2012 -- H 7414

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LC00588

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO HEALTH AND SAFETY -- WOMEN'S RIGHT TO KNOW ACT

     Introduced By: Representatives Palumbo, Corvese, Brien, Schadone, and Azzinaro

     Date Introduced: February 08, 2012

     Referred To: House Health, Education & Welfare

It is enacted by the General Assembly as follows:

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

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by adding thereto the following chapter:

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     CHAPTER 4.13

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WOMEN'S RIGHT TO KNOW ACT

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     23-4.13-1. Short title. -- This chapter shall be known and may be cited as the "Women's

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Right to Know Act."

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     23-4.13-2. Definitions. -- As used in this chapter, the term:

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     (1) "Abortion" means the use or prescription of any instrument, medicine, drug, or any

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other substance or device intentionally to terminate the pregnancy of a female known to be

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pregnant with an intention other than to increase the probability of a live birth, to preserve the life

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or health of the child after live birth, or to remove a dead fetus.

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     (2) “Attempt to perform an abortion” means an act, or an omission of a statutorily

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required act, that, under the circumstances as the actor believes them to be, constitutes a

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substantial step in a course of conduct planned to culminate in the performance of an abortion in

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Rhode Island in violation of this chapter.

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     (3) "Medical emergency" means any condition which, on the basis of the physician's

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good faith clinical judgment, so complicates the medical condition of a pregnant female as to

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necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will

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create serious risk of substantial and irreversible impairment of a major bodily function.

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     (4) "Physician" means a person licensed under the provisions of chapter 37 of title 5.

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     (5) “Probable gestational age of the unborn child" means what, in the judgment of the

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physician, will with reasonable probability be the gestational age of the unborn child at the time

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the abortion is planned to be performed.

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     (6) “Stable internet website” means a website that, to the extent reasonably practicable, is

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safeguarded from having its content altered other than by the director of the department of health.

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     23-4.13-3. Informed consent. -- No abortion shall be performed in this state except with

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the voluntary and informed consent of the female upon whom the abortion is to be performed.

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Except in the case of a medical emergency, consent to an abortion is voluntary and informed if

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and only if:

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     (1) Information which must be provided by physician. The female is told the following,

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by telephone or in person, by the physician who is to perform the abortion or by a referring

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physician, at least twenty-four (24) hours before the abortion:

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     (i) The name of the physician who will perform the abortion;

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     (ii) The particular medical risks associated with the particular abortion procedure to be

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employed including, when medically accurate, the risks of infection, hemorrhage, danger to

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subsequent pregnancies, and infertility;

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     (iii) The probable gestational age of the unborn child at the time the abortion is to be

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performed; and

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     (iv) The medical risks associated with carrying her child to term.

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     The information required by this subsection may be provided by telephone without

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conducting a physical examination or tests of the patient, in which case the information required

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to be provided may be based on facts supplied to the physician by the female and whatever other

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relevant information is reasonably available to the physician. It may not be provided by a tape

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recording, but must be provided during a consultation in which the physician is able to ask

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questions of the female and the female is able to ask questions of the physician. If a physical

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examination, test, or the availability of other information to the physician subsequently indicate,

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in the medical judgment of the physician, a revision of the information previously supplied to the

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patient, that revised information may be communicated to the patient at any time prior to the

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performance of the abortion. Nothing in this section may be construed to preclude a provision of

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required information in a language understood by the patient through a translator.

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     (2) Information which may be provided by agent of physician. The female shall be

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informed, by telephone or in person, by the physician who is to perform the abortion, by a

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referring physician, or by an agent of either physician at least twenty-four (24) hours before the

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abortion:

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     (i) That medical assistance benefits may be available for prenatal care, childbirth, and

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neonatal care;

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     (ii) That the father is liable to assist in the support of her child, even in instances in which

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the father has offered to pay for the abortion; and

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     (iii) That she has the right to review the printed materials described in section 23-4.13-4

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that these materials are available on a state-sponsored website, and what the website address is.

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The physician or the physician’s agent shall orally inform the female that the materials have been

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provided by the State of Rhode Island and that they describe the unborn child and list agencies

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which offer alternatives to abortion. If the female chooses to view the materials other than on the

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website, they shall either be given to her at least twenty-four (24) hours before the abortion,

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mailed to her at least seventy-two (72) hours before the abortion by certified mail restricted

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delivery to addressee, which means the postal employee can only deliver the mail to the

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addressee.

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     The information required by this subsection may be provided by a tape recording if a

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provision is made to record or otherwise register specifically whether the female does or does not

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choose to have printed materials given or mailed to her.

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     (3) Certification required. The female certifies in writing, prior to the abortion, that the

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information described in subdivisions (1) and (2) of this section has been furnished to her, and

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that she has been informed of her opportunity to review the information referred to in subsection

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(2) of this section.

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     (4) Copy of certification. Prior to the performance of the abortion, the physician who is to

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perform the abortion or the physician’s agent receives a copy of the written certification

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prescribed by subdivision (3) of this section.

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     23-4.13-4. Printed information. -- (a) Alternatives to abortion and unborn development

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data. Within ninety (90) days after this act is enacted, the department of health shall cause to be

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published, in English and in each language which is the primary language of two percent (2%) or

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more of the state’s population, and shall cause to be available on the state website provided for in

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section 23-4.13-5 of this act, the following printed materials in such a way as to ensure that the

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information is easily comprehensible:

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     (1) Geographically indexed materials designed to inform the female of public and private

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agencies and services available to assist a female through pregnancy, upon childbirth, and while

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the child is dependent, including adoption agencies, which shall include a comprehensive list of

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the agencies available, a description of the services they offer, and a description of the manner,

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including the telephone numbers, in which they might be contacted or, at the option of the

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department of health, printed materials including a toll-free, twenty-four (24) hour a day

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telephone number which may be called to obtain, orally, such a list and description of agencies in

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the locality of the caller and of the services they offer; and

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     (2) Materials designed to inform the female of the probable anatomical and physiological

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characteristics of the unborn child at two (2) week gestational increments from the time when a

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female can be known to be pregnant to full term, including any relevant information on the

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possibility of the unborn child’s survival and pictures or drawings representing the development

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of unborn children at two (2) week gestational increments; provided, that any such pictures or

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drawings must contain the dimensions of the fetus and must be realistic and appropriate for the

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stage of pregnancy depicted. The materials shall be objective, nonjudgmental and designed to

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convey only accurate scientific information about the unborn child at the various gestational ages.

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The material shall also contain objective information describing the methods of abortion

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procedures commonly employed, and the medical risks commonly associated with each such

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procedure, the possible detrimental psychological effects of abortion and the medical risks

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commonly associated with carrying a child to term.

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     (b) Legibility. The materials referred to in subsection (a) of this section shall be printed in

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a typeface large enough to be clearly legible. The website provided for in section 23-4.13-5 shall

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be maintained at a minimum resolution of 70 DPI (dots per inch). All pictures appearing on this

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website shall be a minimum of 200x300 pixels. All letters on the website shall be a minimum of

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eleven (11) point font. All information and pictures shall be accessible with an industry standard

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browser, requiring no additional plug-ins.

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     (c) Availability. The materials required under this section shall be available at no cost

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from the department of health upon request and in appropriate number to any person, facility or

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hospital.

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     23-4.13-5. Internet website. -- The department of health shall develop and maintain a

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stable internet website to provide the information described under section 23-4.13-4. No

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information regarding who uses the website shall be collected or maintained. The department of

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health shall monitor the website on a daily basis to prevent and correct tampering.

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     23-4.13-6. Procedure in case of medical emergency. -- When a medical emergency

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compels the performance of an abortion, the physician shall inform the female, prior to the

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abortion if possible, of the medical indications supporting the physician’s judgment that an

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abortion is necessary to avert her death or that a twenty-four (24) hour delay will create a serious

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risk of substantial and irreversible impairment of a major bodily function.

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     23-4.13-7. Reporting requirements. -- (a) Reporting form. Within ninety (90) days

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after this act is enacted, the department of health shall prepare a reporting form for physicians

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containing a reprint of this act and listing:

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     (1) The number of females to whom the physician provided the information described in

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subsection (a) of section 23-4.13-3, of that number, the number provided by telephone and the

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number provided in person; and of each of those numbers, the number provided in the capacity of

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a referring physician and the number provided in the capacity of a physician who is to perform

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the abortion;

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     (2) The number of females to whom the physician or an agent of the physician provided

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the information described in subsection (b) of section 23-4.13-3 of that number, the number

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provided by telephone and the number provided in person; of each of those numbers, the number

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provided in the capacity of a referring physician and the number provided in the capacity of a

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physician who is to perform the abortion; and of each of those numbers, the number provided by

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the physician and the number provided by an agent of the physician;

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     (3) The number of females who availed themselves of the opportunity to obtain a copy of

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the printed information described in section 23-4.13-4 other than on the website, and the number

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who did not; and of each of those numbers, the number who, to the best of the reporting

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physician’s information and belief, went on to obtain the abortion; and

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     (4) The number of abortions performed by the physician in which information otherwise

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required to be provided at least twenty-four (24) hours before the abortion was not so provided

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because an immediate abortion was necessary to avert the female’s death, and the number of

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abortions in which such information was not so provided because a delay would create serious

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risk of substantial and irreversible impairment of a major bodily function.

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     (b) Distribution of forms. The department of health shall ensure that copies of the

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reporting forms described in subsection (a) of this section are provided:

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     (1) Within one hundred twenty (120) days after this act is enacted, to all physicians

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licensed to practice in this state;

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     (2) To each physician who subsequently becomes newly licensed to practice in this state,

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at the same time as official notification to that physician that the physician is so licensed; and

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     (3) By December 1 of each year, other than the calendar year in which forms are

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distributed in accordance with subdivision (1) of this subsection, to all physicians licensed to

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practice in this state.

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     (c) Reporting requirement. By February 28 of each year following a calendar year in any

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part of which this act was in effect, each physician who provided or whose agent provided,

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information to one or more females in accordance with section 23-4.13-3 during the previous

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calendar year shall submit to the department of health a copy of the form described in subsection

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(a) of this section, with the requested data entered accurately and completely.

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     (d) Failure to report as required. Reports that are not submitted by the end of a grace

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period of thirty (30) days following the due date shall be subject to a late fee of five hundred

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dollars ($500) for each additional thirty (30) day period or portion of a thirty (30) day period they

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are overdue. Any physician required to report in accordance with this section who has not

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submitted a report, or has submitted only an incomplete report, more than one year following the

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due date, may, in an action brought by the department of health, be directed by a court of

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competent jurisdiction to submit a complete report within a period stated by court order or be

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subject to sanctions for civil contempt.

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     (e) Public statistics. By June of each year the department of health shall issue a public

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report providing statistics for the previous calendar year compiled from all of the reports covering

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that year submitted in accordance with this section for each of the items listed in subsection (a) of

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this section. Each such report shall also provide the statistics for all the previous calendar years,

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adjusted to reflect any additional information from late or corrected reports. The department of

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health shall take care to ensure that none of the information included in the public reports could

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reasonably lead to the identification of any individual provided information in accordance with

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subsections (a) or (b) or subsection (c)

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     (f) Modifications by regulation. The department of health may by regulation,

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promulgated in accordance with the administrative procedures act, chapter 35 of title 42, alter the

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dates established by subsections (b)(3), (c) or (e) of this section or consolidate the forms or

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reports described in this section with other forms or reports to achieve administrative convenience

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or fiscal savings or to reduce the burden of reporting requirements, so long as reporting forms are

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sent to all licensed physicians in the state at least once every year and the report described in

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subsection (c) is issued at least once every year.

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     23-4.13-8. Criminal penalties. -- Any person who knowingly or recklessly performs or

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attempts to perform an abortion in violation of this act shall be guilty of a felony. Any physician

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who knowingly or recklessly submits a false report under subsection (c) of section 23-4.13-6 shall

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be guilty of a misdemeanor. No penalty may be assessed against the female upon whom the

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abortion is performed or attempted to be performed. No penalty or civil liability may be assessed

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for failure to comply with paragraph (iii) of subdivision (2) of section 23-4.13-3 or that portion of

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subdivision (3) of section 23-4.13-3 requiring a written certification that the female has been

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informed of her opportunity to review the information referred to in subdivision (2).

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     23-4.13-9. Civil remedies. – (a) Civil suits for violation. Any person upon whom an

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abortion has been performed without complying with this chapter, the father of the unborn child

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who was the subject of such an abortion, or the grandparent of such an unborn child may maintain

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an action against the person who performed the abortion in knowing or reckless violation of this

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chapter for actual and punitive damages. Any person upon whom an abortion has been attempted

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without complying with this chapter may maintain an action against the person who attempted to

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perform the abortion in knowing or reckless violation of this chapter for actual or punitive

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damages.

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     (b) Suit to compel statistical report. If the department of health fails to issue the public

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report required by subsection (c) of section 23-4.13-6 any group of ten (10) or more citizens of

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this state may seek an injunction in a court of competent jurisdiction against the director of the

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department of health requiring that a complete report be issued within a period stated by court

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order. Failure to abide by such an injunction shall subject the director to sanctions for civil

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contempt.

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     (c) Attorney’s fee. If judgment is rendered in favor of the plaintiff in any action

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described in this section, the court shall also render judgment for a reasonable attorney’s fee in

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favor of the plaintiff against the defendant. If judgment is rendered in favor of the defendant and

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the court finds that the plaintiff’s suit was frivolous and brought in bad faith, the court shall also

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render judgment for a reasonable attorney’s fee in favor of the defendant against the plaintiff.

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     23-4.13-10. Protection of privacy in court proceedings. -- In every civil or criminal

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proceeding or action brought under this article, the court shall rule whether the anonymity of any

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female upon whom an abortion has been performed or attempted shall be preserved from public

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disclosure if she does not give her consent to such disclosure. The court, upon motion or sua

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sponte, shall make such a ruling and, upon determining that her anonymity should be preserved,

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shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record

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and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to

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safeguard her identity from public disclosure. Each such order shall be accompanied by specific

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written findings explaining why the anonymity of the female should be preserved from public

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disclosure, why the order is essential to that end, how the order is narrowly tailored to serve that

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interest, and why no reasonable less restrictive alternative exists. In the absence of written

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consent of the female upon whom an abortion has been performed or attempted, anyone, other

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than a public official, who brings an action under subsection (a) of section 23-4.13-8 shall do so

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under a pseudonym. This section may not be construed to conceal the identity of the plaintiff or

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of witnesses from the defendant.

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     23-4.13-11. Severability. -- If any provision of this chapter or the application thereof to

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any person or circumstances is held invalid, such invalidity shall not affect any other provisions

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or applications of the chapter, which can be given effect without the invalid provision or

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application, and to this end the provisions of this chapter are declared to be severable.

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     SECTION 2. This act shall take effect upon passage.

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LC00588

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO HEALTH AND SAFETY -- WOMEN'S RIGHT TO KNOW ACT

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     This act would establish informed consent procedures for women seeking abortions.

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     The act would take effect upon passage.

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LC00588

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