SB 230--
Session of 1997
By Senators Harrington, Bleeker, Brownlee, Clark, Gilstrap, Hardenbur- ger, Harris, Jordan, Lawrence, Sallee, Salmans, Steffes, Tyson, Um- barger and Vidricksen

11 AN ACT establishing requirements for informed consent relating to abor- 12 tions; prohibiting certain acts and providing penalties for violations; 13 repealing K.S.A. 65-6706. 14 15 Be it enacted by the Legislature of the State of Kansas: 16 Section 1. As used in this act: 17 (a) ``Abortion'' means the use or prescription of any instrument, med- 18 icine, drug or any other substance or device with the intent to terminate 19 the pregnancy of a woman. Such use or prescription is not an abortion if 20 done with the intent to (1) save the life or preserve the health of an 21 unborn child, (2) remove a dead unborn child or (3) deliver an unborn 22 child prematurely in order to preserve the health of both the mother and 23 the unborn child. 24 (b) ``Coercion'' means restraining or dominating the choice of a minor 25 female by force, threat of force or deprivation of food and shelter. 26 (c) ``Complication'' means that condition which includes but is not 27 limited to hemorrhage, infection, uterine perforation, cervical laceration, 28 pelvic inflammatory disease, endometritis and retained products. The de- 29 partment may further define ``complication.'' 30 (d) ``Conception'' means the fusion of a human spermatozoon with a 31 human ovum. 32 (e) ``Department'' means the department of health and environment. 33 (f) ``Emancipated minor'' means any person under 18 years of age 34 who is or has been married or who has been emancipated. 35 (g) ``Facility'' or ``medical facility'' means any public or private hos- 36 pital, clinic, center, medical school, medical training institution, health 37 care facility, physician's office, infirmary, dispensary, ambulatory surgical 38 treatment center or other institution or location wherein medical care is 39 provided to any person. 40 (h) ``First trimester'' means the first 12 weeks of gestation. 41 (i) ``Gestational age'' means the time that has elapsed since the first 42 day of the woman's last menstrual period. 43 (j) ``Hospital'' means a licensed medical care facility. SB 230

 1    (k)  ``Incompetent'' means any person who has been adjudged a dis-
 2  abled person and has had a guardian appointed under the act for obtaining
 3  a guardian or conservator, or both.
 4    (l)  ``Medical emergency'' means that condition which, on the basis of
 5  the physician's good-faith clinical judgment, so complicates the medical
 6  condition of a pregnant woman as to necessitate the immediate abortion
 7  of the woman's pregnancy to avert the woman's death or for which a delay
 8  will create serious risk of substantial and irreversible impairment of a
 9  major bodily function.
10    (m)  ``Physician'' means any person licensed to practice medicine and
11  surgery under the laws of this state.
12    (n)  ``Pregnant'' or ``pregnancy'' means that female reproductive con-
13  dition of having an unborn child in the mother's body.
14    (o)  ``Qualified person'' means an agent of the physician who is a li-
15  censed psychologist, registered masters level psychologist, licensed social
16  worker, registered professional counselor, registered nurse or physician.
17    (p)  ``Unborn child'' means the offspring of human beings from con-
18  ception until birth.
19    (q)  ``Viable'' shall have the meaning ascribed to such term in K.S.A.
20  65-6701 and amendments thereto.
21    (r)  ``Woman'' means any female person.
22    Sec. 2.  No abortion shall be performed or induced without the vol-
23  untary and informed consent of the woman upon whom the abortion is
24  to be performed or induced. Except in the case of a medical emergency,
25  consent to an abortion is voluntary and informed only if:
26    (a)  At least eight hours before the abortion, the physician who is to
27  perform the abortion or the referring physician has informed the woman,
28  orally and in person, of:
29    (1)  The name of the physician who will perform the abortion.
30    (2)  A description of the proposed abortion method and of medical
31  risks of abortion including, but not limited to: (A) Immediate medical
32  risks:  Pelvic infection, incomplete abortion, blood clots in the uterus,
33  heavy bleeding, cut or torn cervix, perforation of the uterine wall, anes-
34  thesia-related complications, Rh immune globulin therapy; and (B) long-
35  term medical risks including risk to future childbearing; and (C) alter-
36  natives to the abortion that a reasonable patient would consider material
37  to the decision of whether to undergo the abortion.
38    (3)  The probable gestational age of the unborn child at the time the
39  abortion is to be performed.
40    (4)  The medical risks associated with carrying her child to term.
41    (b)  At least eight hours before the abortion, the physician who is to
42  perform the abortion, the referring physician or a qualified person has
43  informed the woman, orally and in person, that:
SB 230

 1    (1)  Medical assistance benefits may be available for prenatal care,
 2  childbirth and neonatal care, and that more detailed information on the
 3  availability of such assistance is contained in the printed materials given
 4  to the woman and described in section 4 and amendments thereto.
 5    (2)  The printed materials in section 4 and amendments thereto de-
 6  scribe the unborn child and list agencies which offer alternatives to abor-
 7  tion.
 8    (3)  The father of the unborn child is liable to assist in the support of
 9  the child, even in instances in which the father has offered to pay for the
10  abortion. In the case of rape or incest, this information may be omitted.
11    (4)  The woman is free to withhold or withdraw consent to the abor-
12  tion at any time before or during the abortion without affecting the wom-
13  an's right to future care or treatment and without the loss of any state or
14  federally funded benefits to which the woman might otherwise be enti-
15  tled.
16    (c)  The information in sections 2 and 4, and amendments thereto, is
17  provided to the woman individually and in a private room to protect the
18  woman's privacy and maintain the confidentiality of the woman's decision
19  and to ensure that the information focuses on individual circumstances
20  and that the woman has an adequate opportunity to ask questions.
21    (d)  At least eight hours before the abortion, the woman is given a
22  copy of the printed materials described in section 4 and amendments
23  thereto. If the woman is unable to read the materials, they shall be read
24  to the woman. If the woman asks questions concerning any of the infor-
25  mation or materials, answers shall be provided in the woman's own lan-
26  guage.
27    (e)  The woman certifies in writing on a duplicate checklist form pro-
28  vided by the department prior to the abortion that the information re-
29  quired to be provided under subsections (a), (b) and (d) has been pro-
30  vided. All physicians who perform abortions shall report the total number
31  of certifications received monthly to the department. The department
32  shall make the number of certifications received available to the public
33  on an annual basis.
34    (f)  Prior to the performance of the abortion, the physician who is to
35  perform the abortion receives the duplicate copy of the written certifi-
36  cation prescribed by subsection (e).
37    (g)  The woman is not required to pay any amount for the abortion
38  procedure until the eight-hour waiting period has expired.
39    Sec. 3.  (a) It shall be unlawful for any individual to coerce a woman
40  to undergo an abortion.
41    (b)  In the case of a minor, a parent, guardian or any other person
42  shall not coerce a minor to have an abortion performed. If a minor is
43  denied financial support by the minor's refusal to have an abortion per-
SB 230

 1  formed, the minor shall be deemed emancipated for the purposes of
 2  eligibility for public-assistance benefits, except that such benefits may not
 3  be used to obtain an abortion.
 4    Sec. 4.  (a) The department shall cause to be published, within 30
 5  days after the effective date of this act, and shall update on an annual
 6  basis, the following easily comprehensible printed materials:
 7    (1)  Geographically indexed materials designed to inform the woman
 8  of public and private agencies and services available to assist a woman
 9  through pregnancy, upon childbirth and while the woman's child is de-
10  pendent, including but not limited to adoption agencies. The materials
11  shall include a comprehensive list of the agencies, a description of the
12  services they offer, and the telephone numbers and addresses of the agen-
13  cies, and shall inform the woman about available medical assistance ben-
14  efits for prenatal care, childbirth and neonatal care.
15    The department shall ensure that the materials described in this section
16  are comprehensive and do not directly or indirectly promote, exclude or
17  discourage the use of any agency or service described in this section. The
18  materials shall be made available in both English and Spanish language
19  version. The materials shall also contain a toll-free, twenty-four-hour-a-
20  day telephone number which may be called to obtain orally such a list
21  and description of agencies in the locality of the caller and of the services
22  they offer. The materials shall include the following statement:
23  ``There are many public and private agencies willing and able to help you to carry your child
24  to term, and to assist you and your child after your child is born, whether you choose to
25  keep your child or to place the child for adoption. The state of Kansas strongly urges you
26  to contact one or more of these agencies before making a final decision about abortion. The
27  law requires that your physician or your physician's agent give you the opportunity to call
28  agencies like these before you undergo an abortion.''
29    (2)  The materials shall contain a toll-free, twenty-four-hour-a-day tel-
30  ephone number which may be called to obtain orally a list or description
31  of agencies in the locality of the caller that shall include but is not limited
32  to the department of health and environment and the American cancer
33  society.
34    (3)  The materials shall state that it is unlawful for any individual to
35  coerce a woman to undergo an abortion, that any physician who performs
36  an abortion upon a woman without the woman's informed consent may
37  be liable to the woman for damages in a civil action at law and that the
38  law permits adoptive parents to pay costs of prenatal care, childbirth and
39  neonatal care.
40    (4)  Materials that include information on the support obligations of
41  the father of a child who is born alive, including but not limited to the
42  father's legal duty to support his child, which may include child support
43  payments and health insurance, and the fact that paternity may be estab-
SB 230

 1  lished by the father's signature on a birth certificate or statement of pa-
 2  ternity or by court action. More information concerning paternity estab-
 3  lishment and child support services and enforcement may be obtained by
 4  calling state or county public assistance agencies.
 5    (5)  Materials that inform the pregnant woman of the probable ana-
 6  tomical and physiological characteristics of the unborn child at two-week
 7  gestational increments from fertilization to full term, including pictures
 8  or drawings representing the development of unborn children at two-
 9  week gestational increments, and any relevant information on the possi-
10  bility of the unborn child's survival outside the body of the mother. Any
11  such pictures or drawings must contain the dimensions of the unborn
12  child and must be realistic. The materials shall be objective, nonjudg-
13  mental and designed to convey only accurate scientific information about
14  the unborn child at the various gestational ages.
15    (6)  Materials which contain objective information describing the
16  methods of abortion procedures commonly employed, the medical risks
17  commonly associated with each such procedure and the medical risks
18  associated with carrying a child to term.
19    (7)  A duplicate checklist certification form to be used by physicians
20  or a qualified person under subsection (d) of section 2 which will list all
21  the items of information which are to be given to women by physicians
22  or their agents under this act.
23    Sec. 5.  Where a medical emergency compels the performance of an
24  abortion, the physician shall inform the woman, before the abortion if
25  possible, of the medical indications supporting the physician's judgment
26  that an abortion is necessary to avert the woman's death or to avert sub-
27  stantial and irreversible impairment of a major bodily function.
28    Sec. 6.  (a) Any person who intentionally, knowingly or recklessly vi-
29  olates this act is guilty of a class A person misdemeanor.
30    (b)  No physician shall be guilty of violating this act if the physician
31  demonstrates, by a preponderance of the evidence, that the physician
32  reasonably believed that furnishing the information would have resulted
33  in a severely adverse effect on the physical or mental health of the preg-
34  nant woman.
35    Sec. 7.  In addition to whatever remedies are available under the
36  common or statutory law of this state, failure to comply with the require-
37  ments of this act shall:
38    (a)  Provide a basis for a civil malpractice action. Any intentional vi-
39  olation of this act shall be admissible in a civil suit as prima facie evidence
40  of a failure to obtain an informed consent. When requested, the court
41  shall allow a woman to proceed using solely the woman's initials or a
42  pseudonym and may close any proceedings in the case and enter other
43  protective orders to preserve the privacy of the woman upon whom the
SB 230

 1  abortion was performed.
 2    (b)  Provide a basis for professional disciplinary action under the Kan-
 3  sas healing arts act.
 4    (c)  Provide a basis for recovery for the woman for the death of her
 5  unborn child, whether or not the unborn child was viable at the time the
 6  abortion was performed or was born alive.
 7    Sec. 8.  Any physician who complies with the provisions of this act
 8  shall not be held civilly liable to a patient for failure to obtain informed
 9  consent to the abortion.
10    Sec. 9.  (a) Nothing in this act shall be construed as creating or rec-
11  ognizing a right to abortion.
12    (b)  It is not the intention of this act to make lawful an abortion that
13  is currently unlawful.
14    Sec. 10.  The legislature, by concurrent resolution, may appoint one
15  or more of its members, who sponsored or cosponsored this act in the
16  member's official capacity, to intervene as a matter of right in any case
17  in which the constitutionality of this law is challenged.
18    Sec. 11.  The provisions of the act are declared to be severable, and
19  if any provision, word, phrase or clause of the act or the application
20  thereof to any person shall be held invalid, such invalidity shall not affect
21  the validity of the remaining portions of this act.
22    Sec. 12.  K.S.A. 65-6706 is hereby repealed.
23    Sec. 13.  This act shall take effect and be in force from and after its
24  publication in the statute book.