| Introduced By: Senators Graziano, McCaffrey, Alves, Celona and J. Montalbano |
| Date Introduced: February 6, 1997 |
| Referred To: Senate Committee on Health, Education and Welfare |
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:
{ADD WOMEN'S RIGHT TO KNOW ACT ADD}
{ADD 23-4.12-1. Short title. -- ADD} {ADD This act may be known and cited as the "Women's Right to Know Act." ADD}
{ADD 23-4.12-2. Legislative findings. -- ADD} {ADD The general assembly hereby finds and declares that:
(1) 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.
(2) 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 two (2) alternatives: giving birth or having an abortion.
(3) Most women who seek abortions do not have any relationship with the physician who performs the abortion, before or after the procedure. They do not return to the same facility for post-surgical care. In most instances, the woman's only actual contact with the physician occurs simultaneously with the abortion procedure, with little opportunity to receive counseling concerning her decision.
(4) The decision to abort "is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences".
(5) The medical, emotional, and physical consequences of an abortion are serious and can be lasting.
(6) Abortion facilities or providers offer only limited and/or impersonal counseling opportunities. ADD}
{ADD 23-4.12-3. Declaration of purpose. -- ADD} {ADD The purpose of this act is to:
(1) ensure that every woman considering an abortion receive complete 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.
(2) protect unborn children from a woman's uniformed decision to have an abortion.
(3) 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." ADD}
{ADD 23-4.12-4. Definitions. -- ADD} {ADD As used in this chapter: ADD}
{ADD (a) "Abortion" means the use or prescription of any instrument, medicine, drug, or any other substance or device with the intent to terminate the pregnancy of a woman known by the defendant to be pregnant. Such use or prescription 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, or (c) deliver an unborn child prematurely in order to preserve the health of both the mother (pregnant woman) and her unborn child.
(b) "Conception" means the fusion of a human spermatozoon with a human ovum.
(c) "Department" means the department of health of the state of Rhode Island.
(d) "Gestational age" means the time that has elapsed since the first day of the woman's last menstrual period.
(e) "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 a major bodily function.
(f) "Physician" means any person licensed to practice medicine in the state. The term includes medical doctors and doctors of osteopathy.
(g) "Pregnant" or "pregnancy" means that female reproductive condition of having an unborn child in the mother's body.
(h) "Qualified person" means an agent of the physician who is a psychologist, licensed social worker, licensed professional counselor, registered nurse, or physician.
(i) "Unborn child" means the offspring of human beings from conception until birth.
(j) "Viability" and "viable" means that stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-supportive systems.
(k) "Woman" means any female person. ADD}
{ADD 23-4.12-5. Informed consent requirement. -- ADD} {ADD 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:
(1) 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:
(i) The name of the physician who will perform the abortion.
(ii) A description of the proposed abortion method and of those risks and alternatives to the method that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.
(iii) The probable gestational age of the unborn child at the time the abortion is to be performed. If the unborn child is viable or has reached the gestational age of twenty-four (24) weeks, that (a) the unborn child may be able to survive outside the womb; and (b) 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 the health of the child.
(iv) The probable anatomical and physiological characteristics of the unborn child at the time the abortion is to be performed.
(v) The medical risks associated with carrying her child to term.
(vi) 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.
(2) 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, that:
(i) The printed materials required by section 23-4.12-7 describe the unborn child and list agencies which offer alternatives to abortion.
(ii) The father of the unborn child is liable to assist in the support of her child, even in instances where he has offered to pay for the abortion. In the case of rape, this information may be omitted.
(iii) She is free to withhold or withdraw her consent to the abortion at any time before or during the abortion 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.
(3) The information in section 23-4.12-5 (1) and (2) 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.
(4) At least twenty-four (24) hours before the abortion, the woman is given a copy of the printed materials described in section 23-4.12-6. 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 her own language. If an interpreter is used the interpreter shall be named and reference to such use shall be made on the consent form.
(5) The woman certifies in writing, on a form provided by the department, prior to the abortion, that the information required to be provided under subparagraphs (1), (2) and (4) of this section has been provided. All physicians who perform abortions, shall report the total number of certifications received monthly to the department. The department shall make the number of certifications received available on an annual basis.
(6) Prior to the performance of the abortion, the physician who is to perform the abortion or his agent receives a copy of the written certification prescribed by paragraph (5) of this section.
(7) The woman is not required to pay any amount for the abortion procedure until the twenty-four (24) hour waiting period has expired. ADD}
{ADD 23-4.12-6. Publication of materials. -- ADD} {ADD (a) The department of health shall cause to be published in English, Spanish, Portuguese, Cambodian and French, within sixty (60) days of the passage of this act, and shall update on an annual basis, the following easily comprehensible printed materials:
(1) Geographically indexed materials designed to 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 inform the woman about available medical assistance benefits for prenatal care, childbirth, and neonatal care and about the support obligations of the father of a child who is born alive. 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, twenty-four (24) hour a day telephone number which may be called to obtain orally such a list and description of agencies in the locality of the caller and of the services they offer. The materials shall state that it is unlawful for any individual to coerce a woman to undergo an abortion, 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 or a statement of equal content:
"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 Rhode Island strongly urges you to contact them 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."
(2) 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 pictures or drawings representing the development of unborn children at two (2) week gestational increments, and any relevant information on the possibility of the unborn child's survival; provided that any such pictures or drawings must contain the dimensions of the unborn child and must 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. The material shall also contain objective information describing the methods of abortion procedures commonly employed, and the medical risks commonly associated with each such procedure, and the medical risks associated with carrying a child to term.
A certification form to be used by physicians or their agents under this section which will list all the items of information which are to be given to women by physicians or their agents under this chapter.
(b) Format. -- The materials shall be printed in a typeface large enough to be clearly legible.
(c) Free distribution. -- The materials required under this section shall be available at no cost from the Rhode Island department of health upon request and in appropriate number to any person, facility or hospital. ADD}
{ADD 23-4.12-7. Emergency. -- ADD} {ADD Where 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 his/her judgment that an abortion is necessary to avert her death or to avert substantial and irreversible impairment of a major bodily function. The attending physician shall certify in writing in the patient's medical record that such emergency exists, and the medical basis for his or her opinion. ADD}
{ADD 23-4.12-8. Coercion prohibited. -- ADD} {ADD a) It shall be unlawful for any individual to coerce a woman to undergo an abortion.
(b) In the case of a minor, a parent, guardian, or any other person shall not coerce a minor to have an abortion performed. If a minor is denied financial support by 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. ADD}
{ADD 23-4.12-9. Criminal penalties. -- ADD} {ADD (a) Any person who intentionally, knowingly, or recklessly violates this chapter is guilty of a felony.
(b) No physician shall be guilty of violating this chapter if he or she can demonstrate, by a preponderance of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the pregnant woman. ADD}
{ADD 23-4.12-10. Civil penalties. -- ADD} {ADD In addition to whatever remedies are available under the common or statutory law of this state, failure to comply with the requirements of this chapter shall:
(a) 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 an 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 which the abortion was performed.
(b) Provide a basis for professional disciplinary action under chapter 5-37.
(c) Provide a basis for recovery for the woman under the Wrongful Death Act, whether or not the unborn child was viable at the time the abortion was performed or was born alive. ADD}
{ADD 23-4.12-11. Limitation on civil liability. -- ADD} {ADD Any physician who complies with the provisions of this chapter may not be held civilly liable to his patient for failure to obtain informed consent to the abortion. ADD}
{ADD 23-4.12-12. Severability. -- ADD} {ADD The provisions of this chapter are declared to be severable, and if any provision, word, phrase, or clause of this chapter or the application thereof to any person shall be held invalid, such invalidity shall not affect the validity of the remaining portions of this chapter. ADD}
{ADD 23-4.12-13. Construction. -- ADD} {ADD (a) Nothing in this chapter
shall be construed as creating or recognizing a right to abortion.(b) It is not the intention of this law to make lawful an abortion that is currently unlawful. ADD}
{ADD 23-4.12-14. Right of intervention. -- ADD} {ADD The general assembly, by joint resolution, may appoint one (1) of its members, as a matter of right and in his official capacity, to intervene as a matter of right in any case in which the constitutionality of this law is challenged. ADD}
SECTION 2. This act shall take effect sixty (60) days after passage.
* * *
This act would provide for a woman's right to be provided with complete and accurate information regarding aborting and her alternatives.
The act would take effect sixty (60) days after passage.
