Women's right to know.

WORKING DRAFT
2005
STATE OF WYOMING
05LSO-0633

HOUSE BILL
NO.
HB0276

Women's right to know.

Sponsored by:
Representative(s) Brechtel and Gingery

A BILL

for

AN ACT relating to women's health information; requiring informed consent for abortion; providing licensing, civil and criminal penalties for noncompliance as specified; providing for publication of informational materials; requiring reports to the department of health; requiring statistical reports from the department of health; granting rulemaking authority; and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1.

W.S. 35
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29
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101 through 35
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29
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108 are created to read:

CHAPTER 29
WOMEN'S RIGHT TO KNOW

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101.

Title.
This chapter shall be known and may be cited as the "Women's Right to Know Act."

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102.

Definitions.

(a)

As used in this chapter:

(i)

"
Abortion"
means the act of using or prescribing any instrument, medicine, drug or any other substance, device or means with the intent to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child. Such use, prescription or means is not an abortion if done with the intent to do one (1) or more of the following:

(A)

Save the life or preserve the health of an unborn child;

(B)

Remove a dead unborn child caused by spontaneous abortion;

(C)

Remove an ectopic pregnancy.

(ii)

"
Complication"
means a condition in association with a pregnancy including but not limited to hemorrhage, infection, uterine perforation, cervical laceration, pelvic inflammatory disease, endometritis and retained products. The department may further define complication by rule and regulation;

(iii)

"
Conception"
means the fusion of a human spermatozoon with a human ovum;

(iv)

"
Department"
means the department of health;

(v)

"Medical facility"

means any public or private hospital, clinic, center, medical school, medical training institution, health care facility, physician's office, infirmary, dispensary, ambulatory surgical treatment center or other institution or location wherein medical care is provided to any person;

(vi)

"
First trimester"
means the first twelve (12) weeks of gestation;

(vii)

"
Gestational age"
means the time that has elapsed since the first day of the woman's last menstrual period;

(viii)

"
Hospital"
means an institution licensed pursuant to the provisions of the law of this state;

(ix)

"
Medical emergency"
means that condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate termination of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function;

(x)

"
Physician"
means any person licensed to practice medicine pursuant to the Medical Practice Act;

(xi)

"
Pregnant"
or
"pregnancy"

means that female reproductive condition of having an unborn child in the mother's

uterus;

(xii)

"
Qualified person"
means an agent of the physician who is a psychologist, licensed social worker, licensed professional counselor, registered nurse or physician;

(xiii)

"
Unborn child"
means the offspring of human beings from conception until birth;

(xiv)

"
Viability"
means the state of fetal development when, in the judgment of the physician based on the particular facts of the case before the physician and in light of the most advanced medical technology and information available to the physician, there is a reasonable likelihood of sustained survival of the unborn child outside the body of the child's mother, with or without artificial support.

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103
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Informed consent requirement.

(a)

No abortion shall be performed or induced without the voluntary and informed consent of the woman upon whom the abortion is to be performed or induced. Except in the case of a medical emergency, consent to an abortion is voluntary and informed only if:

(i)

At least twenty-four (24) hours before the abortion, the physician who is to perform the abortion or the referring physician has informed the woman, orally and in person, of each of the following:

(A)

The name of the physician who will perform the abortion;

(B)

Medically accurate information that a reasonable patient would consider material in deciding whether to undergo an abortion, including a description of the proposed abortion method, the immediate and long-term medical risks associated with the proposed abortion method including, but not limited to, the risks of infection, hemorrhage, cervical or uterine perforation, danger to subsequent pregnancies and increased risk of breast cancer, and alternatives to the abortion;

(C)

The probable gestational age of the unborn child at the time the abortion is to be performed;

(D)

The probable anatomical and physiological characteristics of the unborn child at the time the abortion is to be performed;

(E)

The medical risks associated with carrying her child to term;

(F)

Any need for anti-Rh immune globulin therapy if she is Rh negative, the likely consequences of refusing such therapy, and the cost of the therapy.

(ii)

At least twenty-four (24) hours before the abortion, the physician who is to perform the abortion, the referring physician or a qualified person has informed the woman, orally and in person, of each of the following:

(A)

The existence of medical assistance benefits for prenatal care, childbirth and neonatal care, and the availability of more detailed information regarding such assistance in the printed materials and informational video given to her and described in W.S.
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104
;

(B)

The availability of printed and video materials required by W.S.
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104

describing the unborn child and containing a list of agencies that offer alternatives to abortion;

(C)

The liability of the father of the unborn child to support of this child, even in instances where he has offered to pay for the abortion. In the case of rape or incest, this information may be omitted;

(D)

The woman's authority to withhold or withdraw her consent to the abortion at any time without affecting her right to future care or treatment and without the loss of any state or federally funded benefits to which she might otherwise be entitled.

(iii)

The information in paragraphs (i) and (ii) of this subsection is provided to the woman individually and in a private room to protect her privacy and maintain the confidentiality of her decision, to ensure that the information focuses on her individual circumstances and that she has an adequate opportunity to ask questions;

(iv)

At least twenty-four (24) hours before the abortion, the woman is given a copy of the printed materials and a viewing of, or a copy of, the informational video described in W.S.
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104
. If the woman is unable to read the materials, they shall be read to her. If the woman asks questions concerning any of the information or materials, answers shall be provided to her in a language she can understand;

(v)

Prior to the abortion, the woman certifies in writing on a checklist form provided or approved by the department that the information required to be provided under paragraphs (i) and (ii) of this subsection has been provided in the manner required by paragraph (iii) of this subsection. All physicians who perform abortions shall report monthly to the department the total number of certifications received. The department shall annually make the number of certifications received available to the public.

(b)

Except in the case of a medical emergency, the physician who is to perform the abortion shall receive and sign a copy of the written certification prescribed in paragraph (a)(v) of this section prior to performing the abortion. The physician shall retain a copy of the checklist certification form in the woman’s medical record.

(c)

In the event of a medical emergency requiring an immediate termination of pregnancy, the physician who performed the abortion shall clearly certify in writing the nature of the medical emergency and the circumstances which necessitated the waiving of the informed consent requirements of this section. This certification shall be signed by the physician who performed the emergency abortion, and shall be permanently filed in both the records of the physician performing the abortion and the records of the facility where the abortion takes place.

(d)

A physician shall not require or obtain payment for a service provided to a patient who has inquired about an abortion or scheduled an abortion until the expiration of the twenty-four (24) hour reflection period required in paragraphs (a)(i), (ii) and (iv) of this section.

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.

Publication of materials.

(a)

The department shall cause to be published printed materials and an informational video in English and
Spanish
,
within s
ixty (60)
days after this act becomes law, including:

(i)

Geographically indexed materials that inform the woman of public and private agencies and services available to assist a woman through pregnancy, upon childbirth and while her child is dependent, including but not limited to adoption agencies. The materials shall include a comprehensive list of the agencies, a description of the services they offer, and the telephone numbers and addresses of the agencies, and shall inform the woman about available medical assistance benefits for prenatal care, childbirth and neonatal care. The department shall ensure that the materials described in this paragraph are comprehensive and do not directly or indirectly promote, exclude or discourage the use of any agency or service described in this paragraph;

(ii)

A statement that any physician who performs an abortion upon a woman without her informed consent may be liable to her for damages in a civil action at law and that the law permits adoptive parents to pay costs of prenatal care, childbirth and neonatal care;

(iii)

The following statement:

"There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or to place her or him for adoption. The state of Wyoming strongly urges you to contact one or more of these agencies before making a final decision about abortion. The law requires that your physician or his agent give you the opportunity to call agencies like these before you undergo an abortion."

(iv)

Materials that include information on the support obligations of the father of a child who is born alive, including but not limited to the father's legal duty to support his child, which may include child support payments and health insurance, and the fact that paternity may be established by the father's signature on a birth certificate or statement of paternity, or by court action;

(v)

A statement that more information concerning paternity establishment and child support services and enforcement may be obtained by calling state or county public assistance agencies;

(vi)

Materials that inform the pregnant woman of the probable anatomical and physiological characteristics of the unborn child at two (2) week gestational increments from fertilization to full term, including photo or caricature of the developing unborn child at two (2) week gestational increments. The descriptions shall include information about brain and heart function, the presence of external members and internal organs during the applicable stages of development and any relevant information on the possibility of the unborn child's survival. If a photograph is not available, a picture shall contain the dimensions of the unborn child and shall be realistic. The materials shall be objective, nonjudgmental and designed to convey only accurate scientific information about the unborn child at the various gestational ages;

(vii)

Materials which contain objective information describing the various surgical and drug induced methods of abortion, as well as the immediate and long-term medical risks commonly associated with each abortion method including, but not limited to, the risks of infection, hemorrhage, cervical or uterine perforation or rupture, danger to subsequent pregnancies, increased risk of breast cancer, the possible adverse psychological effects associated with an abortion, and the medical risks associated with carrying a child to term;

(viii)

A checklist certification form to be used by the physician or a qualified person under W.S. 35
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103(a)(v), which will list all the items of information which are to be given to the woman by a physician or the agent under this chapter.

(b)

The materials required by this section shall be printed in a typeface large enough to be clearly legible. The materials shall be available at no cost from the department of health upon request and in appropriate number to any person, facility or hospital.

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Emergencies.

When a medical emergency compels the performance of an abortion, the physician shall inform the woman, before the abortion if possible, of the medical indications supporting the physician’s judgment that an immediate abortion is necessary to avert her death or that a twenty-four (24) hour delay will cause substantial and irreversible impairment of a major bodily function.

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Civil Penalties.

(a)

Failure to comply with the requirements of this chapter shall:

(i)

Provide a basis for a civil malpractice action. Any intentional violation of this chapter shall be admissible in a civil suit as prima facie evidence of a failure to obtain informed consent. When requested, the court shall allow a woman to proceed using solely her initials or a pseudonym and may close any proceedings in the case and enter other protective orders to preserve the privacy of the woman upon whom the abortion was performed;

(ii)

Provide a basis for professional disciplinary action under
the Medical Practice Act;

(iii)

Provide a basis for recovery for the woman for the wrongful death of her unborn child pursuant to c
hapter 38 of title 1
of the Wyoming statutes, whether or not the unborn child was born alive or was viable at the time the abortion was performed.

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.

Reporting.

(a)

For the purpose of promotion of maternal health and life by adding to the sum of medical and public health knowledge through the compilation of relevant data, and to promote the state's interest in protection of the unborn child, a report of each abortion performed shall be made to the department on forms prescribed by it. The reports shall be completed by the hospital or other licensed facility in which the abortion occurred, signed by the physician who performed the abortion, and transmitted to the department within fifteen (15) days after each reporting month. The report forms shall not identify the individual patient by name and shall include the following information:

(i)

Identification of the physician who performed the abortion and the facility where the abortion was performed and identification of the referring physician, agency or service, if any. Notwithstanding any provision of law to the contrary, the department shall ensure that the identification of any physician or other health care provider reporting under this section shall not be released or otherwise made available to the general public;

(ii)

The county and state in which the woman resides;

(iii)

The woman's age;

(iv)

The number of prior pregnancies and prior abortions of the woman;

(v)

The probable gestational age of the unborn child;

(vi)

The type of procedure performed or prescribed and the date of the abortion;

(vii)

Preexisting medical condition of the woman which would complicate pregnancy, if any, and, if known, medical complications which resulted from the abortion;

(viii)

The length and weight of the aborted child for any abortion performed pursuant to a medical emergency as defined in W.S. 35
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105;

(ix)

The basis for any medical judgment that a medical emergency existed which excused the physician from compliance with any provision of this chapter.

(b)

When there is an abortion performed during the first trimester of pregnancy, the tissue that is removed shall be subjected to a gross or microscopic examination, as needed, by the physician or a qualified person designated by the physician to determine if a pregnancy existed and was terminated. If the examination indicates no fetal remains, that information shall immediately be made known to the physician and sent to the department within fifteen (15) days of the analysis.

(c)

When there is an abortion performed after the first trimester of pregnancy, the physician shall certify whether or not the child is viable, and the dead unborn child and all tissue removed at the time of the abortion shall be submitted for tissue analysis to a board eligible or certified pathologist. If the report reveals evidence of viability or live birth, the pathologist shall report such findings to the department within fifteen (15) days, and a copy of the report shall also be sent to the physician performing the abortion. The department shall prescribe a form on which pathologists may report any evidence of live birth, viability or absence of pregnancy.

(d)

Every facility in which an abortion is performed within this state during any quarter year shall file with the department a report showing the total number of abortions performed within the hospital or other facility during that quarter year. This report shall also show the total abortions performed in each trimester of pregnancy. These reports shall be submitted on a form prescribed by the department that will enable a facility to indicate whether or not it is receiving state appropriated funds. The reports shall be available for public inspection and copying only if the facility receives state appropriated funds within the twelve (12) calendar month period immediately preceding the filing of the report. If the facility indicates on the form that it is not receiving state appropriated funds, the department shall regard that facility’s report as confidential unless it receives other evidence that causes it to conclude that the facility receives state-appropriated funds.

(e)

After thirty (30) days public notice following the enactment of this chapter, the department shall require that all reports of maternal deaths occurring within the state arising from pregnancy, childbirth or intentional abortion state the cause of death, the duration of the woman's pregnancy, when her death occurred and whether or not the woman was under the care of a physician during her pregnancy prior to her death. The department shall issue any necessary regulations to assure that information is reported, and conduct its own investigation, if necessary, to ascertain the data.
Known incidents of maternal mortality of nonresident women arising from induced abortion performed in this state shall be included in the report as incidents of maternal mortality arising from induced abortions. Incidents of maternal mortality arising from continued pregnancy or childbirth and occurring after induced abortion has been attempted but not completed, including deaths occurring after induced abortion has been attempted but not completed as a result of ectopic pregnancy, shall be included as incidents of maternal mortality arising from induced abortion.

(f)

Every physician who is called upon to provide medical care or treatment to a woman who is in need of medical care because of a complication or complications resulting, in the good faith judgment of the physician, from having undergone an abortion or attempted abortion, shall prepare a report. The report shall be filed with the department within thirty (30) days of the date of the physician's first examination of the woman. The report shall be on forms prescribed by the department. The forms shall contain the following information together with other information except the name of the patient, as the department may from time to time require:

(i)

Age of patient;

(ii)

Number of pregnancies patient may have had prior to the abortion;

(iii)

Number and type of abortions patient may have had prior to this abortion;

(iv)

Name and address of the facility where the abortion was performed;

(v)

Gestational age of the unborn child at the time of the abortion, if known;

(vi)

Type of abortion performed, if known;

(vii)

Nature of complication or complications;

(viii)

Medical treatment given;

(ix)

The nature and extent, if known, of any permanent condition caused by any complication.

(g)

Reports filed pursuant to subsection (a) or (f) of this section shall not be deemed public records and shall remain confidential, except that disclosure may be made to law enforcement officials upon an order of a court after application showing good cause. The court may condition disclosure of the information upon any appropriate safeguards it may impose.

(h)

The department shall prepare a comprehensive annual statistical report for the legislature based upon the data gathered from reports under subsections (a) and (f) of this section. The statistical report shall not lead to the disclosure of the identity of any physician or person filing a report under subsections (a) or (f) of this section, nor of any patient about whom a report is filed. The statistical report shall be available for public inspection and copying.

(j)

Original copies of all reports filed under subsections (a), (c) and (f) of this section shall be available to the state board of medicine for use in the performance of its official duties.

(k)

The following penalties shall apply:

(i)

Any person required under this section to file a report, keep any records, or supply any information, who willfully fails to file the report, keep the records, or supply the information at the time or times required by law or regulation, is guilty of unprofessional conduct, and the person's license for the practice of medicine and surgery shall be subject to suspension or revocation in accordance with procedures provided under the

Medical Practice Act;

(ii)

Any person who willfully delivers or discloses to the department any report, record or information known by the person to be false is guilty of a misdemeanor punishable by imprisonment for up to fifteen (15) days, a fine of up to five hundred dollars ($500.00), or both;

(iii)

Any person who willfully discloses any information obtained from reports filed pursuant to subsection (a) or (f) of this section, other than that disclosure authorized under subsection (g) of this section, or as otherwise authorized by law, is guilty of a misdemeanor punishable by imprisonment for up to fifteen (15) days, a fine of up to five hundred dollars ($500.00), or both
;

(iv)

Intentional, knowing, reckless or negligent failure of the physician to submit an unborn child or tissue remains to a pathologist as required by subsection (b) of this section, or intentional, knowing or reckless failure of the pathologist to report any evidence of live birth or viability to the department in the manner and within the time prescribed in subsection (b) of this section is a misdemeanor punishable by imprisonment for up to thirty (30) days, a fine of up to one thousand dollars ($1,000.00), or both;

(v)

In addition to the penalties in paragraphs (i) through (iv) of this subsection, any person, organization or facility who willfully violates any of the provisions of this section requiring reporting shall:

(A)

Upon a first conviction, have its license suspended for a period of six (6) months;

(B)

Upon a second conviction within two (2) years, have its license suspended for a period of one (1) year;

(C)

Upon a third conviction within three (3) years, have its license revoked.

(m)

The department shall create the forms required by this chapter within sixty (60) days after the effective date of this act and shall cause to be published, within ninety (90) days after the effective date of this act, the printed materials described in this chapter.
No provision of this chapter requiring the reporting of information on forms published by the department, or requiring the distribution of printed materials published by the department pursuant to this chapter, shall be applicable until ten (10) days after the requisite forms are first created and printed materials are first published by the department or until the effective date of this act, whichever is later.

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Construction.

(a)

Nothing in this chapter shall be construed as creating or recognizing a right to abortion.

(b)

Nothing in this chapter shall be construed to make lawful an abortion that is currently unlawful.

Section 2.

This act is effective July 1, 2005.

(END)

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HB0276