section for failure to furnish any of the

152     information described in Subsection (2), or for failing to comply with Subsection (6), if:
153          (a) the physician can demonstrate by a preponderance of the evidence that the
154     physician reasonably believed that furnishing the information would have resulted in a severely
155     adverse effect on the physical or mental health of the pregnant woman;
156          (b) in the physician's professional judgment, the abortion was necessary to avert:
157          (i) the death of the woman on whom the abortion is performed; or
158          (ii) a serious risk of substantial and irreversible impairment of a major bodily function
159     of the woman on whom the abortion is performed;
160          (c) the pregnancy was the result of rape or rape of a child, as defined in Sections
161     76-5-402 and 76-5-402.1;
162          (d) the pregnancy was the result of incest, as defined in Subsection 76-5-406(10) and
163     Section 76-7-102; or
164          (e) at the time of the abortion, the pregnant woman was 14 years of age or younger.
165          (10) A physician who complies with the provisions of this section and Section
166     76-7-304.5 may not be held civilly liable to the physician's patient for failure to obtain
167     informed consent under Section 78B-3-406.
168          (11) (a) The Department of Health shall provide an ultrasound, in accordance with the
169     provisions of Subsection (2)(b), at no expense to the pregnant woman.
170          (b) A local health department shall refer a person who requests an ultrasound described
171     in Subsection (11)(a) to the Department of Health.
172          (12) A physician is not guilty of violating this section if:
173          (a) the physician provides the information described in Subsection (2) less than 72
174     hours before performing the abortion; and
175          (b) in the physician's professional judgment, the abortion was necessary in a case
176     where:
177          (i) a ruptured membrane, documented by the attending or referring physician, will
178     cause a serious infection; or
179          (ii) a serious infection, documented by the attending or referring physician, will cause a
180     ruptured membrane.
181          Section 2. Section 76-7-305.5 is amended to read:
182          76-7-305.5. Requirements for printed materials and informational video.

183          (1) In order to ensure that a woman's consent to an abortion is truly an informed
184     consent, the Department of Health shall, in accordance with the requirements of this section:
185          (a) publish printed materials; and
186          (b) produce an informational video.
187          (2) The printed materials and the informational video described in Subsection (1) shall:
188          (a) be scientifically accurate, comprehensible, and presented in a truthful,
189     nonmisleading manner;
190          (b) present adoption as a preferred and positive choice and alternative to abortion;
191          (c) be printed and produced in a manner that conveys the state's preference for
192     childbirth over abortion;
193          (d) state that the state prefers childbirth over abortion;
194          (e) state that it is unlawful for any person to coerce a woman to undergo an abortion;
195          (f) state that any physician who performs an abortion without obtaining the woman's
196     informed consent or without providing her a private medical consultation in accordance with
197     the requirements of this section, may be liable to her for damages in a civil action at law;
198          (g) provide information on resources and public and private services available to assist
199     a pregnant woman, financially or otherwise, during pregnancy, at childbirth, and while the
200     child is dependent, including:
201          (i) medical assistance benefits for prenatal care, childbirth, and neonatal care;
202          (ii) services and supports available under Section 35A-3-308;
203          (iii) other financial aid that may be available during an adoption; and
204          (iv) services available from public adoption agencies, private adoption agencies, and
205     private attorneys whose practice includes adoption;
206          (h) describe the adoption-related expenses that may be paid under Section 76-7-203;
207          (i) describe the persons who may pay the adoption related expenses described in
208     Subsection (2)(h);
209          (j) describe the legal responsibility of the father of a child to assist in child support,
210     even if the father has agreed to pay for an abortion;
211          (k) describe the services available through the Office of Recovery Services, within the
212     Department of Human Services, to establish and collect the support described in Subsection
213     (2)(j);

214          (l) state that private adoption is legal;
215          (m) in accordance with Subsection (3), describe the probable anatomical and
216     physiological characteristics of an unborn child at two-week gestational increments from
217     fertilization to full term, including:
218          (i) brain and heart function; and
219          (ii) the presence and development of external members and internal organs;
220          (n) describe abortion procedures used in current medical practice at the various stages
221     of growth of the unborn child, including:
222          (i) the medical risks associated with each procedure;
223          (ii) the risk related to subsequent childbearing that are associated with each procedure;
224     and
225          (iii) the consequences of each procedure to the unborn child at various stages of fetal
226     development;
227          (o) describe the possible detrimental psychological effects of abortion;
228          (p) describe the medical risks associated with carrying a child to term; [and]
229          (q) include relevant information on the possibility of an unborn child's survival at the
230     two-week gestational increments described in Subsection (2)(m)[.]; and
231          (r) explain that a medication-induced abortion may be able to be reversed.
232          (3) The information described in Subsection (2)(m) shall be accompanied by the
233     following for each gestational increment described in Subsection (2)(m):
234          (a) pictures or video segments that accurately represent the normal development of an
235     unborn child at that stage of development; and
236          (b) the dimensions of the fetus at that stage of development.
237          (4) The printed material and video described in Subsection (1) may include a toll-free
238     24-hour telephone number that may be called in order to obtain, orally, a list and description of
239     services, agencies, and adoption attorneys in the locality of the caller.
240          (5) In addition to the requirements described in Subsection (2), the printed material
241     described in Subsection (1)(a) shall:
242          (a) be printed in a typeface large enough to be clearly legible;
243          (b) in accordance with Subsection (6), include a geographically indexed list of public
244     and private services and agencies available to assist a woman, financially or otherwise, through

245     pregnancy, at childbirth, and while the child is dependent; and
246          (c) except as provided in Subsection (7), include a separate brochure that contains
247     truthful, nonmisleading information regarding:
248          (i) substantial medical evidence from studies concluding that an unborn child who is at
249     least 20 weeks gestational age may be capable of experiencing pain during an abortion
250     procedure; and
251          (ii) the measures that shall be taken in accordance with Section 76-7-308.5.
252          (6) The list described in Subsection (5)(b) shall include:
253          (a) private attorneys whose practice includes adoption; and
254          (b) the names, addresses, and telephone numbers of each person listed under
255     Subsection (5)(b) or (6)(a).
256          (7) A person or facility is not required to provide the information described in
257     Subsection (5)(c) to a patient or potential patient, if the abortion is to be performed:
258          (a) on an unborn child who is less than 20 weeks gestational age at the time of the
259     abortion; or
260          (b) on an unborn child who is at least 20 weeks gestational age at the time of the
261     abortion, if:
262          (i) the abortion is being performed for a reason described in Subsection
263     76-7-302(3)(b)(i) or (ii); and
264          (ii) due to a serious medical emergency, time does not permit compliance with the
265     requirement to provide the information described in Subsection (5)(c).
266          (8) In addition to the requirements described in Subsection (2), the video described in
267     Subsection (1)(b) shall:
268          (a) make reference to the list described in Subsection (5)(b); and
269          (b) show an ultrasound of the heartbeat of an unborn child at:
270          (i) four weeks from conception;
271          (ii) six to eight weeks from conception; and
272          (iii) each month after 10 weeks gestational age, up to 14 weeks gestational age.






Legislative Review Note
Office of Legislative Research and General Counsel