1     
ABORTION PENALTY AMENDMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Angela Romero

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions relating to abortions and criminal penalties.
10     Highlighted Provisions:
11          This bill:
12          ▸     makes revisions to the relationship between the issuance of civil penalties and
13     actions that affect professional licensing status;
14          ▸     moves provisions referencing criminal status in relation to abortion;
15          ▸     removes criminal penalties related to abortion;
16          ▸     requires the Department of Health and Human Services to impose civil penalties for
17     violations of abortion-related regulations; 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          76-7-305, as last amended by Laws of Utah 2022, Chapter 181
26          76-7-310.5, as last amended by Laws of Utah 2004, Chapter 272
27          76-7-314, as last amended by Laws of Utah 2019, Chapter 208
28          76-7-314.5, as last amended by Laws of Utah 2010, Chapter 13
29          76-7a-201, as enacted by Laws of Utah 2020, Chapter 279
30     

31     Be it enacted by the Legislature of the state of Utah:
32          Section 1. Section 76-7-305 is amended to read:
33          76-7-305. Informed consent requirements for abortion -- 72-hour wait mandatory
34     -- Exceptions.
35          (1) A person may not perform an abortion, unless, before performing the abortion, the
36     physician who will perform the abortion obtains from the woman on whom the abortion is to
37     be performed a voluntary and informed written consent that is consistent with:
38          (a) Section 8.08 of the American Medical Association's Code of Medical Ethics,
39     Current Opinions; and
40          (b) the provisions of this section.
41          (2) Except as provided in Subsection [(8)] (7), consent to an abortion is voluntary and
42     informed only if, at least 72 hours before the abortion:
43          (a) a staff member of an abortion clinic or hospital, physician, registered nurse, nurse
44     practitioner, advanced practice registered nurse, certified nurse midwife, genetic counselor, or
45     physician's assistant presents the information module to the pregnant woman;
46          (b) the pregnant woman views the entire information module and presents evidence to
47     the individual described in Subsection (2)(a) that the pregnant woman viewed the entire
48     information module;
49          (c) after receiving the evidence described in Subsection (2)(b), the individual described
50     in Subsection (2)(a):
51          (i) documents that the pregnant woman viewed the entire information module;
52          (ii) gives the pregnant woman, upon her request, a copy of the documentation
53     described in Subsection (2)(c)(i); and
54          (iii) provides a copy of the statement described in Subsection (2)(c)(i) to the physician
55     who is to perform the abortion, upon request of that physician or the pregnant woman;
56          (d) after the pregnant woman views the entire information module, the physician who
57     is to perform the abortion, the referring physician, a physician, a registered nurse, nurse
58     practitioner, advanced practice registered nurse, certified nurse midwife, genetic counselor, or
59     physician's assistant, in a face-to-face consultation in any location in the state, orally informs
60     the woman of:
61          (i) the nature of the proposed abortion procedure;
62          (ii) specifically how the procedure described in Subsection (2)(d)(i) will affect the
63     fetus;
64          (iii) the risks and alternatives to the abortion procedure or treatment;
65          (iv) the options and consequences of aborting a medication-induced abortion, if the
66     proposed abortion procedure is a medication-induced abortion;
67          (v) the probable gestational age and a description of the development of the unborn
68     child at the time the abortion would be performed;
69          (vi) the medical risks associated with carrying her child to term;
70          (vii) the right to view an ultrasound of the unborn child, at no expense to the pregnant
71     woman, upon her request; and
72          (viii) when the result of a prenatal screening or diagnostic test indicates that the unborn
73     child has or may have Down syndrome, the Department of Health and Human Services website
74     containing the information described in Section 26-10-14, including the information on the
75     informational support sheet; and
76          (e) after the pregnant woman views the entire information module, a staff member of
77     the abortion clinic or hospital provides to the pregnant woman:
78          (i) on a document that the pregnant woman may take home:
79          (A) the address for the department's website described in Section 76-7-305.5; and
80          (B) a statement that the woman may request, from a staff member of the abortion clinic
81     or hospital where the woman viewed the information module, a printed copy of the material on
82     the department's website;
83          (ii) a printed copy of the material on the department's website described in Section
84     76-7-305.5, if requested by the pregnant woman; and
85          (iii) a copy of the form described in Subsection 26-21-33(3)(a)(i) regarding the
86     disposition of the aborted fetus.
87          (3) Before performing an abortion, the physician who is to perform the abortion shall:
88          (a) in a face-to-face consultation, provide the information described in Subsection
89     (2)(d), unless the attending physician or referring physician is the individual who provided the
90     information required under Subsection (2)(d); and
91          (b) (i) obtain from the pregnant woman a written certification that the information
92     required to be provided under Subsection (2) and this Subsection (3) was provided in
93     accordance with the requirements of Subsection (2) and this Subsection (3);
94          (ii) obtain a copy of the statement described in Subsection (2)(c)(i); and
95          (iii) ensure that:
96          (A) the woman has received the information described in Subsections 26-21-33(3) and
97     (4); and
98          (B) if the woman has a preference for the disposition of the aborted fetus, the woman
99     has informed the health care facility of the woman's decision regarding the disposition of the
100     aborted fetus.
101          (4) When a serious medical emergency compels the performance of an abortion, the
102     physician shall inform the woman prior to the abortion, if possible, of the medical indications
103     supporting the physician's judgment that an abortion is necessary.
104          (5) If an ultrasound is performed on a woman before an abortion is performed, the
105     individual who performs the ultrasound, or another qualified individual, shall:
106          (a) inform the woman that the ultrasound images will be simultaneously displayed in a
107     manner to permit her to:
108          (i) view the images, if she chooses to view the images; or
109          (ii) not view the images, if she chooses not to view the images;
110          (b) simultaneously display the ultrasound images in order to permit the woman to:
111          (i) view the images, if she chooses to view the images; or
112          (ii) not view the images, if she chooses not to view the images;
113          (c) inform the woman that, if she desires, the person performing the ultrasound, or
114     another qualified person shall provide a detailed description of the ultrasound images,
115     including:
116          (i) the dimensions of the unborn child;
117          (ii) the presence of cardiac activity in the unborn child, if present and viewable; and
118          (iii) the presence of external body parts or internal organs, if present and viewable; and
119          (d) provide the detailed description described in Subsection (5)(c), if the woman
120     requests it.
121          (6) The information described in Subsections (2), (3), and (5) is not required to be
122     provided to a pregnant woman under this section if the abortion is performed for a reason
123     described in:
124          (a) Subsection 76-7-302(3)(b)(i), if the treating physician and one other physician
125     concur, in writing, that the abortion is necessary to avert:
126          (i) the death of the woman on whom the abortion is performed; or
127          (ii) a serious risk of substantial and irreversible impairment of a major bodily function
128     of the woman on whom the abortion is performed; or
129          (b) Subsection 76-7-302(3)(b)(ii).
130          [(7) In addition to the criminal penalties described in this part, a physician who violates
131     the provisions of this section:]
132          [(a) is guilty of unprofessional conduct as defined in Section 58-67-102 or 58-68-102;
133     and]
134          [(b) shall be subject to:]
135          [(i) suspension or revocation of the physician's license for the practice of medicine and
136     surgery in accordance with Section 58-67-401 or 58-68-401; and]
137          [(ii) administrative penalties in accordance with Section 58-67-402 or 58-68-402.]
138          [(8)] (7) A physician is not guilty of violating this section for failure to furnish any of
139     the information described in Subsection (2) or (3), or for failing to comply with Subsection (5),
140     if:
141          (a) the physician can demonstrate by a preponderance of the evidence that the
142     physician reasonably believed that furnishing the information would have resulted in a severely
143     adverse effect on the physical or mental health of the pregnant woman;
144          (b) in the physician's professional judgment, the abortion was necessary to avert:
145          (i) the death of the woman on whom the abortion is performed; or
146          (ii) a serious risk of substantial and irreversible impairment of a major bodily function
147     of the woman on whom the abortion is performed;
148          (c) the pregnancy was the result of rape or rape of a child, as described in Sections
149     76-5-402 and 76-5-402.1;
150          (d) the pregnancy was the result of incest, as defined in Subsection 76-5-406(2)(j) and
151     Section 76-7-102; or
152          (e) at the time of the abortion, the pregnant woman was 14 years old or younger.
153          [(9)] (8) A physician who complies with the provisions of this section and Section
154     76-7-304.5 may not be held civilly liable to the physician's patient for failure to obtain
155     informed consent under Section 78B-3-406.
156          [(10)] (9) (a) The department shall provide an ultrasound, in accordance with the
157     provisions of Subsection (5)(b), at no expense to the pregnant woman.
158          (b) A local health department shall refer a pregnant woman who requests an ultrasound
159     described in Subsection [(10)(a)] (9)(a) to the department.
160          [(11)] (10) A physician is not guilty of violating this section if:
161          (a) the information described in Subsection (2) is provided less than 72 hours before
162     the physician performs the abortion; and
163          (b) in the physician's professional judgment, the abortion was necessary in a case
164     where:
165          (i) a ruptured membrane, documented by the attending or referring physician, will
166     cause a serious infection; or
167          (ii) a serious infection, documented by the attending or referring physician, will cause a
168     ruptured membrane.
169          Section 2. Section 76-7-310.5 is amended to read:
170          76-7-310.5. Prohibition of specified abortion procedures -- Viability defined --
171     Civil penalty.
172          (1) As used in this section, "saline abortion procedure" means performance of
173     amniocentesis and injection of saline into the amniotic sac within the uterine cavity.
174          (2) (a) After viability has been determined in accordance with Subsection (2)(b), no
175     person may knowingly perform a saline abortion procedure unless all other available abortion
176     procedures would pose a risk to the life or the health of the pregnant woman.
177          (b) For purposes of this section, determination of viability shall be made by the
178     physician, based upon [his] the physician's own best clinical judgment. The physician shall
179     determine whether, based on the particular facts of a woman's pregnancy that are known to
180     [him] the physician, and in light of medical technology and information reasonably available to
181     [him] the physician, there is a realistic possibility of maintaining and nourishing a life outside
182     of the womb, with or without temporary, artificial life-sustaining support.
183          (3) [Intentional] The department may impose a civil penalty of up to $750 for an
184     individual's intentional, knowing, and willful violation of this section [is a third degree felony].
185          Section 3. Section 76-7-314 is amended to read:
186          76-7-314. Civil penalties -- Licensing implications.
187          (1) [A] The department may impose a civil penalty of up to $750 for an individual's
188     willful violation of Section 76-7-307, 76-7-308, 76-7-310, 76-7-310.5, 76-7-311, or 76-7-312
189     [is a felony of the third degree].
190          (2) [A] The department may impose a civil penalty of up to $750 for an individual's
191     violation of Section 76-7-326 [is a felony of the third degree].
192          (3) [A] The department may impose a civil penalty of up to $1,000 for an individual's
193     violation of Section 76-7-302.5 or 76-7-314.5 [is a felony of the second degree].
194          (4) [A] The department may impose a civil penalty of up to $500 for an individual's
195     violation of any other provision of this part, including Subsections 76-7-305(2)(a) through (c),
196     and (e)[, is a class A misdemeanor].
197          [(5) The Department of Health shall report a physician's violation of any provision of
198     this part to the Physicians Licensing Board, described in Section 58-67-201.]
199          [(6) Any person with knowledge of a physician's violation of any provision of this part
200     may report the violation to the Physicians Licensing Board, described in Section 58-67-201.]
201          [(7) In addition to the penalties described in this section, the department may take any
202     action described in Section 26-21-11 against an abortion clinic if a violation of this chapter
203     occurs at the abortion clinic.]
204          (5) (a) The department's imposition of a civil penalty under this section may not, in and
205     of itself, adversely affect an individual's professional licensing status.
206          (b) Notwithstanding Subsection (5)(a), the department may consider the following
207     when reviewing an individual's professional licensing status:
208          (i) the individual's failure to timely pay a civil penalty imposed by the department; and
209          (ii) criminal or unprofessional conduct committed by the individual that is in addition
210     to an action resulting in the imposition of a civil penalty.
211          Section 4. Section 76-7-314.5 is amended to read:
212          76-7-314.5. Violation of provisions resulting in the death of an unborn child.
213          (1) [A person is guilty of killing an unborn child if the person] The department may
214     impose a civil penalty as provided in Section 76-7-314, on an individual that causes the death
215     of an unborn child by performing an abortion of the unborn child in violation of the provisions
216     of Subsection 76-7-302(3).
217          (2) A woman is not criminally or civilly liable for:
218          (a) seeking to obtain, or obtaining, an abortion [that is permitted by this part]; or
219          (b) a physician's failure to comply with Subsection 76-7-302(3)(b)(ii) or Section
220     76-7-305.
221          Section 5. Section 76-7a-201 is amended to read:
222          76-7a-201. Abortion prohibition -- Exceptions -- Civil penalties.
223          (1) An abortion may be performed in this state only under the following circumstances:
224          (a) the abortion is necessary to avert:
225          (i) the death of the woman on whom the abortion is performed; or
226          (ii) a serious risk of substantial and irreversible impairment of a major bodily function
227     of the woman on whom the abortion is performed;
228          (b) two physicians who practice maternal fetal medicine concur, in writing, in the
229     patient's medical record that the fetus:
230          (i) has a defect that is uniformly diagnosable and uniformly lethal; or
231          (ii) has a severe brain abnormality that is uniformly diagnosable; or
232          (c) (i) the woman is pregnant as a result of:
233          (A) rape;
234          (B) rape of a child; or
235          (C) incest; and
236          (ii) before the abortion is performed, the physician who performs the abortion:
237          (A) verifies that the incident described in Subsection (1)(c)(i) has been reported to law
238     enforcement; and
239          (B) if applicable, complies with requirements related to reporting suspicions of or
240     known child abuse.
241          (2) An abortion may be performed only:
242          (a) by a physician; and
243          (b) in an abortion clinic or a hospital, unless it is necessary to perform the abortion in
244     another location due to a medical emergency.
245          (3) [A person] The department may impose a civil penalty of up to $1,000 on an
246     individual who performs an abortion in violation of this section [is guilty of a second degree
247     felony].
248          [(4) In addition to the penalty described in Subsection (3), the department may take
249     appropriate corrective action against an abortion clinic, including revoking the abortion clinic's
250     license, if a violation of this chapter occurs at the abortion clinic.]
251          [(5) The department shall report a physician's violation of any provision of this section
252     to the state entity that regulates the licensing of a physician.]
253          (4) (a) The department's imposition of a civil penalty under this section may not, in and
254     of itself, adversely affect an individual's professional licensing status.
255          (b) Notwithstanding Subsection (4)(a) the department may consider the following
256     when reviewing an individual's professional licensing status:
257          (i) the individual's failure to timely pay a civil penalty imposed by the department; or
258          (ii) criminal or unprofessional conduct committed by the individual that is in addition
259     to an action resulting in the imposition of a civil penalty.