2019 -- H 5125 SUBSTITUTE A

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO HEALTH AND SAFETY - THE REPRODUCTIVE PRIVACY ACT

     Introduced By: Representatives Williams, Blazejewski, Alzate, Barros, and Shanley

     Date Introduced: January 16, 2019

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby

amended by adding thereto the following chapter:

CHAPTER 4.13

REPRODUCTIVE PRIVACY ACT

     23-4.13-1. Short title.

     This chapter shall be known and may be cited as the "Reproductive Privacy Act."

     23-4.13-2. Noninterference in reproductive health care.

     (a) Neither the state, nor any of its agencies, or political subdivisions shall:

     (1) Restrict an individual person from preventing, commencing, continuing, or

terminating that individual's pregnancy prior to fetal viability;

     (2) Interfere with an individual person’s decision to continue that individual's pregnancy

after fetal viability;

     (3) Restrict an individual person from terminating that individual's pregnancy after fetal

viability when necessary to preserve the health or life of that individual;

     (4) Restrict the use of evidence-based, medically recognized methods of contraception or

abortion except in accordance with evidence-based medically appropriate standards that are in

compliance with state and federal statutes enumerated in subsections (c)(1) and (c)(2), department

of health regulations and standards referenced in subsection (c)(3), and subsection (d); or

     (5) Restrict access to evidence-based, medically recognized methods of contraception or

abortion or the provision of such contraception or abortion except in accordance with evidence-

based medically appropriate standards that are in compliance with state and federal statutes

enumerated in subsections (c)(1) and (c)(2), department of health regulations and standards

referenced in subsection (c)(3), and subsection (d).

     (b) For purposes of this section, "fetal viability" means that stage of gestation where the

attending physician, taking into account the particular facts of the case, has determined that there

is a reasonable likelihood of the fetus' sustained survival outside of the womb with or without

artificial support.

     (c) Notwithstanding the foregoing, this section shall not be construed to:

     (1) Abrogate the provisions of §§ 11-9-18 titled "Care of babies born alive during

attempted abortions", 11-54-1 titled "Experimentation on human fetuses", 23-4.6-1 titled

"Consent to medical and surgical care", 23-4.7-1 through 23-4.7-8 titled "Informed consent for

abortion", 23-13-21 titled "Comprehensive reproductive health services", 23-17-11 titled

"Abortion and sterilization -- Protection for nonparticipation -- Procedure", or 42-157-3(d) of the

section titled "Rhode Island Health Benefit Exchange -- General requirements";

     (2) Abrogate the provisions of 18 U.S. Code § 1531, titled "Partial-birth abortions

prohibited" and cited as the "Partial-Birth Abortion Ban Act of 2003";

     (3) Prevent the department of health from applying to licensed health care facilities that

provide abortion any generally applicable regulations or standards that are in accordance with

evidence-based, medically recognized standards for the provision of abortion in compliance with

state and federal statutes enumerated in subsections (c)(1) and (c)(2) and with subsection (d),

provided that such application, adoption or enforcement is not a pretext for violating subsection

(a) of this section.

     (d) The termination of an individual's pregnancy after fetal viability is expressly

prohibited except when necessary, in the medical judgment of the physician, to preserve the life

or health of that individual.

     (1) Any physician who knowingly violates the provisions of this subsection shall be

deemed to have engaged in "unprofessional conduct" for the purpose of § 5-37-5.1.

     SECTION 2. Chapter 11-3 of the General Laws entitled "Abortion" is hereby repealed in

its entirety:

CHAPTER 3

Abortion

     11-3-1. Procuring, counseling or attempting miscarriage.

     Every person who, with the intent to procure the miscarriage of any pregnant woman or

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woman supposed by such person to be pregnant, unless the same be necessary to preserve her life,

shall administer to her or cause to be taken by her any poison or other noxious thing, or shall use

any instrument or other means whatsoever or shall aid, assist or counsel any person so intending

to procure a miscarriage, shall if the woman die in consequence thereof, be imprisoned not

exceeding twenty (20) years nor less than five (5) years, and if she does not die in consequence

thereof, shall be imprisoned not exceeding seven (7) years nor less than one (1) year; provided

that the woman whose miscarriage shall have been caused or attempted shall not be liable to the

penalties prescribed by this section.

     11-3-2. Murder charged in same indictment or information.

     Any person who shall be charged with the murder of any infant child, or of any pregnant

woman, or of any woman supposed by such person to be or to have been pregnant, may also be

charged in the same indictment or information with any or all the offenses mentioned in 11-3-1,

and if the jury shall acquit such person on the charge of murder and find him guilty of the other

offenses or either of them, judgment and sentence may be awarded against him accordingly.

     11-3-3. Dying declarations admissible.

     In prosecutions for any of the offenses described section 11-3-1, in which the death of a

woman is alleged to have resulted from the means therein described, dying declarations of the

deceased woman shall be admissible as evidence, as in homicide cases.

     11-3-4. Construction and application of section 11-3-1.

     It shall be conclusively presumed in any action concerning the construction, application

or validity of section 11-3-1, that human life commences at the instant of conception and that said

human life at said instant of conception is a person within the language and meaning of the

fourteenth amendment of the constitution of the United States, and that miscarriage at any time

after the instant of conception caused by the administration of any poison or other noxious thing

or the use of any instrument or other means shall be a violation of said section 11-3-1, unless the

same be necessary to preserve the life of a woman who is pregnant.

     11-3-5. Constitutionality.

     If any part, clause or section of this act shall be declared invalid or unconstitutional by a

court of competent jurisdiction, the validity of the remaining provisions, parts or sections shall

not be affected.

     SECTION 3. Section 11-23-5 of the General Laws in Chapter 11-23 entitled "Homicide"

is hereby repealed.

     11-23-5. Willful killing of unborn quick child.

     (a) The willful killing of an unborn quick child by any injury to the mother of the child,

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which would be murder if it resulted in the death of the mother; the administration to any woman

pregnant with a quick child of any medication, drug, or substance or the use of any instrument or

device or other means, with intent to destroy the child, unless it is necessary to preserve the life of

the mother; in the event of the death of the child; shall be deemed manslaughter.

     (b) In any prosecution under this section, it shall not be necessary for the prosecution to

prove that any necessity existed.

     (c) For the purposes of this section, "quick child" means an unborn child whose heart is

beating, who is experiencing electronically-measurable brain waves, who is discernibly moving,

and who is so far developed and matured as to be capable of surviving the trauma of birth with

the aid of usual medical care and facilities available in this state.

     SECTION 4. Chapter 23-4.8 of the General Laws entitled "Spousal Notice for Abortion"

is hereby repealed in its entirety.

CHAPTER 23-4.8

Spousal Notice for Abortion

     23-4.8-1. Declaration of purpose.

     The purpose of this chapter is to promote the state's interest in furthering the integrity of

the institutions of marriage and the family.

     23-4.8-2. Spousal notice requirements.

     If a married woman consents to an abortion, as that consent is required by chapter 4.7 of

this title, the physician who is to perform the abortion or his or her authorized agent shall, if

reasonably possible, notify the husband of that woman of the proposed abortion before it is

performed.

     23-4.8-3. Exceptions.

     The requirements of § 23-4.8-2 shall not apply if:

     (1) The woman having the abortion furnishes to the physician who is to perform the

abortion or the physician's authorized agent prior to the abortion being performed a written

statement that she has given notice to her husband of the proposed abortion or a written statement

that the fetus was not fathered by her husband;

     (2) The woman and her husband are living separate and apart or either spouse has filed a

petition or complaint for divorce in a court of competent jurisdiction;

     (3) The physician who is to perform the abortion or his or her authorized agent receives

the written affirmation of the husband that he has been notified of the proposed abortion; or

     (4) There is an emergency requiring immediate action. In the case of an emergency, the

woman's attending physician shall certify in writing on the patient's medical record that an

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emergency exists and the medical basis for his or her opinion.

     23-4.8-4. Penalties.

     In the event a physician performs an abortion, as defined by chapter 4.7 of this title, upon

a woman who he or she knows is married and the physician knowingly and intentionally violates

the requirements of this chapter, he or she shall be guilty of "unprofessional conduct" for the

purposes of § 5-37-5.1.

     23-4.8-5. Severability.

     If any section or provision of this chapter or the application of any section or provision is

held invalid, that invalidity shall not affect other sections, provisions or applications, and to this

end the sections and provisions of this chapter are declared severable.

     SECTION 5. Chapter 23-4.12 of the General Laws entitled "Partial Birth Abortion" is

hereby repealed in its entirety.

CHAPTER 23-4.12

Partial Birth Abortion

     23-4.12-1. Definitions.

     (a) For purposes of this chapter, "partial birth abortion" means an abortion in which the

person performing the abortion vaginally delivers a living human fetus before killing the infant

and completing the delivery.

     (b) For purposes of this chapter, the terms "fetus" and "infant" are used interchangeably

to refer to the biological offspring of human parents.

     (c) As used in this section, "vaginally delivers a living fetus before killing the infant"

means deliberately and intentionally delivers into the vagina a living fetus, or a substantial

portion of the fetus, for the purpose of performing a procedure the person performing the abortion

knows will kill the infant, and kills the infant.

     23-4.12-2. Prohibition of partial birth abortions.

     No person shall knowingly perform a partial birth abortion.

     23-4.12-3. Life of the mother exception.

     Section 23-4.12-2 shall not apply to a partial birth abortion that is necessary to save the

life of a mother because her life is endangered by a physical disorder, physical illness, or physical

injury, including a life-endangering condition caused by or arising from the pregnancy itself;

provided, that no other medical procedure would suffice for that purpose.

     23-4.12-4. Civil remedies.

     (a) The woman upon whom a partial birth abortion has been performed in violation of §

23-4.12-2, the father of the fetus or infant, and the maternal grandparents of the fetus or infant,

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and the maternal grandparents of the fetus or infant if the mother has not attained the age of

eighteen (18) years at the time of the abortion, may obtain appropriate relief in a civil action,

unless the pregnancy resulted from the plaintiff's criminal conduct or the plaintiff consented to

the abortion.

     (b) The relief shall include:

     (1) Money damages for all injuries, psychological and physical, occasioned by the

violation of this chapter; and

     (2) Statutory damages equal to three (3) times the cost of the partial birth abortion.

     (c) If judgment is rendered in favor of the plaintiff in an action described in this section,

the court shall also render judgment for a reasonable attorney's fee in favor of the plaintiff against

the defendant. If the judgment is rendered in favor of the defendant and the court finds that the

plaintiff's suit was frivolous and brought in bad faith, the court shall also render judgment for a

reasonable attorney's fee in favor of the defendant against the plaintiff.

     23-4.12-5. Penalty.

     (a) Performance of a partial birth abortion deliberately and intentionally is a violation of

this chapter and shall be a felony.

     (b) A woman upon whom a partial birth abortion is performed may not be prosecuted

under this chapter for violating this chapter or any provision this chapter, or for conspiracy to

violate this chapter or any provision this chapter.

     23-4.12-6. Severability.

     (a) If any one or more provisions, clauses, phrases, or words of § 23-4.12-3 or the

application of that section to any person or circumstance is found to be unconstitutional, it is

declared to be inseverable.

     (b) If any one or more provisions, sections, subsections, sentences, clauses, phrases or

words of the remaining sections or the application of them to any person or circumstance is found

to be unconstitutional, they are declared to be severable and the balance of the chapter shall

remain effective notwithstanding the unconstitutionality. The legislature declares that it would

have passed this chapter, and each provision, section, subsection, sentence, clause, phrase, or

words, with the exception of § 23-4.12-3, irrespective of the fact that any one or more provisions,

sections, subsections, sentences, clauses, phrases, or words be declared unconstitutional.

     SECTION 6. Section 27-18-28 of the General Laws in Chapter 27-18 entitled "Accident

and Sickness Insurance Policies" is hereby repealed.

     27-18-28. Health insurance contracts -- Abortion.

     (a) No health insurance contract, plan, or policy, delivered or issued for delivery in the

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state, shall provide coverage for induced abortions, except where the life of the mother would be

endangered if the fetus were carried to term or where the pregnancy resulted from rape or incest,

and except by an optional rider for which there must be paid an additional premium. This section

shall be applicable to all contracts, plans, or policies of:

     (1) All health insurers subject to this title;

     (2) All group and blanket health insurers subject to this title;

     (3) All nonprofit hospital, medical, surgical, dental, and health service corporations; and

     (4) All health maintenance organizations;

     (5) Any provision of medical, hospital, surgical, and funeral benefits, and of coverage

against accidental death or injury, when the benefits or coverage are incidental to or part of other

insurance authorized by the statutes of this state.

     (b) Nothing contained in this section shall be construed to pertain to insurance coverage

for complications as the result of an abortion.

     SECTION 7. Section 36-12-2.1 of the General Laws in Chapter 36-12 entitled "Insurance

Benefits" is hereby amended to read as follows:

     36-12-2.1. Health insurance benefits -- Coverage for abortions excluded.

     (a) The state of Rhode Island or any city or town shall not include in any health insurance

contracts, plans, or policies covering employees, any provision which shall provide coverage for

induced abortions (except where the life of the mother would be endangered if the fetus were

carried to term, or where the pregnancy resulted from rape or incest). This section shall be

applicable to all contracts, plans or policies of:

     (1) All health insurers subject to title 27;

     (2) All group and blanket health insurers subject to title 27;

     (3) All nonprofit hospital, medical, surgical, dental, and health service corporations;

     (4) All health maintenance organizations; and

     (5) Any provision of medical, hospital, surgical, and funeral benefits and of coverage

against accidental death or injury when the benefits or coverage are incidental to or part of other

insurance authorized by the statutes of this state.

     (b) Provided, however, that the provisions of this section shall not apply to benefits

provided under existing collective bargaining agreements entered into prior to June 30, 1982.

     (c) Nothing contained herein shall be construed to pertain to insurance coverage for

complications as the result of an abortion.

     SECTION 8. Section 42-12.3-3 of the General Laws in Chapter 42-12.3 entitled "Health

Care for Children and Pregnant Women" is hereby amended to read as follows:

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     42-12.3-3. Medical assistance expansion for pregnant women/RIte Start.

     (a) The director of the department of human services is authorized to amend its title XIX

state plan pursuant to title XIX of the Social Security Act to provide Medicaid coverage and to

amend its title XXI state plan pursuant to Title XXI of the Social Security Act to provide medical

assistance coverage through expanded family income disregards for pregnant women whose

family income levels are between one hundred eighty-five percent (185%) and two hundred fifty

percent (250%) of the federal poverty level. The department is further authorized to promulgate

any regulations necessary and in accord with title XIX [42 U.S.C. § 1396 et seq.] and title XXI

[42 U.S.C. § 1397 et seq.] of the Social Security Act necessary in order to implement said state

plan amendment. The services provided shall be in accord with title XIX [42 U.S.C. § 1396 et

seq.] and title XXI [42 U.S.C. § 1397 et seq.] of the Social Security Act.

     (b) The director of the department of human services is authorized and directed to

establish a payor of last resort program to cover prenatal, delivery and postpartum care. The

program shall cover the cost of maternity care for any woman who lacks health insurance

coverage for maternity care and who is not eligible for medical assistance under title XIX [42

U.S.C. § 1396 et seq.] and title XXI [42 U.S.C. § 1397 et seq.] of the Social Security Act

including, but not limited to, a non-citizen pregnant woman lawfully admitted for permanent

residence on or after August 22, 1996, without regard to the availability of federal financial

participation, provided such pregnant woman satisfies all other eligibility requirements. The

director shall promulgate regulations to implement this program. Such regulations shall include

specific eligibility criteria; the scope of services to be covered; procedures for administration and

service delivery; referrals for non-covered services; outreach; and public education. Excluded

services under this paragraph will include, but not be limited to, induced abortion except to

prevent the death of the mother in cases of rape or incest or to save the life of the pregnant

individual.

     (c) The department of human services may enter into cooperative agreements with the

department of health and/or other state agencies to provide services to individuals eligible for

services under subsections (a) and (b) above.

     (d) The following services shall be provided through the program:

     (1) Ante-partum and postpartum care;

     (2) Delivery;

     (3) Cesarean section;

     (4) Newborn hospital care;

     (5) Inpatient transportation from one hospital to another when authorized by a medical

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provider;

     (6) Prescription medications and laboratory tests;

     (e) The department of human services shall provide enhanced services, as appropriate, to

pregnant women as defined in subsections (a) and (b), as well as to other pregnant women

eligible for medical assistance. These services shall include: care coordination, nutrition and

social service counseling, high risk obstetrical care, childbirth and parenting preparation

programs, smoking cessation programs, outpatient counseling for drug-alcohol use, interpreter

services, mental health services, and home visitation. The provision of enhanced services is

subject to available appropriations. In the event that appropriations are not adequate for the

provision of these services, the department has the authority to limit the amount, scope and

duration of these enhanced services.

     (f) The department of human services shall provide for extended family planning services

for up to twenty-four (24) months postpartum. These services shall be available to women who

have been determined eligible for RIte Start or for medical assistance under title XIX [42 U.S.C.

§ 1396 et seq.] or title XXI [42 U.S.C. § 1397 et seq.] of the Social Security Act.

     SECTION 9. Section 23-4.7-6 of the General Laws in Chapter 23-4.7 entitled "Informed

Consent for Abortion" is hereby amended to read as follows:

     23-4.7-6. Minors -- Parental consent -- Judicial proceedings.

     Except in the case of a minor who has been found by a court of competent jurisdiction to

be emancipated, if a pregnant woman is less than eighteen (18) years of age and has not married,

an abortion shall not be performed upon her unless both the consent of the pregnant woman and

that of at least one of her parents is obtained, except as provided in this section. In deciding

whether to grant consent, a pregnant woman's parents shall consider only their child's best

interests. If both parents have died or are otherwise unavailable to the physician within a

reasonable time and in a reasonable manner, consent of the pregnant woman's legal guardian or

one of her guardians or a grandparent or adult sibling over the age of twenty-five (25) shall be

sufficient. If a pregnant woman less than eighteen (18) years of age has not married and if neither

of her parents or guardians or a grandparent or adult sibling over the age of twenty-five (25) agree

to consent to the performance of an abortion, or if she elects not to seek the consent of either of

her parents or guardians or a grandparent or adult sibling over the age of twenty-five (25), a judge

of the family court shall, upon petition, or motion, and after an appropriate hearing, authorize a

physician to perform the abortion, if the judge determines that the pregnant woman is mature and

capable of giving informed consent to the proposed abortion or if the judge determines that she is

not mature, but that the performance of an abortion upon her would be in her best interests. A

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pregnant woman less than eighteen (18) years of age may participate in proceedings in the family

court on her own behalf, and she shall be represented in her proceeding by a guardian ad litem.

Proceedings in the family court under this section shall be confidential and shall be given such

precedence over other pending matters that the court may reach a decision promptly and without

delay so as to serve the best interests of the pregnant woman. A judge of the family court who

conducts proceedings under this section shall make in writing specific factual findings and legal

conclusions supporting his or her decision and shall order a record of the evidence to be

maintained including his or her own findings and conclusions.

     SECTION 10. Section 5-37-5.1 of the General Laws in Chapter 5-37 entitled "Board of

Medical Licensure and Discipline" is hereby amended to read as follows:

     5-37-5.1. Unprofessional conduct.

     The term "unprofessional conduct" as used in this chapter includes, but is not limited to,

the following items or any combination of these items and may be further defined by regulations

established by the board with the prior approval of the director:

     (1) Fraudulent or deceptive procuring or use of a license or limited registration;

     (2) All advertising of medical business, which is intended or has a tendency to deceive

the public;

     (3) Conviction of a crime involving moral turpitude; conviction of a felony; conviction of

a crime arising out of the practice of medicine;

     (4) Abandoning a patient;

     (5) Dependence upon controlled substances, habitual drunkenness, or rendering

professional services to a patient while the physician or limited registrant is intoxicated or

incapacitated by the use of drugs;

     (6) Promotion by a physician or limited registrant of the sale of drugs, devices,

appliances, or goods or services provided for a patient in a manner as to exploit the patient for the

financial gain of the physician or limited registrant;

     (7) Immoral conduct of a physician or limited registrant in the practice of medicine;

     (8) Willfully making and filing false reports or records in the practice of medicine;

     (9) Willfully omitting to file or record, or willfully impeding or obstructing a filing or

recording, or inducing another person to omit to file or record, medical or other reports as

required by law;

     (10) Failing to furnish details of a patient's medical record to succeeding physicians,

health care facility, or other health care providers upon proper request pursuant to § 5-37.3-4;

     (11) Soliciting professional patronage by agents or persons or profiting from acts of those

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representing themselves to be agents of the licensed physician or limited registrants;

     (12) Dividing fees or agreeing to split or divide the fees received for professional services

for any person for bringing to or referring a patient;

     (13) Agreeing with clinical or bioanalytical laboratories to accept payments from these

laboratories for individual tests or test series for patients;

     (14) Making willful misrepresentations in treatments;

     (15) Practicing medicine with an unlicensed physician except in an accredited

preceptorship or residency training program, or aiding or abetting unlicensed persons in the

practice of medicine;

     (16) Gross and willful overcharging for professional services; including filing of false

statements for collection of fees for which services are not rendered, or willfully making or

assisting in making a false claim or deceptive claim or misrepresenting a material fact for use in

determining rights to health care or other benefits;

     (17) Offering, undertaking, or agreeing to cure or treat disease by a secret method,

procedure, treatment or medicine;

     (18) Professional or mental incompetency;

     (19) Incompetent, negligent, or willful misconduct in the practice of medicine which

includes the rendering of medically unnecessary services, and any departure from, or the failure

to conform to, the minimal standards of acceptable and prevailing medical practice in his or her

area of expertise as is determined by the board. The board does not need to establish actual injury

to the patient in order to adjudge a physician or limited registrant guilty of the unacceptable

medical practice in this subdivision;

     (20) Failing to comply with the provisions of chapter 4.7 of title 23;

     (21) Surrender, revocation, suspension, limitation of privilege based on quality of care

provided, or any other disciplinary action against a license or authorization to practice medicine

in another state or jurisdiction; or surrender, revocation, suspension, or any other disciplinary

action relating to a membership on any medical staff or in any medical or professional association

or society while under disciplinary investigation by any of those authorities or bodies for acts or

conduct similar to acts or conduct which would constitute grounds for action as described in this

chapter;

     (22) Multiple adverse judgments, settlements or awards arising from medical liability

claims related to acts or conduct which would constitute grounds for action as described in this

chapter;

     (23) Failing to furnish the board, its chief administrative officer, investigator or

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representatives, information legally requested by the board;

     (24) Violating any provision or provisions of this chapter or the rules and regulations of

the board or any rules or regulations promulgated by the director or of an action, stipulation, or

agreement of the board;

     (25) Cheating on or attempting to subvert the licensing examination;

     (26) Violating any state or federal law or regulation relating to controlled substances;

     (27) Failing to maintain standards established by peer review boards, including, but not

limited to, standards related to proper utilization of services, use of nonaccepted procedure,

and/or quality of care;

     (28) A pattern of medical malpractice, or willful or gross malpractice on a particular

occasion;

     (29) Agreeing to treat a beneficiary of health insurance under title XVIII of the Social

Security Act, 42 U.S.C. § 1395 et seq., "Medicare Act", and then charging or collecting from this

beneficiary any amount in excess of the amount or amounts permitted pursuant to the Medicare

Act; or

     (30) Sexual contact between a physician and patient during the existence of the

physician/patient relationship; or

     (31) Knowingly violating the provisions of subsection 23-4.13-2(d).

     SECTION 11. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY - THE REPRODUCTIVE PRIVACY ACT

***

     This act would serve to codify the privacy rights guaranteed by the decision reached in

the United States Supreme Court case of Roe v. Wade, 410 U.S. 113 (1973) and its progeny.

     This act would take effect upon passage.

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