HB399 (2005) Detail

Relative to the Informed Consent for Abortion Act.


HB 399-FN – AS INTRODUCED

2005 SESSION

05-0536

01/09

HOUSE BILL 399-FN

AN ACT relative to the Informed Consent for Abortion Act.

SPONSORS: Rep. Hagan, Hills 17; Rep. Souza, Hills 11; Rep. Sorg, Graf 3

COMMITTEE: Health, Human Services and Elderly Affairs

ANALYSIS

This bill requires the informed consent of a pregnant woman before an abortion may be performed.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

05-0536

01/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Five

AN ACT relative to the Informed Consent for Abortion Act.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Subdivision; Informed Consent for Abortion Act. Amend RSA 132 by inserting after section 28 the following new subdivision:

Informed Consent for Abortion Act

132:29 Title. This subdivision may be known and cited as the “Informed Consent for Abortion Act.”

132:30 Findings and Purposes.

I. The general court finds that:

(a) It is essential to the psychological and physical well-being of a woman considering an abortion that she receive complete and accurate information on her alternatives.

(b) The knowledgeable exercise of a woman’s decision to have an abortion depends on the extent to which the woman receives sufficient information to make an informed choice between 2 alternatives: giving birth or having an abortion.

II. Based on the findings in paragraph I, it is the purpose of this subdivision to:

(a) Ensure that every woman considering an abortion receive information on her alternatives and that every woman submitting to an abortion do so only after giving her voluntary and informed consent to the abortion procedure;

(b) Reduce “the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.” Planned Parenthood v. Casey, 505 U.S. 833, 882 (1992); and

(c) Adopt the construction of the term “Medical Emergency” accepted by the U.S. Supreme Court in Planned Parenthood v. Casey, 505 U.S. 833 (1992).

132:31 Definitions. In this subdivision:

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:

(a) Save the life or preserve the health of an unborn child;

(b) Remove a dead unborn child caused by spontaneous abortion; or

(c) Remove an ectopic pregnancy.

II. “Complication” means that condition which includes but is not limited to hemorrhage, infection, uterine perforation, cervical laceration, pelvic inflammatory disease, endometriosis, and retained products. The department may further define “complication.”

III. “Department” means the department of health and human services.

IV. “Facility” or “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.

V. “Fertilization” means the fusion of a human spermatozoon with a human ovum.

VI. “First trimester” means the first 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 RSA 151.

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 abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of major bodily function.

X. “Physician” means any person licensed under RSA 329.

XI. “Pregnant” or “pregnancy” means that female reproductive condition of having an unborn child in the woman’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 him or her and in light of the most advanced medical technology and information available to him or her, there is a reasonable likelihood of sustained survival of the unborn child outside the body of his or her mother, with or without artificial support. 132:32 Informed Consent Requirement. 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 if and only if:

I. At least 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 the following:

(a) The name of the physician who will perform the abortion.

(b) Medically accurate information that a reasonable patient would consider material to the decision of whether or not to undergo the abortion including:

(1) A description of the proposed abortion method;

(2) 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

(3) Alternatives to the abortion.

(c) The probable gestational age of the unborn child at the time the abortion is to be performed, and, if the unborn child is viable or has reached the gestational age of 24 weeks, that:

(1) The unborn child may be able to survive outside the womb;

(2) The woman has the right to request the physician to use the method of treatment that is most likely to preserve the life of the unborn child; and

(3) If the unborn child is born alive, the attending physician has the legal obligation to take all reasonable steps necessary to maintain the life and health of the child.

(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 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, that:

(a) Medical assistance benefits may be available for prenatal care, childbirth, and neonatal care, and that more detailed information on the availability of such assistance is contained in the printed materials given to her and described in RSA 132:33.

(b) The printed materials in RSA 132:33 describe the unborn child and list agencies that offer alternatives to abortion.

(c) The father of the unborn child is liable to assist in the 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) She is free 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 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 24 hours before the abortion, the woman is given a copy of the printed materials described in RSA 132:33. 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, II, and IV has been provided.

VI. 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 V prior to performing the abortion. The physician shall retain a copy of the checklist certification form in the woman’s medical record.

VII. 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 24-hour reflection period required in paragraphs I, II, and IV.

132:33 Publication of Materials. The department shall publish and make available printed materials in English, within 90 days after this subdivision becomes law. On an annual basis, the department shall review and update, if necessary, the following easily comprehensible printed materials:

I.(a) 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.

(b) The department shall ensure that the materials described in this section are comprehensive and do not directly or indirectly promote, exclude, or discourage the use of any agency or service described in this section. The materials shall also contain a toll-free 24-hour-a-day telephone number which may be called to obtain information about the agencies in the locality of the caller and of the services they offer.

(c) The materials shall state that it is unlawful for any individual to coerce a woman to undergo an abortion and that if a minor is denied financial support by the minor’s parents, guardian, or custodian due to the minor’s refusal to have an abortion performed, the minor shall be deemed emancipated for the purposes of eligibility for public-assistance benefits, except that such benefits may not be used to obtain an abortion. The materials shall also state 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. The materials shall include the following statement:

(d) “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 him or her for adoption. The state of New Hampshire 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 or her agent give you the opportunity to call agencies like these before you undergo an abortion.”

II.(a) 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.

(b) The printed material shall also state that more information concerning paternity establishment and child support services and enforcement may be obtained by calling state or county public assistance agencies.

III. Materials that inform the pregnant woman of the probable anatomical and physiological characteristics of the unborn child at 2-week gestational increments from fertilization to full term, including color photographs of the developing unborn child at 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.

IV. 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.

V. A checklist certification form to be used by the physician or a qualified person under RSA 132:32, V, which shall list all the items of information which are to be given to the woman by a physician or the agent under this subdivision.

VI. The materials shall be printed in a typeface large enough to be clearly legible.

VII. The materials required under this section shall be available at no cost from the department upon request and in an appropriate number to any person, facility, or hospital.

132:34 Criminal Penalties. Any person who intentionally, knowingly, or recklessly violates this subdivision is guilty of a felony. Any information given by the woman pursuant to this subdivision shall be confidential and any person, except the woman who provided the information, who willfully discloses any such information shall be guilty of a felony.

132:35 Civil Penalties. In addition to whatever remedies are available under the common or statutory law of this state, failure to comply with the requirements of this subdivision shall:

I. Provide a basis for a civil malpractice action. Any intentional violation of this subdivision 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 RSA 329.

III. Provide a basis for recovery for the woman for the wrongful death of her unborn child, whether or not the unborn child was born alive or was viable at the time the abortion was performed.

132:36 Construction. Nothing in this subdivision shall be construed as creating or recognizing a right to abortion. It is not the intention of this subdivision to make lawful an abortion that is currently unlawful.

132:37 Severability. If any provision of this subdivision or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the provisions or applications of this subdivision which can be given effect without the invalid provisions or applications, and to this end, the provisions of this subdivision are severable.

2 Effective Date. This act shall take effect January 1, 2006.

LBAO

05-0536

01/18/05

HB 399-FN - FISCAL NOTE

AN ACT relative to the Informed Consent for Abortion Act

FISCAL IMPACT:

      The Departments of Health and Human Services, Corrections, Justice, Judicial Branch, Judicial Council and Board of Medicine state this bill will increase state expenditures and revenue by an indeterminable amount in FY 2006 and in each year thereafter. There will be no fiscal impact on county and local revenue or expenditures.

METHODOLOGY:

    The Department of Health and Human Services made the following assumptions in order to meet the requirements of producing educational materials:

      • Initial development and production of the printed materials would be provided by a contractor prior to the effective date of January 1, 2006.

      • In future years, costs would be incurred to make revisions to the printed material which will be necessary due to changes in legal and medical issues and available services.

      • Distribution and maintenance of the materials and forms would require the equivalent of ¼ staff person paid at labor grade 12 starting on October 1, 2006. Postage and printing costs would be necessary to supply providers with the materials and forms.

      • The toll free 24-hour a day telephone number would not be the responsibility of the Department.

    The Department estimated the expenditures as follows:

    Expenditures FY 2006 FY 2007 FY 2008 FY 2009

    Staff Salary, LG 12, ¼ time $ 4,117 $5,734 $5,948 $6,182

    Staff Benefits @ 44% 315 436 455 473

    Current Expense / supplies 1,500 1,000 1,000 1,000

Computer & furniture 3,500 0 0 0

    Contract 10,000 2,000 2,000 2,000

    Totals $19,432 $9,170 $9,403 $9,655

    The Department of Corrections can not project the number of individuals who may be sentenced under this bill, but stated that the average annual cost of incarceration in FY 2004 was $27,533.

    The Department of Justice indicated it would incur additional costs to if a case were appealed to the Supreme Court, since all criminal appeals to the Supreme Court are handled by the Justice Department. The Department cannot estimate the number of cases that will be appealed to the Supreme Court.

    The Judicial Branch stated the bill provides for criminal penalties at the felony level as well as civil remedies including a malpractice action, professional discipline and wrongful death action. In addition the Branch assumes constitutional challenges would be likely. The Branch is not able to estimate the number of potential cases, constitutional challenges or appeals, but provided the following cost estimate of a full day’s trial in the superior court:

              Judge $ 696.00

              Court Monitor 159.98

              Deputy Clerk 282.30

              Bailiff 69.97

                      Total $1,208.25

    Additional costs may include preliminary hearings, a jury, time to write a charge to the jury, clerical processing, and preliminary hearings, which could result in a daily cost over $1,500. If a decision were appealed, additional costs would be incurred at the Supreme Court.

    Judicial Council assumed that if the individual charged is found eligible for representation as and indigent defendant, costs to the state general fund would be incurred. The court would appoint either a public defender or a contract attorney paid at a rate of $687.50 per felony. If an assigned counsel attorney is required, a $60 per hour rate with a cap of $3,000 would apply. The $3,000 cap may be waived upon a motion approved by the court. In addition, “services other than counsel” may be approved and cases may be appealed resulting in additional costs to the state general fund through the courts and indigent defense appropriations. The Council is not able to determine the number of cases where the defendant would be eligible for indigent representation, the cost of their defense, or the number of cases that will be appealed.

    The Board of Medicine stated there are 188 practicing OB/GYNs in New Hampshire. The Board assumed the bill requires the Board to hold a disciplinary hearing for a physicians accused of an offense. The Board provided the following cost estimate for a typical hearing:

    Per Diem pay for 8 Board Members $ 800

    Mileage reimbursement for the Board Members 245

    Court Reporter for ½ day 300

    Staff time 71

    Total $1,416

    The Board of Medicine assumed this bill will result in additional hearings but cannot predict how many additional would be held.