Session of 1999
SENATE BILL No. 142
By Committee on Federal and State Affairs
9 AN ACT concerning the termination of pregnancies; imposing limita-
10 tions on postviability abortions; imposing penalties for violations
11 thereof; amending K.S.A. 1998 Supp. 65-445, 65-6703 and 65-6712
12 and repealing the existing sections; also repealing K.S.A. 1998 Supp.
13 65-2837b and 65-6721.
15 Be it enacted by the Legislature of the State of Kansas:
16 Section 1. K.S.A. 1998 Supp. 65-445 is hereby amended to read as
17 follows: 65-445. (a) Every medical care facility shall keep written records
18 of all pregnancies which are lawfully terminated within such medical care
19 facility and
shall annually shall submit a written report thereon to the
20 secretary of health and environment in the manner and form prescribed
21 by the secretary. Every person licensed to practice medicine and surgery
22 shall keep a record of all pregnancies which are lawfully terminated by
23 such person in a location other than a medical care facility and
24 annually shall submit a written report thereon to the secretary of health
25 and environment in the manner and form prescribed by the secretary.
26 (b) Each report required by this section shall include the number of
27 pregnancies terminated during the period of time covered by the report,
28 the type of medical facility in which the pregnancy was terminated
formation required to be reported under K.S.A. 65-6703 and amend-
ments thereto if applicable to the pregnancy terminated, and such other
31 information as may be required by the secretary of health and environ-
, but. The report shall not include the names of the persons whose
33 pregnancies were so terminated.
34 (c) Information obtained by the secretary of health and environment
35 under this section shall be confidential and shall not be disclosed in a
36 manner that would reveal the identity of any person licensed to practice
37 medicine and surgery who submits a report to the secretary under this
38 section or the identity of any medical care facility which submits a report
39 to the secretary under this section
, except that such information, including
information identifying such persons and facilities may be disclosed to
the state board of healing arts upon request of the board for disciplinary
action conducted by the board and may be disclosed to the attorney gen-
eral upon a showing that a reasonable cause exists to believe that a vio-
lation of this act has occurred. Any information disclosed to the state
board of healing arts or the attorney general pursuant to this subsection
shall be used solely for the purposes of a disciplinary action or criminal
proceeding. Except as otherwise provided in this subsection, information
48 obtained by the secretary under this section may be used only for statis-
49 tical purposes
and. Such information shall not be released in a manner
50 which would identify any county or other area of this state in which the
51 termination of the pregnancy occurred.
52 A violation of this subsection (c) is a class A nonperson misdemeanor.
53 (d) In addition to
such the criminal penalty authorized under sub-
54 section (c), any person licensed to practice medicine and surgery or med-
55 ical care facility whose identity is revealed in violation of this section may
56 bring a civil action against the responsible person or persons for any dam-
57 ages to the person licensed to practice medicine and surgery or medical
58 care facility caused by such violation.
59 (e) For the purpose of maintaining confidentiality as provided by sub-
60 sections (c) and (d), reports of terminations of pregnancies required by
61 this section shall identify the person or facility submitting such reports
62 only by confidential code number assigned by the secretary of health and
63 environment to such person or facility and the department of health and
64 environment shall maintain such reports only by such number.
65 Sec. 2. K.S.A. 1998 Supp. 65-6703 is hereby amended to read as
66 follows: 65-6703. (a) Nothing in this section shall be construed as elimi-
67 nating the necessity for compliance with the requirements and duties im-
68 posed by the woman's right-to-know act.
69 (b) No person shall perform or induce an abortion when the fetus is
70 viable unless such person is a physician and has a documented referral
71 from another physician not legally or financially affiliated with the phy-
72 sician performing or inducing the abortion and both physicians determine
: (1) the abortion is necessary to preserve the life or protect the phys-
74 ical or mental health of the pregnant woman
; or (2) a continuation of the
pregnancy will cause a substantial and irreversible impairment of a major
bodily function of the pregnant woman.
(b) (1) Except in the case of a medical emergency, prior to perform-
ing an abortion upon a woman, the physician shall determine the gesta-
tional age of the fetus according to accepted obstetrical and neonatal
practice and standards applied by physicians in the same or similar cir-
cumstances. If the physician determines the gestational age is less than
22 weeks, the physician shall document as part of the medical records of
the woman the basis for the determination.
(2) If the physician determines the gestational age of the fetus is 22
or more weeks, prior to performing an abortion upon the woman the
physician shall determine if the fetus is viable by using and exercising
that degree of care, skill and proficiency commonly exercised by the or-
dinary skillful, careful and prudent physician in the same or similar cir-
cumstances. In making this determination of viability, the physician shall
perform or cause to be performed such medical examinations and tests
as are necessary to make a finding of the gestational age of the fetus and
shall enter such findings and determinations of viability in the medical
record of the woman.
(3) If the physician determines the gestational age of a fetus is 22 or
more weeks, and determines that the fetus is not viable and performs an
abortion on the woman, the physician shall report such determinations
and the reasons for such determinations in writing to the medical care
facility in which the abortion is performed for inclusion in the report of
the medical care facility to the secretary of health and environment under
K.S.A. 65-445 and amendments thereto or if the abortion is not per-
formed in a medical care facility, the physician shall report such deter-
minations and the reasons for such determinations in writing to the sec-
retary of health and environment as part of the written report made by
the physician to the secretary of health and environment under K.S.A.
65-445 and amendments thereto.
(4) If the physician who is to perform the abortion determines the
gestational age of a fetus is 22 or more weeks, and determines that the
fetus is viable, both physicians under subsection (a) determine in accord-
ance with the provisions of subsection (a) that an abortion is necessary to
preserve the life of the pregnant woman or that a continuation of the
pregnancy will cause a substantial and irreversible impairment of a major
bodily function of the pregnant woman and the physician performs an
abortion on the woman, the physician who performs the abortion shall
report such determinations, the reasons for such determinations and the
basis for the determination that an abortion is necessary to preserve the
life of the pregnant woman or that a continuation of the pregnancy will
cause a substantial and irreversible impairment of a major bodily function
of the pregnant woman in writing to the medical care facility in which
the abortion is performed for inclusion in the report of the medical care
facility to the secretary of health and environment under K.S.A. 65-445
and amendments thereto or if the abortion is not performed in a medical
care facility, the physician who performs the abortion shall report such
determinations, the reasons for such determinations and the basis for the
determination that an abortion is necessary to preserve the life of the
pregnant woman or that a continuation of the pregnancy will cause a
substantial and irreversible impairment of a major bodily function of the
pregnant woman in writing to the secretary of health and environment as
part of the written report made by the physician to the secretary of health
and environment under K.S.A. 65-445 and amendments thereto.
(5) The physician shall retain the medical records required to be kept
under paragraphs (1) and (2) of this subsection (b) for not less than five
years and shall retain a copy of the written reports required under para-
graphs (3) and (4) of this subsection (b) for not less than five years.
(c) A woman upon whom an abortion is performed shall not be pros-
ecuted under this section for a conspiracy to violate this section pursuant
to K.S.A. 21-3302, and amendments thereto.
(d) Nothing in this section shall be construed to create a right to an
abortion. Notwithstanding any provision of this section, a person shall not
perform an abortion that is prohibited by law.
(e) As used in this section, "viable" means that stage of fetal devel-
opment when it is the physician's judgment according to accepted ob-
stetrical or neonatal standards of care and practice applied by physicians
in the same or similar circumstances that there is a reasonable probability
that the life of the child can be continued indefinitely outside the mother's
womb with natural or artificial life-supportive measures.
(f) If any provision of this section is held to be invalid or unconsti-
tutional, it shall be conclusively presumed that the legislature would have
enacted the remainder of this section without such invalid or unconsti-
(g) (c) Upon a first conviction of a violation of this section, a person
shall be guilty of a class A nonperson misdemeanor. Upon a second or
subsequent conviction of a violation of this section, a person shall be guilty
153 of a severity level 10, nonperson felony.
154 Sec. 3. K.S.A. 1998 Supp. 65-6712 is hereby amended to read as
155 follows: 65-6712. Any physician who intentionally, knowingly or recklessly
156 fails to provide in accordance with K.S.A. 1998 Supp. 65-6709, and
157 amendments thereto, the printed materials described in K.S.A. 1998
158 Supp. 65-6710, and amendments thereto,
whether or not an abortion is
actually performed on the woman, is guilty of unprofessional conduct as
160 defined in K.S.A. 65-2837, and amendments thereto.
161 Sec. 4. K.S.A. 1998 Supp. 65-445, 65-2837b, 65-6703, 65-6712 and
162 65-6721 are hereby repealed.
163 Sec. 5. This act shall take effect and be in force from and after its
164 publication in the Kansas register.